author: Spear, J.

text:
    Railroad Company v. Hoffhines.

      Railroads — •Injury to stock by — Fences—Right-of-way—Compensation therefor — ■ Change of name of company — Proof of — How shown — Commissioner of railroads — Report of — Courts will not take judicial notice of contents.

      1. Where, in an action for damages to stock, brought against a railroad company on the ground of negligence in failing to maintain a fence between the company’s right-of-way and the land of the plaintiff, the defence interposed is that in the condemnation proceeding by which the company’s right-of-way was acquired, the expense of fencing was taken into account by the jury, and included in the verdict, and the company, to sustain such defence, gives -in evidence the record of the proceeding, and the record is silent on the subject, no presumption arises that the matter of building and maintaining fences along the line of the railroad was considered, and compensation to the owner therefor awarded in the verdict.
    2. The question whether the terms of a statute authorizing a change of name on the part of a railroad company upon the making of certain subscriptions authorized by the same act, has been complied with or not, is, where pertinent, a proper subject of allegation and proof, and courts will not take judicial notice of a statement in a report of the commissioner of railroads to the effect that the terms of the statute have been complied with, and the name of the company changed.
    (Decided December 10, 1889.)
    Error to the Circuit Court of Vinton County.

      Action was brought by Voss Hoffhines against the Cincinnati, Washington & Baltimore Railroad Company in the Court of Common Picas of Vinton County, to recover for the killing of two horses by a train of cars, July 24, 1885, on the line of the company’s road.- The alleged negligence consisted in the failure of the company to fence its road through the lands of the plaintiff, whereby the horses got upon the track. The main defense interposed was :
    “That in 1853, the Marietta & Cincinnati Railroad Company was a corporation created and existing under the laws of the State of Ohio, and authorized to construct and maintain the railroad named in the plaintiff’s petition, and also to enter upon any land, survey, lay down and construct .said road, and to take any materials necessary to the construction and repair of the same, and to appropriate the lands and materials necessary for that purpose, according to the statute in such case made and provided, and upon such appropriation being made, to retain, own, hold and possess said materials, and to use and occupy said lands, and to hold the same for the purposes for which the same were appropriated, first paying or depositing as required by law, the amount awarded by the jury in such appropriation proceedings, -as compensation and damages to the land owner by reason of such appropriation.
    “ That in pursuance of such authority the said company, having located its road through the enclosed lands and fields of Voss Hoffhines and William Hoffhines, and desiring to appropriate a right-of-way therefor through and upon said enclosed lands and fields of said Hoffhines, and not being able to agree with him or with any authorized agent of his, as to the amount of compensation to be paid therefor, instituted on said-day of — —A. D. 1853, certain proceedings in the Court of Probate of said Vinton County for the condemnation of said right-of-way according to the statute in such case made and provided, and in such proceedings there was condemned and appropriated to the use of the said Marietta & Cincinnati Railroad Company for the purposes aforesaid, out of said enclosed lands and fields, a certain strip or parcel of land, seventy feet wide on each side of, and along the center line of the railroad of the said company as the same was then and now located through the lands of said Hoffhines, and fifty feet wide on each side through the lands of said William Hoffhines; the said rights-of-way thr’ough the lands of Voss Hoffhines so appropriated, being the rights-of-way at the place where the plaintiff claims by his petition a fence should have been erected and maintained by' the defendant, and for lack of which he claims his horses got upon defendant’s track and were killed.
    “That in the proceedings aforesaid the said Voss Hoffhines and William Hoffhines, by their attorney, severally claimed additional compensation or damages for said right-of-way on account of building and keeping up a fence along and xxpon either side of said railroad tx’ack of said railroad company through their premises; and that witnesses were introduced by and on behalf of said Voss and William Hoffhines to prove the cost of building and keeping up said fences, and compensation and damages were accordingly assessed therefor.
    “And the jui’y by their verdict assessed the compensation and damages of said Voss Hoffhines, including building and maiixtaining fences afoi’esaid, at four hundred and ninety-eight dollars, and of said William Hoffhines at seven hundred and seventy-six dollars.
    “That thereupon said company paid the amount of said verdicts, and the cost of said proceedings, and the court rendered a judgment therein to the effect that the said company should hold the said property for the said pxxrposes for which the same was appropriated, and the said company thereupon took possession of said land and held the same for 'the uses and purposes afoi’esaid, until the year 1860, when the entire railroad of said company, including said right-ui-way so appropriated at and along the place aforesaid, and of which the place named in the plaintiff’s petition, where the alleged failure of defendant to fence took place, was and is a part, became and was vested in The Marietta & Cincinnati Railroad Company, as i’e-organized, and was thereafter owned by said re-organized company, until said entire railroad, together with said right-of-way, and all franchises and property whatever of said reorganized company, were purchased by, and by assignment and conveyance, became vested in the defendant, The Cincinnati, Washington & Baltimore Railroad Company, in July, A. D. 1884, and was so owned by it at the time alleged in plaintiff’s petition, and has been ever since so owned.”
    Reply was filed admitting that there was a condemnation proceeding at the time stated; admitting that the award of the jury was paid and possession taken by the company, and denying all other allegations.
    At the trial the defendant requested the court to give in the charge to the jury the following proposition, viz.: “That at this lapse of time, the presumption is that in the condemnation proceedings compensation was considered and awarded for the building and maintaining of fences along the railroad.” The court refused to so charge, to which the defendant excepted, and this is the alleged error here complained of.
    Verdict was given for the plaintiff, and judgment rendered upon it. Error was prosecuted by the company to the circuit court, where the judgment below was affirmed.
    To reverse these judgments this proceeding here is prosecuted.

      W. T. MoOlintiok and E. W. Strong, for plaintiff in error.

      Rannells & Darby, for defendant in error.
   Spear, J.

The question is: Did the trial court err in refusing the request to charge?

It is insisted by plaintiff in error that the time of the trial of the condemnation proceedings there vras no obligation on its part to fence its line of road because the charter of its predecessor, the Marietta & Cincinnati Railroad Company, obtained prior to the enactment of any law requiring railroad companies to fence, imposed no such burden upon it; that the organization of that company was anterior to the passage of the general incorporation act of May 2, 1852, and the company was not affected by the provisions of that act; and inasmuch as the building and maintaining of a fence between the company’s right-of-way and the lands of the adjoining ■owner was, under the constitutional requirement that “compensation therefor shall first be made,” an element of damage proper to be taken into account by the jury in awarding compensation and damages to the land owner, it necessarily follows as a conclusive presumption, that that matter was taken into account by the jury and compensation therefor awarded in the verdict. In other words, the question of the duty of the railroad to fence at the time of the accident is res adjudioata, and having, by satisfying the verdict, paid the ■land owner for making and keeping up a fence, the negligence .which caused the accident was that of the plaintiff, and the •company canuot be held for the consequent damage.

