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lay in the law for continuing the line of the road as originally located, or for not proceeding beyond that place as a terminus, it was of a negative kind, resulting from exhaustion of chartered rights by a single location of the track, and the want of a grant of power to proceed further south than that town, or the track of the Milwaukee & La Crosse Railroad. But sec. 5 of the original charter provides that said company shall have power to connect its railroad with any other railroad in this state, and to operate the same in connection with such other railroad." This is not a grant of power to connect with such roads merely as should be reached or crossed by this in its original course, because the case is fully provided for earlier in the same section, and the scope of the words quoted is manifestly design to be much greater. To connect its railroad with any other railroad in this State." necessarily implies the construction of a track over the country lying between its road and such other, no matter what the distance, provided only it be within this State. Any limitation upon this construction would be an arbitrary restraint imposed upon words which are so plain as not to admit of interpretation, and would as well exclude power to connect with a road one mile distant as with one fifty miles distant. Belleville R. R. Co., vs. Gregory, 15 Ill., 20; Newhall vs R. R. Co., 14 id.. 273. 2. To "make assurance doubly sure," however, the company obtained the act of 1870 (ch. 516, P. & L.,) which in terms authorized it "to extend the line of said road to the south line of this State." Accordingly, in September, 1871, as the answer shows, the board of directors, with the express authorization of the stockholders, adopted a resolution for the purpose of making such extension of the road to the south border of the State, and instructed the president of the company to cause an immediate survey and location to be made of the line south from Tomah, and to proceed immediately to construct the road as far as Elroy, where it might connect with the Chicago & Northwestern road then building; and a line was actually surveyed and located from Tomah to Elroy, upon the only feasible route, via Camp Douglas, a point on the M. & St. P. Railway, and the road was actually constructed from Camp Douglas to Elroy, in the expectation of using the track of the M. & St. P. Railway from Tomah to Camp Dougles until a track could be constructed by defendant between these points the following year. Thus, by the law of the State, and the action of the company under it. Tomah, never possessing any positive right of its own, lost all title to be designated or regarded as a terminus of defendant's railway; Elroy becoming the southern terminus and Tomah an intermediate station. 3. The company now met an obstacle to the fulfilment of its plan in the refusal of the M. & St. P. Company to permit the use of its track from Tomah to Camp Douglas; and the directors, looking to the convenience of the stockholders and the interests of the general public, shortened and perfected this part of its route by reconstructing the road in a direct line from Warren's Mills to Camp Douglas. Did the law authorize this change? (1) The charter empowered the company "to survey, locate, construct, complete, alter, change
the location of, reconstruct, maintain and operate a railroad" from any point. to be determined by the directors, in the town of Tomah, or on the track of any railroad running out of that town. Camp Douglas was a point on the line of a road running out of Tomah. So, also, by the change defendant connected its road with the Wisconsin Valley road running out of Tomah. Thus, two points were reached, either of which might have been originally selected by the directors under the charter. The language above quoted plainly indicates that the company, after having once constructed and completed its road, might change its location and reconstruct it. How much of the road, as once constructed and completed, could thus be relocated and reconstructed? In other words, what limits were intended to be placed upon the power so clearly granted? Obviously, the original limits mentioned in the charter, for the construction of the road. It was granted the directors once to review their own action, and to exercise again the discretion originally extended to them respecting the line of the road. Boston & Prov. R. R. Co. v. Midland R. R. Co. 1 Gray, 340. We say once, because the grant of power to change and reconstruct seems to be exhausted by a single use, upon the same principle that a power to first construct is so exhausted. The company, then, had power to take up the track it had once laid, to abandon the first location, provided that it reconstructed its road in such a manner as to make it accomplish the ends pointed out by its act of incorporation. (2) The acts complained of have sufficient warrant in the general railroad law. ch. 119, Laws of 1872. By sec. 55 of that act every existing railroad company was subjected to its provisions, and invested with all the power and privileges conferred by it. By sec. 23, a general power is granted to directors of any railroad company, to "at any time alter or change the route, or any part of the route, of the road, or any part of their road as constructed, if it shall appear to them that the line can be improved thereby," subject to certain limitation, none of which are applicable here. To escape the effect of this provision as a perfect warrant for the action of the company here compained of, it is claimed that the act of 1859, so far as it relates to