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the Lake or River St. Croix, and from thence to the west end of Lake Superior and Bayfield, which grant was accepted by said State; and

WHEREAS, The said State prior to 1864, secured the construction of a portion of said road and made provisions for the construction of the remainder; and

WHEREAS, Congress, by act approved May 5, 1864, made to said State an additional grant of four sections of land per mile, to aid in the construction of the portion of said road from Tomah to Lake Superior, which additional grant was also duly accepted; and WHEREAS. The time for the construction of the portion of the road between Tomah and Lake St. Croix, was in 1868 extended by resolution of Congress to May 5, 1872, which portion of said road was completed within said extended time, making at least twothirds of the entire road in aid of which said grant was made; and WHEREAS, The state made strenous efforts to secure the completion of the portion of said road between Lake St. Croix and Lake Superior before the expiration of the time limited by Congress, to-wit: May 5, 1869, but without success; and WHEREAS, After the decision of Associate Justice Miller, and Circuit Judge Dillon, that notwithstanding the failure to complete said road within the time limited, the legal title to said lands remained in the State of Wisconsin, and could not be divested save by act of Congress, or judicial proceedings in behalf of the United States, the State of Wisconsin, in the full faith that the Federal Government would not seek the divesture of the title to the remaining portion of the grant after the State had so far in good faith executed the trust, conferred the grant upon railway companies under heavy bonds to complete the road if the time was extended by Congress, under which legislation of the State over forty miles of said road have been constructed; and WHEREAS, The Supreme Court of the United States has recently affirmed the decision of Judges Miller and Dillon, holding the legal title to said lands to be in the State of Wisconsin, subject to divesture only by legislative action or judicial proceedings; and WHEREAS, It would be repugnant to every principle of justice for the Federal Government to take away either by act of Congress or otherwise, the legal title to these lands, thereby denying to the State the opportunity to complete the execution of her trust, and to secure the construction of the remainder of this road, needed for manifold reasons; and

WHEREAS, Justice to the thousands of settlers who have paid the United States donble the minimum price for the even numbered sections within said grant, because of the anticipated construction of said railroad, imperatively demands the completion thereof; and

WHEREAS, It is deemed by the Legislature of Wisconsin absolutely essential to the commercial interests of this and several other States, that this road should be speedily completed, affording thereby a great through competing line to the lake, promoting the cause of cheap transportation; and

WHEREAS, It is obviously impossible for the railway companies selected by the State to complete this road, to negotiate their securities based upon a land grant which might be revoked by legislative action or perfected by judicial proceedings in behalf of the United States; and

WHEREAS, If a reasonable extension is granted, the State of Wisconsin pledges her faith to secure the completion of said road, which, when completed, is a post-road of the United States for the transportation of troops and property free of charge; Now, therefore, be it

Resolved by the Assembly, the Senate concurring, That the House of Represenatives is most earnestly requested to pass, at the present session, the Senate bill now pending in said House, extending the time for the completion of said road from Lake St. Croix to Superior and Bayfield.

Resolved, That the Senators and Representatives of this state be, and they are hereby requested to urge, and secure, if possible, the passage of said bill before the end of the present session.

Resolved, That the Governor is hereby requested to transmit immediately a copy hereof to the Speaker of the House of Representatives, with the request that it be laid before said House. Also, a copy to each of our Senators and Representatives in Congress. Approved February 19, 1875.


(Doc. 15.)





[Reprinted from advance sheets of Wis. Reports, Vol. XXVI, by permission of the Reporter.]

RAILROADS: CHARTER. (1-3) Charter of defendant company construed, as to location of southern terminus. (4) Power given by its charter to change location of road does not include power to change termini. (5) Effect of act authorizing extension of road. (6) Power to change termini under general railroad law, considered. (7, 8) Charter a contract with State; duty of company to maintain and operate its road. Ch. 31 of 1873. (9) Forfeiture of charter by breach of duty.

1. Under chapter 243, Laws of 1863, the defendent company was chartered as the "Tomah & Lake St. Croix Railroad Company," to build a road between the two terminal points named in said title, being a part of the land-grant road originally located by the La Crosse & Milwaukee R. R. Co.; and so much of the land grant as was applicable to the construction of such road from Tomah to Lake St Croix, was resumed by the legislature from the La Crosse & Milwaukee Company, and bestowed upon defendant; and the road which defendant was to build is several times designated in sec. 14 of said charter, as a road from Tomah to Lake St. Croix. By the terms of sec. 5, defendant was authorized to locate, construct and operate a railroad" from such point as the directors should determine in the town of Tomah, in the county of Monroe, or on the track of the Milwaukee & La Crosse Railroad, or of any other railway running out of Tomah," to a point on Lake St. Croix. Held,

(1) That if the language of sec. 5 as to the southern terminus of the road be construed literally, there is a positive contradiction between it and sec. 14.

(2) That in view of the whole tenor of the act, the first "or" in sec. 5 must be construed as having a copulative and not a disjunctive force; and as requiring the southern terminus of defendant's road to be in town of Tomah, and on the track of some other railroad running out of that town.