For the purposes of this branch of the inquiry, it may be •assumed, without holding, that the Marietta & Cincinnati Company was not organized under the act of May 2, 1852, entitled “An act to provide for the creation and regulation of incorporated companies in the state of Ohio,” which makes it the duty of every company organized under it to fence its road with a good substantial wooden fence, and therefore, at the time ■of the appropriation, not affected by the provision above referred to. The question then is, does the record of that proceeding furnish a conclusive presumption that the expense of fencing was included in the verdict? The substance of the ■company's petition was that it was necessary on behalf of the ■company, to appropriate the lands described for the use and right-of-way of the company in the construction of its railroad, and that the company had been unable to agree with the owner upon the compensation to be paid for the appropriation by and to its use. The prayer was that the lands “ may be •duly appropriated for the use and purpose aforesaid, and that such proceedings may be had in the premises as may be necessary to perfect the same according to the statute in such case made and provided.” No answer or other pleading was required, and none was filed, and the subject of fencing is nowhere mentioned in the record. The verdict was for a gross sum as damages by reason of the appropriation.

If it may be inferred from the record that the matter of damages by reason of a necessity on the part of the land owner to construct and maintain a fence between his land and that of the company was necessarily determined in the proceeding ; or, if the matter of fence, as an element of damage, was necessarily involved in the proceeding, as shown by the record, then the contention of the plaintiff in error is correct. No duty would devolve upon the company by reason of the statute, to maintain a fence, and the court erred in refusing the instruction asked. But, if the question of fencing might or might not have been involved in the case, then, the' record being silent on that subject, no such presumption would arise. On the contrary, the duty to fence enjoined by the statute of March 23, 1859, (now sec. 3324 Revised Statutes), which provides that every railroad company having the control of a railroad operated in this state, within two yeai’s after the passage of the act or after commencing to run cars, shall construct and maintain fences on both sides of its road, would be imposed upon the company, and the instruction was properly refused. “The question is not what the court might have decided in the former action, but what it did in fact decide as shown by the judgment. A judgment is conclusive by way of estoppel only as to facts, without the proof or admission of which, it could not have been rendered.” Porter v. Wagner, 36 Ohio St. 471.

To sustain the company’s contention reliance must be had on the ,record of the condemnation proceeding alone. That record does not disclose the character of the land sought to be appropriated. We do not overlook the fact that in the answer in this case the company alleges that having located its road through the enclosed lands and fields of the plaintiff, and desiring to appropriate the same, and not being able to agree with the owner, instituted the appropriation proceeding, etc. But this allegation can not help out the record of that proceeding. The learned counsel, in their brief, insist that evidence at the trial “ could not be allowed to contradict, or explain, or do away with, the legal effect of the condemnation proceedings.” Whether, in this broad language the proposition can be maintained or not, we need not stop to discuss. Certain it is that the record itself could not be thus enlarged, and it is the claimed conclusive effect of that record we are here considering. So that, unless it can be satisfactorily shown that the question of fencing was necessarily and always involved in all appropriation inquiries prior to the enactment of the statute requiring railroad companies to fence, it can not be conclusively presumed to have been involved in this one. No attempt has been made to show this, and we think it can not be shown. In the construction of railroads, there are many places where fences are wholly impracticable. The contour of the land may be such as to make fencing impossible, or the existence of permanent buildings just on the line may render a fence wholly unnecessary. This seems too obvious to need elaboration. It follows, as we think, that the record of the condemnation proceedings did not raise a conclusive presumption that the expense of maintaining a fence was, or might have been, taken into account by the jury in making up the verdict, and that the trial court committed no error in refusing the instruction asked.

Another question arises in the case : It was vital to the company’s defense to show that neither the act of May 2, 1852, or the act of March 25, 1859, applied to the Marietta & Cincinnati Railroad Company. Every railroad organized under the former act came within its requirement as to fencing, and presumably all railroad companies are brought within the provisions of the latter act. The burden, therefore, was on the company to show that it was exempt from the duty imposed by those acts. It was admitted at the trial that the defendant is' the successor of the Marietta & Cincinnati Railroad Company, as re-organized, and that the last named company was the successor of the Marietta & Cincinnati Railroad Company, original constructor of the railroad, and that the Cincinnati, Washington & Baltimore Railroad Company, defendant, is the owner of the rights-of-way and franchises of the Marietta & Cincinnati Railroad Company. It is now claimed in argument that the Marietta & Cincinnati Railroad Company was originally incorporated as the Belpre & Cincinnati Railroad Company by special charter, March 8, 1845, and that, by an act passed March 21, 1851, to amend the incorporation act of the Franklin & Ohio River Railroad Company, and for other purposes, it was provided that upon certain subscriptions therein authorized being made the name of the Belpre & Cincinnati Railroad Company should thereupon be changed to the Marietta & Cincinnati Railroad Company ; that the subscriptions were paid, and the corporate name thereupon became changed at once to the Marietta & Cincinnati Railroad Company, and it always acted and was known by that name. It is not insisted that there is any allegation, proof, or admission of this claim. Reference is made to the several acts, which show the incorporation of the roads as stated. To sustain the statement that the subscriptions were paid, and hence that the corporate name became changed at once to the Marietta & Cincinnati Railroad Company, counsel cite the report of the commissioner of railroads for the year 1870, wherein it is stated that the subscriptions were made in conformity with the statute and the name of the company changed to that of the Marietta & Cincinnati Railroad Company. The court is thus asked to take judicial notice, not only of the acts referred to, but of the statement contained in the report. If this can be done the claim is sustained; if it cannot, the claim fails, and there is nothing before the court to show when, or under what law, the Marietta & Cincinnati Railroad Company was organized. There is apparent conflict of decision in this state as to what laws will be judicially noticed, and there is at least doubt whether the act of March 21, 1851, can be so noticed. The holding in Brown v. The State, 11 Ohio, 277, is authority to the effect that such a law can be noticed, while the decision in Railway Co. v. Moore, 33 Ohio St. 384, is to the contrary. We will not here attempt to reconcile these cases. But it may be said of the earlier act, that, although it is in the form of a special law, and classed among the local laws in the yearly volume, yet it is of a public rather than private nature, inasmuch as it contains grants of sovereignty, interesting as well the community whose rights are thereby contracted, or the corporators whose rights arc thereby enlarged. And assuming, without holding, that both acts referred to may be judicially noticed, there still remains the question whether the contents of the commissioners’ report can be so treated. There are certain executive documents, such ■ as official proclamations, treaties with foreign powers, and other public documents issued by the executive or legislature, which courts will notice judicially but an examination of an extended line of authorities fails to disclose a single holding to the effect that documents similar to that of the commissioners’ report may be classed among those of which judicial notice will be taken. Nor can the claim be sustained upon reason. In general, courts will judicially notice only such facts, or conclusions from facts, as are not the proper objects of evidence. Such are styled non-evidential. Wharton on Evidence, vol. 1, sec. 277. It can not be said that the court, from its presumptive knowledge of •of the law, or of public events, would have within judicial cognizance, the statement of the commissioner of railroads as to an antecedent fact. The question whether or not the statute of March 21, 1851, had been complied with, could have been put in issue in the pleadings. It would then have been a proper subject of evidence, and could have been established or disproved by any witness having knowledge of the fact. This could not be true as to matters which the court may judicially notice.