termini, is still in force. But, (a) sec. 23 of the act of 1871, is manifestly a revision of the entire subject matter of the act of 1859, and therefore repeals that act wholly, although it be not wholly inconsistent with it. Lewis v. Stout, 22 Wis., 234, 236. The rule is specially applicable here because it is manifest from the statute, and otherwise known as a fact, that this act of 1872 was adopted, after much consideration, as a general railroad law, for the purpose of compiling into one act all previous provisions, and thoroughly revising the entire subject of the incorporation and the corporate franchises and powers of railroad companies; and during the same session similar acts were passed relating to other corporations, upon the spur of the recently adopted constitutional amendment againt special legislation. See also Burlander v. M. & St. P. R'y Co., 26 Wis., 76. (b.) The act of 1859 is clearly repugnant to that of 1872. It is claimed that there may remain of it a provision against changing termini. But that act established no substan
tive rule against changing termini; the words "termini" and "station" being introduced in an exception to an exception -a limitation to a proviso ingrafted on the substantive enactment. The act, as a whole, is swept away. It is manifest that under the act of 1872, stations may be abandoned when cities, towns and counties may; any part of the track may be taken up. Does one word of the act stand-a word not used to express a rule established, but only an exception to that rule? It is argued that under the act of 1872, standing alone, a road constructed from Milwaukee to Madison might be changed to one between Racine and Portage City; and this is claimed to be an absurd consequence. It is not legally absurd, but directly within the spirit of the law; although it may be answered better that such a proceeding would be more than a change. A company formed under that law may at any time surrender its corporate franchises. So any body of men may at any time form a company under that law and build a railroad. Having been a company engaged in operating a road between two given points, the same men may lawfully surrender that franchise, and become a company operating a railroad between two other points, and may employ their iron and cars upon the new route. Such a general opening up of the railroad business to any that will engage in it, precisely as manufacturing is opened, constitutes the leading feature of the law. The power to change part of a road, constructed, is a less power, to some extent contained in the other, within the whole spirit of the law, and only limited by obligations to municipal corporations which have acquired vested rights by giving corporate aid. (c.) Whether the act of 1859 be absolutely repealed or not, both the charter of the company (acts of 1863 and 1870) and the act of 1872 authorized it to do the act complained of. (d.) We have already shown that before the change of location Tomah had ceased to be the terminus of defendant's road; and the provision of the act of 1859 relating to termini, if still in force, had no application to the case.
II. It was competent for the legislature of this State to grant to the company the power which it has exercised. The language of the acts of Congress of 1856 and 1864, as to the purpose to which the lands granted thereby should be applied, was manifestly intended merely to secure their application to the construction of a railroad; and it was provided that, unless that purpose should be realized, the United States might refuse patents, declare a forfeiture, and recall the grant. If that purpose was fulfilled, the title was to be passed to the railroad company. When so vested, it vested freed from this condition, because the condition must have been fulfilled. The United States imposed no condition with respect to the future maintenance of the track in any particular place; and it may be doubtful whether the sovereign control of the State over its own corporative creature could have been so limited. The objection now taken to the power of the State legislature, if maintainable to the extent claimed, would also prevent the legislature from repealing the charter of the company. It must also prevent the destruction of the company,
and of its railroad, by the prosecution of this suit. For the lands granted, many, perhaps, all of which have been sold to individuals, cannot be recalled, nor can the property in the land, iron and cars, be taken from the stockholders; and therefore a judgment of ouster must destroy the road. Conceding, however, for the argument's sake, that the route fixed by congress must be maintained, this is to be taken reasonably. Taking the two acts of 1856 and 1864 together, it is manifest that the route designated by congress was from Madison ria Portage City to Lake St Croix. The change now made is no diversion from the general route. It falls within that class of changes which, upon all the authorities, a corporation may make, in furtherance of, not departure from, the original general plan, without releasing a stock subscription or other contract based upon an anticipation of benefits to be derived from a certain route. 1 Redf. on R. W., 211. sec. 8; Kenosha etc. R. R. Co. v. Marsh, 17 Wis., 13. Before an act of the legislature can be declared unconstitutional, some provision of the constitution must be plainly violated. With at least equal reason it may be insisted that before an act of the legislature in regulation of the franchises of its corporate creatures shall be held invalid, the repugnant provision of an act of congress, claimed to have that effect, must be very clear.
