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tween them, except by running for twelve or thirteen miles parallel with the Milwaukee & St. Paul Railway, (formerly the La Crosse & Milwaukee Railroad), a road running out of Tomah; and it was ascertained that a railroad could not be constructed in a direct, or even tolerably direct, route southerly from Tomah to Elroy without an expense of near a million of dollars in tunneling alone, and without such grades as to render the road, if constructed, "difficult of operation without constant, burdensome, permanent and extraordinary expense and delays." Thereupon "the said extended line of road was surveyed and finally located" from Tomah along and parallel with the Milwaukee & St. Paul Railway to Camp Douglas, a station on said last named road, and from thence in a southerly direction to Elroy; "which location and line was the only possible and practicable one from Tomah to Elroy;" and was duly adopted by the defendant company. Immediately thereafter, defendant condemned "the portions of the right of way needed for said extended railway" between Camp Douglas and Elroy, and proceeded immediately with the construction of said road thereon, and made the embankment and prepared it for the iron track, at an expense of about $130,000. This location was mode in perfect good faith, with the intention of constructing the road thereon; and negotiations were immediately entered upon for the temporary use, under contract, of the track of the Milwaukee & St. Paul Railway between Tomah and Camp Douglas; and it was understood by the officers of the defendant company that said negotlations had resulted in the consent of the officers of the Milwaukee & St. Paul Company to the use of their said track by defendant until the succeeding spring; and for this reason defendant duly resolved to postpone the construction of that portion of its said road lying between Tomah and Camp Douglas until said succeeding spring, to wit, the spring of 1873, and to construct immediately only that portion lying between Camp Douglas and Elroy. Afterwards, in July, 1872, defendant ascertained that it would be impossible to make the arrangements above stated with the Milwaukee & St. Paul Company, for the use of its track, except upon terms which would defeat the successful operation of defendant's road during the time it was using said track; and it therefore became necessary for defendant to construct immediately" the whole of its said extended line of road." The line of said road "so surveyed and finally located and partially constructed and operated" from Warren's Mills to Elroy, by way of Tomah and Camp Douglas, was circuitous, extremely crooked and indirect, and some miles further than a direct line from Warren's Mills to Elroy by way of Camp Douglas. Accordingly, at a meeting of the board of directors duly held on the 5th of August, 1872, the following preamble and resolutions were adopted, more than two-thirds of the whole board voting therefor: "Whereas, the West Wisconsin Railway Company has extended, as authorized by ch. 516 of the private and local laws of the State of Wisconsin for the year 1870, its railway from the village of Tomah, in Monroe county, in said State, to the village of Elroy, in the county of Juneau, by way of Camp
Douglas on the Milwaukee & St. Paul Railway; and whereas, the portion of this route from Warren's to Camp Douglas is extremely and unnecessarily crooked; and whereas, it appears to the directors of the company that said portion of the line or route of said railway will be materially straightened and improved by altering the same as surveyed and partially constructed and in operation, so as to run direct from Warren's to Camp Douglas aforesaid: Therefore, resolved, that for the purpose of straightening and improving the line of the West Wisconsin Railway, that portion thereof located and partially constructed and operated between Warren's station and Camp Douglas on the Milwaukee & St. Paul Railway be, and the same is hereby, changed and altered, so as to run direct from said Warren's to said Camp Douglas, as shown by the map hereto annexed." A copy of said preamble and resolutions, with the map therein referred to, was duly certified and filed in the office of the clerk of the circuit court of the proper county on the 8th of November, 1872. A copy of the same map is also made a part of the answer; and it is averred that the line of said road was greatly improved and straightened, and the distance between Warren's Mills and Camp Douglas and Elroy materially lessened by the alterations so made. Under the resolution above recited the line of said road as changed was duly located, and the location duly adopted, so as to run in an air line from Warren's Mills to Camp Douglas, and the road so altered was constructed in good faith at a necessary cost of about $380,000. The cost of the road from Tomah to Camp Douglas, as located before said change, would have been $125,000. After the construction of said altered line of road, defendant took and removed the ties and the iron rails from that portion of its road lying between Warren's Mills and the village of Tomah, and laid the same upon the altered line of said road from Warren's Mills to Camp Douglas, and ran its rolling stock thereon, and has since operated the same as a part of the main line of its railway, and has not used the embankment lying between Warren's Mills and Tomah. Defendant built no new road and removed no iron and ties from any of its road during the year 1872, except as herein before stated. Defendant's railway never extended into the village of Tomah; and that village never extended any aid to the road. Long prior to the aforesaid alteration in its line, defendant had constructed its whole road to the city of Hudson, and had received patents from this State and the United States for all lands enuring to it under the acts of Congress of June 3, 1856, and May 5, 1864, and the acts of the State legislature above mentioned. Said change in the line of its road made a more direct line between Madison and Portage and the termination of defendant's road to Hudson. And defendant denies that it has in any manner violated the provisions of its charter, or of any law of the State applicable to and binding upon said company.