Whether or not this report would have been competent evidence, under proper pleadings, of the statement referred to, we need not inquire. Under the authority of some adjudicated cases, it would appear to be competent, while others (notably Gordon v. Bucknell, 38 Iowa, 438), wTould seem to hold the contrary. In the Iowa case the court held that the report of the register, of the state land office was not competent to show that certain lands in controversy had been patented to a railroad company. However, it is not with a ■question of evidence we are dealing, but with a question of what courts will notice without evidence.

We are of opinion that the report cannot be resorted to by the court for a knowledge of the statement therein contained, and without it there was nothing before the court to establish that the Marietta & Cincinnati Railroad Company, existing in 1853, was tbe company contemplated in the act of March 21, 1851. And inasmuch as proof that this company was organized prior to the act of May 2, 1852, was necessary to the company’s defence, and is not' shown except by the report, referred to, such defence was necessarily unavailing.

Judgment affirmed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Gray v. Kerr.

      Partnership — Accounting between partners— When action for accrues— When statute of limitations begins to rum.

    1. The obligation of a partner to account with his co-partners after the dissolution of the partnership, where there has been no fraudulent application or investment of the partnership property by him, nor agreement making him the liquidating partner, or otherwise giving him possession or control of the partnership assets, is not a continuing or subsisting trust within the meaning of Sec. 4974 of the Revised Statutes.
    2. A cause of action in favor of one partner against his co-partner for an account, accrues upon the dissolution of the partnership, unless there is some agreement, express or implied, fixing a period for accounting beyond that time, or circumstances rendering an accounting then impracticable.
    3. Such actions are governed by Section 4985 of the Revised Statutes, and can only be brought within ten years after the cause of action accrues..
    (Decided December 10, 1889.)
    Error to the District Court of Belmont County.
    James W. Gray, the plaintiff in error, on the 24th of April, 1878, commenced his action in the Court of Common Pleas of Belmont county to obtain the settlement of the accounts of a co-partnership theretofore existing between the parties, and to-recover whatever balance, might be found due him thereon. The petition states that the agreement of co-partnership was entered into in April, 1864, whereby the partners agreed to furnish, each an equal amount of the capital, and to share equally, the profits or losses of the business. The plaintiff furnished $1,653.05 of the capital while defendant only furnished $488.55, the latter agreeing to pay the former interest. on the difference. The business of the partnership comprised the purchase and sale of two rafts of lumber, and nothing more. The whole of the lumber was sold at a net prpfit of $1,256.83. The plaintiff charges, that in May and June, 1864, the defendant drew out $352.00 of the capital by him invested, and became indebted to the firm in the sum of $2,330.-60; while the plaintiff’s account showed him to be a ci’editor of the firm to the amount of $152.43; and he avers there is due him $1,241.02 with interest from January 1, 1867, and also interest on $758.25 (the amount of the capital upon which the defendant agreed to pay the plaintiff interest) from June 3, 1864.
    The answer admits the agreement of partnership as stated in the petition, and that the partnership terminated ; and denies the other averments of the petition. The defendant also pleads the statute of limitations, in two separate defenses; one, alleging that the plaintiff’s cause of action did not accrue within six years, and the other, that it did not accrue within ten years next before the commencement of the action.
    The allegations of new matter in the answer were denied by a reply, and at the Sping term, 1881, by agreement of the parties, the case was referred to a referee, “ to hear and determine the same, to state an account between the parties, and report his findings of fact and conclusions of law separately.” On the 7th day of March, 1883, the referee filed his report in which his conclusions of fact are stated as follows: “ The co-
    partnership was formed at the time and on the terms in the petition set forth; the capital was furnished by the partners in the amounts shown in the petition, to-wit: James W. Gray, $1,653.05; James Kerr, $488.55. Of the capital 'furnished by James Kerr, he drew out, May 19, 1864, $350.00; June 3, 1864, $2.00. The business stock of the co-partnership consisted of two rafts of lumber; one, bought May 9, 1864, for $2,065.00, and one May 23, 1865, for $1,262.50. The sale of this lumber, partly as rough lumber, and partly as dressed, constituted the partnership transactions. These sales continued, as shown by the books and evidence, until the last of the year 1865, when the partnership transactions, so far as the sales of lumber were concerned, practically ceased; the plaintiff going into another business, and the defendant continuing the lumber business. During the time of the sales of the lumber, and from that time continuously until the present, the plaintiff, by agreement and at the instance of the defendant, was the custodian of the only book in which the partnership accounts were kept, and he made the entries therein, and having no office, the book was kept at the house of the plaintiff, remote from the firm’s place of business, but adjacent to the house of the defendant, the plaintiff and defendant occupying a double dwelling house during the time of the sales, and for some time subsequent. The personal and social relations of the parties were friendly until a comparatively short timebefore suit was brought. At the close of the sales of lumber the plaintiff had charge of the collecting and settlement of the partnership accounts for lumber sold, and continued to have charge of it until the bringing of this suit. After the close of the year 1866, no report was made to defendant of the progress of the settlement. No accounting was ever had between the parties. At or near the close of the year 1866, the defendant claims that his impression was that something would be due him. The plaintiff claims that the defendant was indebted to him, but there was no mutual understanding between them. The main difference between the parties rests on a question arising out of the sale of $1,500.27 of lumber to' Hanes & Wilson. This sale was concluded Nov. 28, 1865, and was a kind of closing out sale. It was paid for as follows : Dec. 9, 1865, check, Wheeling bank, $200.00; May 14, 1866, check, Wheeling bank, $1,300.27. The testimony as to which of the parties got this latter check is conflicting, and depends-entirely on the parties. The check cannot be found, although search has been made for it; but the referee is of the opinion, and so finds, that the weight of testimony is in favor of, and sustains the conclusion, that the defendant got the check of $1,300.27. The referee finds, that at the close of 1865, there were outstanding claims amounting in round numbers to the sum of $2,600.00. Of this sum all but $337.98 was collected during the first six months of 1866. Of this, again, $36.40 has. not been paid, leaving $301.58, which has been collected and settled, as follows:
    1. May, 1867...................................... $50 42
    2. July, 1868, cash.............................. 25 00
    3. March 19, 1869, cash........................ 14 65
    4. -, 1870, settlement....................... ' 53 40
    5. June, 1871, organ............................ 60 00
    6. -, 1871, settlement....................... 44 85
    7. Dec., 1873, settlement....................... 21 72
    8. -, 1875..................................... 31 54 ”