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2. Ch. 232, Laws of 1865, makes a further grant of land to defend-
ant "for the purpose of aiding the construction of a road from
the town of Tomah * * to the St. Croix river or lake," and
confirms the former grant made to the company " to aid in the
building of said railroad." Held, that this is a legislative con-
struction of the charter, or operated as an amendment of the
description in sec. 5, if such amendment was necessary.
3. At some time after its organization (apparently in 1866) defend-
ant located its southern terminus on the line of the La Crosse
& Milwaukee Railroad, in the town of Tomah. Held, that,
this location being a valid one, the point so selected became and
remained the fixed terminal point of the road, as much as if it
had been specifically designated as such in the charter.
4. The original charter authorized the company to locate, and
change the location of, its road, "on such route as it should
think proper" between the terminal points named; but this
gave it no power to change the termini themselves.

5. Defendant constructed its road from the southern terminus above
described, northward through Warren's Mills, etc., to St. Croix,
and received from the State the land grant, as provided, for
every twenty miles so built, including some ten miles from the
southern terminus to Warren's Mills. Ch. 516, Laws of 1870,
authorized it "to extend the line of said road to the south line
of this State." The board of directors then passed a resolu-
tion to extend the line of its road along the line of the La-
Crosse & Milwaukee road to Camp Douglas, and thence south-
wardly to Elroy in this State, the actual terminus of the road
of another company leading from Chicago. Thereupon the de-
fendant built the road from Camp Douglas to Elroy, intending
to make a temporary arrangement for the use of the La Crosse
& Milwaukee road from Tomah to Camp Douglas, and ulti-
mately to build its own road between these points; but, said
arrangement soon failing, it altered and straightened the line
of its road so as to run direct from Warren's Mills to Camp
Douglas, and discontinued and took up its road from the for-
mer place to Tomah. Held,

(1) That the power to extend its road southward to the state line could be exercised only by building a road continuously from the fixed terminal point at Tomah.

(2) That a mere resolution to extend the road from Tomah southward was not an exercise of the power.

(3) That as there was an actual extension of the road southward from Tomah, so as to acquire a new southern terminus for such road at Elroy, defendant could not straighten its road between Warren's Mills and Elroy, under any power to change the "location" or the "route," given by sec. 5 of the original charter, nor under the power conferred by sec. 23 of the general railroad act of 1872.

(4) That even if the road were extended southwardly as contemplated by the act of 1870, such extension would still be accessory to the principal road, whose southern terminus is fixed by the charter at Tomah.

6. The power to change the "route" of its road, conferred by the act of 1872 on each railroad company organized under it, is a power to change it between the terminal points specified in the patent, and not to change the termini themselves; and it is matter of doubt whether such change can involve a change of the counties specified in the articles of association.]

7. Defendent's charter, being granted in perpetuity, and being a contract upon a consideration proceeding from the State to the corporation, is binding in perpetuity, unless sooner determined by law; and until the law governing it is changed, defendant cannot evade the duty of maintaining and operating its road. without breach of contract.

8. The road (from Warren's Mills to Tomah) which defendant is required by ch. 31, laws of 1873, to relay and equip is part of its chartered road, which it had built and was bound to maintain. 9. Defendant's act in discontinuing and taking up its road from Tomah to Warren's Mills, is such an offense against the provisions of its charter, and such a violation of public law, as works a forfeiture under R. S., ch. 160, sec. 4 subds. 1 and 2. 10. A demurrer to defendant's answer was sustained on the grounds above stated, and leave given defendant to answer over to the information by the first day of next term.

Action in the nature of quo warranto, commenced in this court in August, 1873 by the Attorney General, on leave granted by the court, to have a forfeiture of defendants charter adjudged, and the corporation dissolved. A decision of the court upon a demurrer to the complaint will be found reported in 34 Wis., 197-217; and reference is made to that report for a somewhat full statement of the complaint. After its demurrer was overruled, defendant filed an answer, which, in addition to a general denial, alleged in substance the following facts: By ch. 516, P. & L. Laws of 1870, the legislature of this state amended defendant's charter so as to authorize the company to extend its railroad to the south line of this state. The amendment was accepted by the company, and on the first of September, 1871, the board of directors, being expressly authorized thereunto by the stockholders, duly adopted a resolution extending the line of defendant's railway from Tomah to the south line of this state, and also adopted a resolution instructing D. A. Baldwin, the president of the company, "to cause immediately the line of said extended road to be surveyed and finally located," from Tomah, upon the most direct and feasible route to Elroy, in the county of Juneau, in this state, and to proceed with the immediate construction of said road as far as Elroy, "and to cause the said extended line to be surveyed and finally located" from Elroy to the south line of the state at the earliest practicable period. Pursuant to the instructions of the board, the president of the company caused seven or eight lines to be run by competent locating engineers, with a view to extending said line of road from Tomah to Elroy by the most direct and feasible route; and said engineers, by reason of the character of the country between the two points, were unable to find a proper and practicable route be

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