The answer contained various other allegations, tending to show that the relaying of its track between Warren's Mills and Tomah, and the operation of a road between those places, would be expensive to and oppressive upon the defendant, and would not be war
ranted by the business which could be done thereon; and that the village of Tomah was otherwise supplied with ample railroad facilities. It further set forth the facts relative to the execution of a trust deed upon the defendant's property and franchises, in pursuance of authority granted by the legislature, and insisted that the trustees named in the deed were necessary parties to this action. The plaintiff demurred to the answer as not stating a defense. H. L. Palmer, of counsel with the attorney general: *
I. The complaint states a case under R. S., ch., 160, sec. 4. 1. Defendant changed the terminus of the road from Tomah to Camp Douglas, and abandoned that part of its road, as originally located and constructed, extending from Tomah to Warren's Mills, without authority from the legislature. (a) There is nothing in its charter to authorize such change or abandonment. The southern terminus of the road having been duly established, as authorized by sec. 5 of the charter, in the town of Tomah, there was no provision in the charter for changing such terminus. The only authority given the company to locate, construct, alter, or operate a railroad, is expressly limited to a road extending "from such point as the directors shall determine in the town of Tomah," etc., "to such point on Lake St. Croix, between townships 25 and 31, as the directors shall determine." The whole power conferred was limited to some line between these two points. (b) Ch. 58, Laws of 1859, in force when defendent's charter was granted, prohibits railroad companies from taking up or removing any part of their tracks, except under certain circumstances, and contains a proviso that the act "shall not be construed so as to prevent such company* * from straightening or changing their track, such alteration not to change the general line of the established track, or discommode the original termini or stations." It may be claimed that this act was repealed by ch. 119 of 1872. Sec. 56 of the latter expressly repeals sixteen entire chapters and one section of another chapter, of the general laws; but ch. 58 of 1859 is not among these. The prohibition contained in it against changing the original termini of railroads is not repealed by the act of 1872, unless by implication; and it will not be held by this court to be impliedly repealed, "if both acts may consist together." Att'y Gen'l v. Brown, 1 Wis., 513, and cases there cited, But the two statutes, so far as they affect the right to change the established termini of railroads, may well stand together. The words "route of their road" in the law of 1872, have reference only to the course or direction of an existing road, between established termini, and the words "any part of their road" refer to the track and roadbed along the route or course authorized to be changed. Any other construction of the language would lead to absurd consequences. A railroad company would have the right to change both termini of its road, and construct and operate an entirely different road, between entirely different points from those authorized
*Mr. Palmer's brief was prepared and reported as a part of the argument on defendant's demurrer to the complaint (34 Wis., 204); but that demurrer having been treated merely as one to the jurisdiction, so much of the argument then made as is pertinent to the present demurrer, is here reported more fully.-REP.
by its charter. (c.) But if the several acts of the legislature are to be so construed as, by their terms, to confer upon the defendant power to change the terminus of its road from Tomah to Camp Douglas, then it is insisted that it was incompetent for the Legislature of Wisconsin, without the consent of Congress, to grant any such power. Counsel here recited various provisions in the acts of Congress granting the lands to the State, and in the acts of the State legislature in conferring the grant upon the defendant company, and argued that the lands were granted and accepted in trust for the construction of a road from Tomah to Lake St. Croix, and that it was not in the power of the legislature to dispose of the lands except in strict conformity with the trust. 2. If the acts of defendant in changing its terminus and abandoning a part of its road as originally constructed, were done without legislative authority, they constitute such an offense against the provisions of its charter, and of the several acts of the legislature affecting the company, as will support this action under sec. 4, ch. 160, R. S.