      “ Item No. 1 is charged od the book to the defendant. The account in which it is credited has the following entry : 1867, May, by note to Kerr, $50.42. Items 2 and 8 make up an account against one II. Helling, and the evidence is that the last item was a settlement of some dealings between the plaintiff, or another firm of which he was a member, and the said Helling. Items 5 and 7 constitute the balance due against-one Jager on August 16, 1865. None of these collections were reported to the defendant, nor did he see the book until 1875 or 1876. No demand was made on the defendant for a settlement until the year 1875 or 1876. The defendant, at-the time the demand was made, or a firm of which he was a member, had claims against some firms of which the plaintiff was a member, and on pressing these claims, the plaintiff claimed a balance. Some negotiations were had, but no settlement made. The referee finds that if the account is not barred by the statute of limitations, the amount due the plaintiff from the defendant would be the amount shown in exhibit “ A,” hereto attached and made a part hereof. The master finds that there was no refusal to account made by the defendant until after 1876, and then, that the defendant claimed that he did not owe anything. In addition to the foregoing conclusions of fact, the referee finds that a reasonable time to collect and settle the accounts and claims of the co-partnership would be not to exceed three or four years from the termination of the sales of lumber by it. The referee concludes, as matter of law, that four years from the close of the sales was sufficient time to set the statute running. This would start it in December, 1869, and as the action was not brought until April, 1878, the referee finds, as a conclusion of law, that the plea of the statute of limitations is sustained by the evidence, and that the action of the plaintiff was barred before it was commenced. As a further conclusion, the referee concludes that the defendant is entitled to a decree dismissing the bill of the plaintiff with costs of suit.
    Exhibit “A” referred to in the report is as follows :
    “If the claim is not barred by the statute of limitations, the master would find the amount due plaintiff from the defendant to be eleven hundred and one dollars and twenty-eight cents ($1,101.28), with interest on seven hundred and fifty-eight dollars and twenty-five cents, from June 3, 1864, and on the balance thereof, from the first day of January, 1867.”
    Neither party excepted to the referee’s report. At the next term of the court after it was filed, the plaintiff moved for judgment in his favor, upon it, which motion the court overruled, and rendered judgment for the defendant. The plaintiff excepted, and prosecuted error to the district court to reverse the judgment, solely on the ground that the court erred in overruling his motion, and rendering judgment for the defendant.
    The judgment was affirmed by the district court, and the plaintiff seeks by this proceeding to reverse the judgments of the district and common pleas courts.
    J. Q. Gray, for plaintiff in error.

      L. J. C. Drennen, for defendant in error.
   Williams, J.

Was the plaintiff’s action barred by the statute of limitations ? If it was, there is no error in the judgments of the courts below. If it was not, the plaintiff is entitled to judgment upon the report of the referee.

The original action was one, that before the adoption of the code of civil procedure, was known as a suit in equity for an accounting between co-partners; and much of the discussion of counsel, has been directed to the rules applied in courts of equity, to defenses founded on the lapse of time. Those courts, it is admitted, were not always agreed, either upon the ground on which such defenses were sustained, or in regard to the length of time necessary to make them available. Some, adopted by analogy, the statutes of limitations applicable to similar actions at law, and others, the more general rule, that nothing short of such laches, as, from loss of papers, death of parties, or witnesses, or other circumstances, prevented a just settlement, would bar the action. The referee in the case, reports as his conclusion of law, that there is no certain rule, “as to when the limitation will prevail in equity; ” and he decides that under the circumstances of the case, “ four years from the close of the sales, was sufficient time to set the statute running,” and the action, not having been commenced for more than six years thereafter, was barred. Since the distinction between suits in equity and .actions at law has been abrogated, and the civil action substituted for them, by the code of civil precedure, its provisions limiting the time for commencing actions, apply to all civil actions, whether they be such as were theretofore of a legal, or equitable nature, and must, furnish the guide, in determining whether the plaintiff’s action was barred.

The plaintiff in error contends, however, that the action is expressly saved from the limitations of the statute, by sec. 4974, (Revised Statutes,) which provides that the chapter prescribing the time within which actions may be commenced, shall not apply to the case of a continuing and subsisting trust. His position is, that a trust relation subsists between the oo-partners after the dissolution of the firm, as well as before; that notwithstanding the dissolution, the partnership may be said to continue, with all the incidents pertaining to that relation, for the purpose of settling its affairs, and, until that is accomplished, each partner is a trustee for the other. In support of this position, we are referred to the case of Pomeroy v. Benton, 57 Mo. 531. That was a case “ Where one member of .a firm who had the entire management of the partnership, without the knowledge or consent of his co-partner used the money, assets and credit of the concern in outside speculations, and appropriated the benefits to himself individually, and subsequently rendered to his co-partner a false balance sheet, purporting to correctly exhibit the true condition of the firm affairs, but which in fact did not mention or allude to the outside operations, and assured his co-partner that this statement was correct, and on the faith, of this statement and his representations his partner was induced to convey to him all his interest in the concern, and to execute a bill of sale therefor;” and it was held, that “ outside of any stipulations in the partnership articles, good faith should restrain one partner from embarking the funds or credit of the firm outside of their legitimate scope, and for his own advantage ; and if such ventures are made by one partner, he cannot appropriate the profits to himself, but must account for them to the partnership.”' It is said by the judge who delivered the opinion in the case,. That every partner is the agent of his co-partner is a very familiar doctrine, and it arises from the necessities of his co-partnership relation. A doctrine equally well settled, though not yet hackneyed through frequent quotation, is, that the same rules and tests are applied to the eonduet of partners as are-ordinarily applicable to that of trustees; and that the duties,, functions, rights and obligations of partners may be for the-most part comprehended by the same words which define those of trustees and agents.” And he cites Kelly v. Greenleaf, 3 Story R. 93, where it is held, that “ Where a partner fraudulently, without the consent of his co-partners, applies the partnership funds to his private purposes and profit, or invests the same in his own name and-for his own use, his co-partners, may, if they can distinctly trace the investment, follow it, and treat it as trust property held for the benefit of the firm, by the partner or by any person in whoso hands it may be, except a bona fide purchaser, without notice.”

There is another class of cases which hold, that a liquidating or surviving partner, who becomes possessed of the partnership assets, is a trustee for their proper application to the firm creditors, and, he is bound of course, to distribute to the co-partner, or his representative, his share of any surplus remaining after the discharge of the partnership liabilities. In such case, the surviving or liquidating partner is acting for all the partners, and his possession is not adverse, until a renunciation by him, or so long as the postponement of a final settlement is consistent with a faithful discharge of his duties. It was said by Lord Chancollor Eldon, that a partner, who after dissolution has the actual possession of the partnership property, has it clothed with a trust for the co-partners, to apply the property to the partnership debts. Williams Ex Parte, 11 Vesey Jun. 5. The obligation, however, of the liquidating or surviving partner, to account for the surplus, after the partnership liabilities are discharged, is not that of a trustee, but of a debtor.

No authority is found in these cases, nor in any to which we have been referred, upon which it can be maintained, that a partner who has neither been guilty of a misapplication of the partnership assets, nor had possession or control of them after dissolution, as liquidating or surviving partner, or otherwise, is in any sense a trustee of his co-partner; and no ground for such a claim is perceived. Nor do we think a trust relation exists between partners generally after dissolution, where there has been no agreement, and no concealment or fraud. 2 Bates Partnership, see. 942; Pierce v. McClellan, 93 Ill. 245; McKelvey’s Appeal, 72 Penn. St. 409; Jenny v. Perkins, 17 Mich. 28; Collier on Part., 6th Ed., sec. 297, note 6. It has long been the established doctrine of courts of equity, that subsisting trusts are not within the operation of statutes of limitation, and suits to enforce them are not barred by lapse of time; and yet it is said by most writers on the law of partnerships, to be well settled, that suits for accounting between partners are subject to the bar of the statute, or to limitations analogous to the statute. 2 Bates on Part., sec. 942; Story on Part., 7 Ed. sec. 233, note 4. Pierve v. McClellan, 93 Ill. 245; Collier on Part., 6th Ed., sec 297, note 6.

There is nothing in the circumstances of this case upon which to ground a trust in favor of the plaintiff. No partnership property came to the defendant’s possession after the dissolution, and he was not charged, by any agreement, with the duty of collecting the debts due the partnership, nor did he in fact collect them. It appears from the report of the referee, that the only book pertaining to the partnership business, was kept by the plaintiff, and retained in his custody after the termination of the partnership; and, that he had charge of the collection and settlement of the firm accounts. Nothing came to the hands of the defendant after the dissolution, except the sum of $50.42 in the mouth of May, 1867, and this was entered on the book by the plaintiff at that time; and all other charges against the defendant, were by the plaintiff, entered on the book prior to that time.

The plaintiff’s action, is therefore, subject to the limitations presci’ibed for commencing civil actions, and, since such actions can only be commenced within the period prescribed after the cause of action accrues, it becomes important to determine when, in cases of this kind, the cause of action accrues. The contention of the plaintiff in error is, that the right of action does not accrue until all the partnership claims have been collected, and its liabilities discharged; and authorities are found which support this position. But the generally accepted, and we think the better rule, is, that the right of action is complete, and the statute begins to run, when the partnership is dissolved, unless there is some agreemeent fixing a period for accounting beyond the time of dissolution, or circumstance that renders an accounting then impracticable. In a recent and excellent work on the law of partnerships, the author speaking on this subject says: “ Any partner after dissolution, or if there has been no dissolution, but he has grounds to seek it, can maintain a bill for an accounting, although he is a debtor partner, and no balance will be coming to him, for he has a right to have the assets applied to the debts, to ascertain and reduce his ultimate liability. And though the losses have been caused by his violation of agreement, to the extent of requiring them to fall upon himself.” Bates on Partnership, sec. 921.

In Collier on Partnership, sec. 282, it is said: “ The account which a court of equity decrees between partners is usually consequent upon a dissolution, and Lord Eldon was inclined to hold that it must depend upon a dissolution.”

Mr. Parsons in his work on partnership, on page 326, says, “a court of equity frequently decrees an account between partners; almost always, however, where there has been or is to be a dissolution of the partnership.” And again, on page 554 of the same work, it is said: “ Whenever there is a dissolution of a partnership, for any cause, it would seem that there must be an account, if it be demanded by any party in i nterc-st. But it is always possible for partners or their representatives to agree together upon some arrangements which render an account unnecessary.” In Wood on the Limitation of Actions, that author, speaking of the application of the statute of limitations to actions for an accounting between partners, says: “There is no definite rule of law that the statute begins to run immediately upon the dissolution of the partnership, and the question as to whether it does or not, must depend upon the peculiar circumstances of each case. But unless there is some covenant or agreement, express or implied, fixing a period for accounting beyond the time of dissolution, or circumstances that render an accounting impossible, the statute begins to run from the time when the partnership is in fact dissolved.” Wood on Limitation of Actions, sec. 210. And further on in the same section, it is said, “ Whore partnership affairs are unsettled at the time the firm is dissolved, and by written agreement one of the partners is designated to keep and dispose of the firm assets at such prices and upon such terms as he can, a continuing trust is thereby created, and the statute does not begin to run in favor of the liquidating partner, so long as he acts under the trust, or admits its continúan ce.”

The essential allegations of a petition, in the ordinary case for the settlement of a partneship, are, the fact of a partnership between the parties, the transaction of partnership business by them under it, its dissolution, and unsettled accounts growing out of it. These facts appearing, the petition is not demurable. The judgment under the code in such cases, is as flexible as the former decree in chancery, and may be sufficiently comprehensive to determine the ultimate rights of the parties. It may provide for the sale or other disposition of any remaining assets of the copartnership; the collection of outstanding claims, and the payment of any unsatisfied partnership liabilities; and, then, settle the rights of the parties concerning any surplus of the partnership assets, or reserve their settlement for future adjudication. There was, in this case, no agreement postponing the accounting beyond the dissolution of the copartnership, nor other circumstance rendering an accounting then impossible or impracticable. No charge is made, that the defendant employed the partnership assets for his individual advantage, and there is no imputation of fraud or concealment on his part. Nor was the defendant, in any sense, a liquidating partner. It appears from the report of the referee, that the partnership business terminated at the close of the year 1865, when, the plaintiff went into other business for himself, and defendant did likewise. There was, at that time, it is true, no express agreement of dissolution, but a partnership may bo terminated and dissolved by the completion of its business, and this partnership was then in fact dissolved. At the time of the dissolution there were outstanding claims due the firm, all of which, except a small amount, were collected by the plaintiff within less than a year, and nothing was received by the defendant subsequent to May, 1867. It is not shown that there were any unpaid liabilies of the firm, and no reason appears why the action could not have been commenced immediately after the dissolution; from which time in this case, the statute of limitations began to run.

The only remaining question is, what period of time will bar the action ? A majority of the court are of the opinion that actions of this class are governed by the provisions of section 4985, (Rev. Stats.) and can only be brought within ten years after the cause of action accrues; and, as more than that period elapsed between the dissolution of the partnership and the commence'ment of the plaintiff’s action, the courts below properly held that the action was barred.

Judgment affirmed.


author: Bbadbuuy, J.

text:
    Lewis et al. v. Laylin et al.
    .Records of inferior tribunals — JETow construed — Two-mile assessment pike law— Authority of county commissioners under — Extends to roads within municipal corporations — Practice— What proper procedure to correct errors in proceedings of county commissioners.