II. A complete case for the relief here sought is made by ch. 31, laws of 1873, if that is a valid enactment. And sec. 1, art. I, of the constitution of this State, which relates to corporations "without banking powers or privileges," expressly authorizes such legislation, by providing that "all general laws or special acts enacted under the provisions of this section, may be altered or repealed by the legislature at any time after their passage." Where an absolute power to alter, annul, or repeal acts of incorporation has been reserved to the legislature, the power to repeal is unqualified. 1 Am. Law Rev, 151; Miller . The State, 15 Wall., 478, 488; Penn. College Cases, 13 id.,190, 213; Olcott v. Supervisors, 16 id., 678, 691; Sherman v. Smith, 1 Black 587; Agricultural Branch R. R. Co. v. Winchester, 13 Allen, 29; Comm. v. Eastern R. R. Co., 103 Mass., 254; Nazro r. Merchants Mut. Ins. Co., 14 Wis,. 295; Chapin v. Crusen, 31 id., 209, 215; Att'y Gen'l v. R. R. Cos., 35 id., 425.
L. S. Dixon, of counsel with the Attorney-General, contended: 1. That sec. 5. of defendant's charter did not authorize a change of terminal points; that it fixed both the termini of the road within certain limits, subject to the discretionary power vested in the board of directors to determine the particular points, within those limits, from which the road should start, and at which it should end; and such power having been exercised, the terminal points fixed and the road built between them, the authority of the directors in this behalf was exhausted; that the termini were thus definitely and finally fixed by the legislature through the action and determination of the directors specially authorized for that purpose; that this is confirmed by the language of the act of Congress of May 5, 1864, and by that of sec. 1, ch. 232 of 1865; and that the power to "alter, change the location of, reconstruct, etc., given by the charter, is only a power to make such changes in a road between two fixed termini. 2. That the power given the directors of railroads by the general railroad law (sec. 23, ch. 119, laws of 1872.) upon a vote of two-thirds of their whole number, "to alter or change the route or any part of the route of
their road, if it shall appear to them that the line can be improved thereby," does not include a power to alter the terminal points of the road and destroy its identity. It is an improvement of "the line" as constructed, and not its destruction and a creation of a different line. The line of a company's road, as constructed, is an ascertained, definable thing, having a certain place of beginning and ending. Cut loose from terminal points in the interpretation of this statute, and we shall have no "lines" of railroads in this State, but only rows "of magic shadow shapes that come and go;" dissolving views of roads that run in any and every direction, or none at all, at the caprice of boards of directors. 3. That the provision of sec. 3, ch. 516, P. & L. laws of 1870, which authorizes the company to extend the line of said road to the south line of this State," refers to "the line" of road then built and in operation from Lake St. Croix to Tomah. "To "extend" the line of that road as authorized is obviously not to build a new line from Lake St. Croix, or any place north of Tomah, to the State line, but to prolong or continue the line referred to as an existing integral line. Webster's Dic., "Extend." And when the legislature authorized extending the line of said road, certainly an actual and not a mere paper extension was intended. Looking at the facts as they existed respecting defendant's road at the time the track in question was removed, it must be seen and held that Tomah was then the true and only southern terminus of the road. And if so, then the removal of the road from Tomah was an unlawful act, for which the franchises of the company are liable to forfeiture under the general statute (R. S., ch. 160, sec. 4; Tay. Stats., 1808, § 8), as well as under ch. 31, laws of 1873. The real effect of the latter statute was, conditionally to relieve the company from the forfeiture already incurred. Sec. 5 of the charter, and sec 23, ch. 119. Laws of 1872, by authorizing certain changes in the line of road to be made in certain specific ways, impliedly prohibited every other change; and this was equivalent to an express prohibition. And it is confidently submitted that neither at the common law nor under the statutes can a corporation of this kind, in whose favor the power of eminent domain has been exercised, abandon any considerable portion of its road, or of its franchise, without working a forfeiture of its corporate rights, at the election of the State, or of the sovereign legislative power that created it.
Vilas & Bryant, for respondent, argued substantially as follows: A. As to the right of State to maintain this action under sec. 4, ch. 160, R. S.
I. The legislation of the State, prior to 1873, in terms authorized the acts complained of. 1. The charter never fixed Tomah as a terminus, or even as a station on this railway. It provided that the road should be located "from such point as the directors shall 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 railroad running out of Tomah." And after the location was actually made in the town of Tomah, no positive provision of the charter required that location to be perpetually maintained. If any provision