    1. (a) In construing the records of inferior tribunals, acting within the scope of their authority, to ascertain whether or not they have followed certain statutory requirements, technical precision will not be required; it will be sufficient if it appear, though informally, from a reasonable construction of the whole transcript of the proceedings, that these requisites have been observed.
    (6) Where the transaction is one extending over a considerable period of time, and requires acts to be done and orders made on different days, it is not essential that the entry recording each separate act should be complete in itself, for it will be aided, if possible, by construing it in connection with what has been already recorded or embodied in written orders that are part of the transcript.
    2. (a) Where county commissioners, in the course of “proceedings had before them under the two-mile assessment pike law, have before them and are considering the reports of the viewers and surveyor, which recommend the improvement to be made, and which also name the lots and lands that will he benefited by the improvement and ought to be assessed therefor, an order made by them directing the improvement to he “ made in accordance with the report of the viewers and surveyor,” is a sufficient stating of the lands which shall he assessed to pay the expense thereof.
    {6) Where the notice to the apportioning committee of their appointment states that they have been “ appointed as a committee to apportion the estimated expense thereof (of the improvement) upon the real property embraced in the order aforesaid,” and directs them to apportion the same “ according to the benefits to he derived therefrom ;” and a list of the lots and lands made by the viewers and surveyor is attached to the notice, it is to he regarded as part thereof, though the notice, proper, does not, in direct terms, make it so, nor expressly refer to this list.
    (c) Where the report of the apportioning committee shows that they acted under this notice, and returned to the auditor and commissioners a list of the lots and lands they had assessed, and the respective sums assessed on each, it will be presumed, in the absence of any evidence to the contrary, that they followed the law and their instructions in the mode of making it.
    3. County commissioners have authority under the two-mile assessment pike law to improve a state, county or township road, although the improvement embraces that part of the highway which lies within the limits of a municipal corporation.
    4. An action does not lie to enjoin the collection of an assessment made under the two-mile assessment pike law, on account of defects or irregularities apparent on the proceedings had before the county commissioners to cause the improvement to be made; the appropriate . remedy for such defects and irregularities is by petition in error (Haff v. Fuller, 45 Ohio St. 495).
    (Decided December 10, 1889.)
    Error to the Circuit Court of Huron County»
    This action was brought in the Court of Common Pleas of Huron County against the commissioners, auditor, treasurer and surveyor of the county, to enjoin the collection of a tax that had been assessed under the provisions of the two-mile assessment pike law. The plaintiffs set forth in their petition as grounds for relief certain alleged irregularities that appeared upon the face of the proceedings instituted and carried on before the county commissioners to secure the projiosed improvement, as well as certain others which did not so appeal’, and which, if denied, must have been established, if at all, by proof. The answer of the defendants denied that there were errors or irregularities, either upon the face of the proceedings had before the commissioners, or in any other respect. The case was carried to the circuit court by an appeal from the judgment of the court of common pleas, and, upon the trial in the former court, the facts were found and stated, separately from the conclusions of law. This finding of fact contains and brings into the record, now before us for review,, the entire proceedings had before the commissioners to establish the improvement and levy the tax now sought to be enjoined ; and as it negatives the existence of any other errors or irregularities than those which do so appear, no others, if any existed, are presented by the record.
    The pleadings and finding of facts disclose that on Aug. 11,1884, a petition was filed, signed by more than five freeholders of the county, asking to have graded and graveled, under the two-mile assessment pike law, a free turnpike from a point within the city of Norwalk, eastwardly about three miles; that the petition was accompanied by a proper bond; that such proceedings were had upon this petition, notwithstanding an earnest and vigorous remonstrance on the part of a large number of the defendants in error, that the prayer of the petition was granted, the improvement ordered, two sections of it completed and accepted by the commissioners; and the third (and last) one nearly finished, and that over $20,000 of the county bonds had been sold to pay for the work done by the contractor before this action was commenced. Any further statement of facts necessary to a decision of the case will be stated in the opinion of the court.

      Qhas. E. Pennewell and L. 0. Laylin, for plaintiffs in error.

      Doyle, Scott & Lewis, for defendants in error.
   Bbadbuuy, J.

That the commissioners had jurisdiction of the proceedings prosecuted before them to establish the improvement;, is shown by the finding of the court, provided they had authority to improve that part of the highway which extended into the corporate limits of the city of Norwalk.

The finding of the circuit court in respect to both law and fact is full and complete, and presents the questions in contention between the parties here with unusual clearness. To some of these findings the plaintiffs below excepted, and counsel in argument refer to them; but, as no cross-petition in error has been filed in the case, they are not before us for consideration. Of the findings of the circuit court, to which defendants below excepted, it will only be necessary to consider those which relate to the third conclusion of law, and to the last clause of the finding of fact, as, in the view taken by this court, they are decisive of the case.

The third conclusion of law is, “that the order made by said commissioners of Sept. 20, 1884, was invalid for the reasons:

“ 1st. Because, in said order for said improvement, the commissioners did not state or determine the lots and lands to be assessed for the costs of said improvement.

2d. Because the report of said apportioning committee does not find or determine the proper proportion of the costs and expenses of said improvement, chargeable for special benefits arising from said improvement, conferred upon the lots and lands assessed for the expenses thereof.

if3d. Because the said commissioners had no power or authority to order the improvement of a portion of one of the streets of the city of Norwalk.”

In determining the sufficiency of the records of inferior tribunals and public boards, to express their purposes or to preserve a memorial of their transactions respecting matters within their jurisdiction, technical precision should not be required; on the contrary, they should be liberally construed. They are not usually drawn by persons possessed of professional knowledge or skill in such matters; the law does not contemplate that such tribunals or boards shall be constantly attended by persons having such knowledge or skill, but, rather, that their duties will be performed, at least, generally, without such assistance. To subject them to the test of technical precision, would, in most instances, at least, defeat the object sought to be attained by the legislature in creating inferior tribunals and public boards; and, therefore, however informal their records may be, if enough appears to show with reasonable certainty that the requirements of the law have been substantially complied with, their pi’oeeedings should, upon grounds of public policy, if for no other reason, be sustained. Harding v. Trustees, 3 Ohio, 227; Humiston et al. v. Anderson’s Adm’r, 15 Ohio, 557 ; Barto v. Abbe, 16 Ohio, 408; McClelland v. Miller, 28 Ohio St. 488, 498; Lima v. McBride, 34 Ohio St. 338. Nor should their proceedings be attacked in detail, and an entry or an order separated from the balance of the record, and if found incomplete when considered alone, the proceedings declared erroneous; instead, the whole is to be construed together, and, if from the entire record it appears that all the statutory steps have been substantially taken, the proceedings should be upheld. These principles we adopt and-apply in construing the record of the county commissioners in the case now under consideration.

The order of the commissioners, made September 20, 1884, does not, in direct terms, state Or determine the lots and lands to be assessed for the cost of the improvement, nor does it directly refer to and make the report of the viewers, which does so state and determine, a part of this order ; and, therefore, if technical precision on this point is necessary, the order was defective. But, if it may be considered in connection with what has transpired before, and the nature of the proceeding, how will it stand ? An examination of the- proceedings will show that the commissioners, on August 11, 1884, appointed viewers and directed a notice to be given to them prescribing their duties under the appointment. This was done, and, among other' duties, it required them to ascertain and report “ the lots and lands which will be benefited thereby and ought to be assessed for the expense of the same.” The viewers met, performed their duties, and on September 13, 1884, reported in writing, to the commissioners, their action in the premises, and, in addition to other things, the report, respecting the matter now in review, was as follows: “ We submit herewith a list of the lots and lands which will be benefited thereby, and ought to be assessed for said improvement.” Here follows a list of the lots and lands, with owners’ names arranged in alphabetical order, showing the range, township, section and lot, in which the lot or land to bo assessed is situated, and a short description of the number of acres in each. Accompanying this report was a plat, profile and specification of the improvement, made by the surveyor who attended the viewers, which was treated and considered as a report by him. The record of the comniissioners shows, that on September 13, 1884, this report of the surveyor, together with that of the viewers, was duly filed with them, and that, “said reportshaving been publicly read and carefully considered, * * * the matter was postponed one week, to enable the board to know the number of land owners who were signers to the petition.” The week expired September 20, 1884, and on that day the commissioners made the order for the improvement, which is claimed to be defective in not' naming or determining the lots and lands to be assessed. It is in the following words:

Whereupon, the consideration of the report of the viewers, in the matter of the Hawes two-mile assessment pike, was resumed; and the board being satisfied that more than a majority of the resident land owners of the county, whose lands are reported benefited, and ought to be assessed, had signed the petition, on motion of Mr. Simmons, it was ordered that said improvement be made in accordance with the report of the viewers and surveyor.”

It is true this order does not, in terms, name the lots or lands to be assessed to pay the cost of the improvement; but, when the nature of the proceeding before the commissioners is considered; that the scheme, of the improvement contemplated that its cost should be assessed,exclusively upon the lots and lands to be benefited thereby; that one of the main objects to be accomplished by appointing the viewers and surveyor, and the duty enioined upon them by the statute under which they acted, was to ascertain and report, for the information of the commissioners, and as a basis for their order directing the improvement to be made, the lots and lands to be benefited thereby, and which ought to be assessed to pay the cost thereof; that this duty had been performed, and their report in respect thereof was then being considered by the commissioners, and in fact, contained a statement of the lots and lands that in their opinion should be assessed, an order made by that board, directing the “ improvement to be made in ac-. cordance with the report of the viewers and surveyor,” must be regarded as adopting the language and recommendations of the report, as fully and completely as if it had been formally copied into the order. We hold, therefore, that this order, of September 20, 1885, did state and determine the lots and lands to be assessed for the cost of the improvement.

The second reason given in the special finding, for holding as matter of law, that the order of September 20, 1884, was invalid, is, Because the report of the apportioning committee does not find or determine the proper proportion of the costs and expenses of said improvement chargeable for special benefits arising from said improvement, conferred upon lots and lands assessed for the expenses thereof.”

In this connection it becomes necessary to refer to the eighth finding of fact. This finding shows that the order of the commissioners, appointing the apportioning committee, was as follows:

“ Ordered that Captain C. Woodruff, Homer Clary and Charles Whitney be appointed the apportioning committee, under section 4842, Revised Statutes, to apportion the expense of said, improvement on the property benefited, and that said committee meet on Monday, September 29,1884, andproceed with the duties of their appointment.” This referred directly to the statute under which the apportioning was to be done, and made certain the duties which the commissioners contemplated and intended the committee to perform. Notice, pursuant to this order, was duly given to the apportioning committee, directing them, among other things, as follows: You will, therefore, proceed, forthwith, upon actual view of the premises, to make out said apportionment, according to the benefit to be derived therefrom, and report the same to the county auditor.” And there was attached to this notice a copy of the list of lots and lands, which the viewers and surveyor had reported as benefited by the improvement and ought to be assessed to pay the costs thereof. While neither the order of the commissioners now under consideration, nor the notice to the apportioning committee, directly refers to this list of the lots and lands to be assessed, yet, from the nature of the proceedings, the entries, orders and reports before referred to and set forth in this opinion, and the reference made to the statute, (sec. 4842, Rev. Stats.) by the order itself, it is entirely clear that the commissioners had in view the lots and lands named in the list when they made the order now under review; and it is equally clear, from the language of the order to the apportioning committee, and the duties devolved upon them under it, that this list of lots and lands, together with the order, constituted but one document.

They were fastened together, and in that condition delivered to the apportioning committee. Why this physical joining together? Why attach this list of lots and lands, if they were not those upon which the assessment was to be made ? It was done by the county auditor, who is the clerk of the commissioners respecting these matters. He was performing a public duty. Some purpose was to be accomplished by it, certainly; and what other purpose could the attachment of this list accomplish,'except to point out to the apportioning committee, the lots and lands to be assessed to pay the expenses of the improvement? ISio other list of them was made part of the notice. The apportioning committee had no power to determine what lands should be assessed. The notice, without the list, was, upon its face, an incomplete instrument, in that it did not state the lots and lands that ought to be assessed. The list alone, had no significance; but together they constituted a complete document, that pointed out in unmistakable terms the duties which it imposed upon the committee. We, therefore, hold, that the list of lots and lands attached to the notice was a part of it.

When it is shown that the list of lots and lands that the viewers and surveyor reported as benefited by the improvement, and ought to be assessed to pay the costs thereof, was properly a part of the notice given to the apportioning committee, their duties thereunder clearly appear. They were to apportion the cost of the improvement to the lots and lands, named in the list, according to the benefits to be derived therefrom, and report the same to the county auditor.' They proceeded under the notice, made an apportionment of the costs to the lots and lands named in the list, and reported as follows, to-wit:

“We, the undersigned committee, appointed by your honorable board to apportion the estimated expense of the improvement of a two-mile assessment pike road in Norwalk Township, as petitioned for by O. M. Hawes and others, upon actual view of the premises, would respectfully report the following list of lots and lands, with the respective sums assessed on each, as follows: ”

Then follows a list of lots and lands assessed by the committee, with the amount assessed against the same. This list was the same list accompanying the auditor’s notice to the apportioning committee. This report' does not state that the committee made the apportionment according to benefits, nor does it state that they did not; it is silent in respect thereto. The instructions embodied in the notice of their appointment as well as the statute (Sec. 4842 Rev. Stats.) under which they acted, pointed out, in unmistakable terms, the manner in which the apportionment should be made. They were in the performance of a public duty, and the presumption is, in the absence of any contrary indication, that they did it in a lawful manner. Coombs et al. v. Lane, 4 Ohio St. 112; Reynolds et al. v. Schweinefus, 27 Ohio St. 311; Titus v. Lewis, 33 Ohio St. 304. We think, therefore, that the transcript of the proceedings had before the commissioners, when examined according to the principles adopted by this, court, sufficiently shows that the apportioning committee did find and determine the proper proportion of costs and expenses chargeable for special benefits conferred upon the several lots and lands assessed therefor.

The third reason assigned, in support of the third conclusion of law, presents the question of the power of the county commissioners to improve a state or county road when it is also a street of a municipal corporation ; and to the discussion of this interesting and important question counsel have devoted a considerable part of their very able briefs; and, counsel for defendants in error, have, with great force, pressed upon the attention of the court the mischief that might arise from a conflict of jurisdiction, if it should be held that the county commissioners have the power contended for. This argument is not without force, and in a doubtful case might determine the construction to be placed upon the provisions of a statute.

That a state or county road is not extinguished by becoming a street of a municipal corporation is clear. It retains its character of a state or county road, even as to such portions of it as may chance to fall within the limits of a municipal corporation, that may be subsequently organized; nor is this character changed because the municipal authorities call it a street and give to it a name as such, and are invested by law with its general control. Should the municipality cease to exist, the highway would at the same time cease to be a street, but it would not cease to be the state or county road which it was originally.

If so apparent a proposition requires support from authority, ■enough will be found in the case of Bisher v. Richards, 9 Ohio St. 485, where it was held, that the laying out of a state road ■ overa county road did not extinguish the latter," but that both might co-exist. If that is so, upon the same principle, a state ■or county road would continue to exist after its adoption by a .municipal corporation as a street.

It has also been held in this state, that under a statute giving the commissioners general power to lay out and establish county roads, they were authorized to lay out and establish a county road within or through an incorporated town or city. Wells v. McLaughlin, 17 Ohio, 99. Also, one “whose termini are wholly within the limits of an incorporated town or city.” Butman v. Fowler et al., 17 Ohio, 101. These cases establish the doctrine, that territory, within a municipal corporation, is not exempt from the operation of general laws giving authority to county commissioners respecting public highways.

The statute under which the commissioners were acting, in the case under consideration, is a general one, and reads as follows:

“Section 4829. The county commissioners of any county shall have power, as hereinafter provided, to lay out and construct any new county road, or improve any state, county, or township road, or any part thereof, or any free turnpike road, or any part thereof not completed, by straightening or altering the same, and by grading, paving, graveling, planking, or macadamizing the same, and by draining the same in any direction required to make the most convenient and sufficient ■ outlet; and for such purpose they may, upon further petition, when by them deemed expedient, vacate any state, county, or -township road, or any part thereof, or any free turnpike road, or any part thereof not completed, and may improve several roads, or parts of roads, or free turnpike roads or parts thereof not completed, when the same may be united in one continuous road improvement.”

The power conferred by this section is as full, ample and general, as that conferred by the statutes under which the commissioners were acting in the cases of Wells v. McLaughlin and Butman v. Fowler, supra, where it was held that the- power of the county commissioners did extend to and authorize them to lay out and establish public roads within incorporated towns and cities. Therefore, unless this power is limited by some other statutory provisions, the commissioners had authority, under the statute above recited, to make the improvement in question. This construction is strengthened by the proviso added in 1884, (81 Ohio Laws, 56) to sec. 4831 of the same act, which reads as follows:

Provided, that in locating such improvement within the territorial limits of any incorporated village or town, the engineer and viewers shall be confined to the platted streets of such village or town.”

And by section 4850, as amended in 1882 (77 Ohio Laws 50):

When any road to be improved under and by virtue o, this chapter begins or terminates in a city or village, the Corporate authorities thereof may, upon the recommendation of the county commissioners, if they deem the same expedient, agree to pay in the bonds of such city or village, in the manner and proportions described in section 4846, in addition to any amount that may be assessed upon the real property within such corporation by virtue of the provisions of this chapter, an amount not exceeding one-fifth of the entire cost of the road; but the entire tax to be imposed for road purposes, by virtue of this section, shall not in any year exceed five mills on the dollar of the taxable property in the corporation.”

This section and proviso clearly show the construction intended by the legislature. In addition to this they adopted the general language employed in sec. 4829, Rev. Stats., after such general terms had received a judicial construction, in the cases of Wells v. McLaughlin and Batman v. Fowler, supra, that brought within the jurisdiction of county commissioners proceedings to establish state and county roads within the limits of municipal corporations; and are presumed to have had that construction in mind when legislating subsequently upon the same general subject.

In the sections of the municipal code, which bear directly on the subject of street improvement, no words excluding this power of the county commissioners are found, nor are there any direct words of exclusion in sec. 2640, Rev. Stats. That section reads as follows:

“ The council shall have the care, supervision and control of all public highways, streets, avenues, alleys sidewalks, public grounds and bridges within the corporation, and shall cause the same to be kept open and in repair*, and free from nuisance.”

But it is contended that the general power conferred on municipal corporations by this section, and the special power to improve streets given by other sections of the municipal code, are incompatible with the existence of authority in the county commissioners to improve that portion of a state or county road which may lie within the corporate limits If this contention is true it becomes a matter for the most careful consideration to determine which authority must yield to the other; and in that view it might be important to cast up the advantages on the one hand and the evils on the other, incident to such construction, and ascertain upon which side the balance stood; upon the theory that the legislature must be taken to have intended to promote the public welfare, and therefore intended that to be the law which, would best accomplish it. But is there any such incompatibility? That there” is some danger of a conflict of authority between the county commissioners and the municipal council, where both have power to improve the same highway, can not be denied. That is a danger that always exists where two independent officers or bodies have a concurrent authority over the same subject; yet, in many instances, there are other considerations that override this objection, and the concurrent authority is given. This is a question of public policy, to be considered and determined by the legislature alone.

It is true that sec. 2640, in very general terms gives to municipal councils the “care, supervision and control of all public highways, * * * within the corporation.” The power conferred by this section is full and ample ; but it contains no words directly excluding that conferred by the statute upon county commissioners. If it has that effect, it amounts to a repeal of the latter statute by implication. Repeals of this kind are not favored.

The duty of the court is to consider all the statutes upon the subject together, and, if possible, uphold all of them, and give due force and operation to every part of each. We discover no difficulty in doing this in the case before us. The legislature, by the provisions of sec. 2640, Rev. Stats., bestowed a very general control over the highways within municipal corporations, but, at the same time, they have preserved to the county commissioners a power to improve those public highways which are a part of the general road system of the county, though they may happen to lie partly within the limits of the municipality.

As we hold the proceedings before the commissioners to be in substantial compliance with the statutes under which they were had, and that they had power to improve that portion of the state road which fell within the city limits, it follows that the assessments were all valid, and any discussion of the doctrine of estoppel becomes unnecessary; and we do not care to add anything to the thorough statement of the principles of the doctrine to be found in Tone v. Columbus, 39 Ohio St. 281.

The questions considered in this opinion are presented by the record, and were of sufficient importance to require a decision directly upon them, though the case might have been decided upon the ground that, as the parties had a remedy at law, they could not invoke the aid of equity.

The action was brought, nominally, to enjoin the collection of an illegal assessment; but whether it had been illegally assessed or not, depended upon the jurisdiction of the county commissioners over the subject matter; and, if they had such jurisdiction, then upon the regularity of the proceedings had before them. These proceedings could have been reviewed by petition in error, under sec. 6708 Rev. Stats, and relief had against any error apparent on their face. Haff v. Fuller, 45 Ohio St. 495; Burrows v. Vandevier, 3 Ohio 383; Ferris v. Bramble, 5 Ohio St. 109; Beebee v. Scheidt, 13 Ohio St. 406; Coms. v. Jenkins, 19 Ohio St. 348; Farvert v. Finfrock, 43 Ohio St. 335.

The principle decided in Haff v. Fuller, supra, applies equally as well to proceedings before county commissioners under the two-mile assessment pike laws,as to proceedings before township trustees under the ditch laws. In that case the action was -directly to enjoin the construction of the improvement (a ditch), while in the case before us it was to enjoin the collection of an assessment to pay its costs, which latter action is authorized by chapter 13 of the Code of Civil Procedure; but, in either case, it was the jurisdiction of the board and the regularity of the proceeding had before it, that were challenged; and the right of the party to do this in equity, cannot depend upon his lying by until the improvement is substantially completed, and then seeking to accomplish by its aid what he could have done by a proceeding in error. The rule is laid down in 43 Ohio St. 497, as follows : “ As a result of the rule that courts of equity do not entertain jurisdiction for the enforcement of rights or the prevention of wrongs, when the legal tribunals are capable of affording redress, it is always a sufficient objection to the granting of an injunction, that the party aggrieved has a full and adequate remedy at law. In' the application of the rule it is accordingly held, that courts of equity will not sit as courts of error, to revise and correct proceedings at law or grant injunctions against judgments, because of errors in the proceedings, when proper relief can be had in the ordinary courts of appellate procedure.” The omissions and irregularities, held by the circuit court to be errors invalidating the proceeding had before the county commissioners, were all apparent on their face, and for their correction there was provided a legal remedy by petition in error, and they were not proper predicates for equitable relief.

Judgment reversed and the petition of the plaintiff dismissed.