B. As to the right of action under ch. 31 of 1873, counsel argued, inter alia, that if the previous conduct of the defendant in abandoning its old track from Warren's Mills to Tomah was lawful, the right of way acquired by the company over lands between those points had been surrendered, and the lands relieved from the servitude, and the track could not be again laid on that route without a new exercise of the right of eminent domain. The question presented by the act of 1873, stated most favorably for the plaintiff, is, whether the legislature can procure a railway company, having a line of road already built under a charter granted by the State, to construct, maintain, and operate another and entirely independent road within a limited time; to declare that a failure to do so shall work judicial forfeiture of its charter; and to require the court to pronounce that judgment. The law is clearly an outrage upon every line of the constitution designed to protect the vested rights of property, to support contract obligations, to prevent retrospective condemnation of lawful acts, and to confine within appropriate bounds the legislative power. But it is claimed to be an exercise of the reserved right to "alter or repeal " acts of incorporation. The existence of this suit demonstrates that the power to repeal was not exercised. The act does not profess to repeal, and does not repeal, anything, either absolutely or conditionally. Is it an exercise of the power to alter? 1. The history of the act, its language and all the circumstances out of which it grew, show that it was passed because it was supposed to be the preservation, not the alteration, of the chartered route. It was a legislative decree of specific performance to enforce a legal duty of restoring an alteration. It has been shown that all this was erroneous-that in fact the new line was a lawful and authorized one. The theory of the act is thus destroyed. To endeavor to sustain it an amendment
and an alteration, is to overturn the idea of the legislature; to attribute to their act a character which they did not give it, and to seek to support it upon a power which they never designed to exercise. 2. The power to alter differs from that to repeal in that it is limited within some bounds. Just what these are may be very difficult to determine in many cases. But "when it comes to the question of embarking in a new enterprise, the legislature cannot impose this as a duty on any corporation." PAINE, J., in Kenosha etc. R. R. Co. v. Marsh, 17 Wis., 13; a case which is approved as expressing the true limits of the power, in Attorney Gen'l v. Railroad Companies, 35 Wis., 425. In this case the old road, i. e., the one lawfully existing when the act of 1873 was passed, is not to be changed, but is to remain and be operated. The one required to be newly constructed from Warren's Mills to Tomah is to be in addition to the other. The question which Judge PAINE was considering was that of the legislative power to substitute a new enterprise for that first chartered. If the legislature has not this power, still less can it compel a railroad company to build an additional railway after it has once constructed one as chartered, and prescribe judicial forfeiture as a penalty for the offense of neglect. This is not to "alter." 3. Again, both the power to repeal and the power to alter relate to the franchises and privileges which the State grants to the corporation. They may be taken away altogether. But to charge it upon a company to build a road additional to that which it has lawfully constructed, is not to alter the franchises and privileges which it already enjoys. To impose new franchises and compel new expenditures as a condition of not forfeiting existing rights, is unauthorized. Miller v. The State, 15 Wall., 478.
JOHN C. SPOONER, for the defendant, spoke as follows: *
The company acted within the authority given by its charter. 1. Section 5 of the original charter fixed no terminus. It left the directors to establish the northern terminus at such point as they might think proper, on Lake St. Croix, between townships thirtysix miles apart. As to the southern terminus it also left them a liberal discretion. The legislature obviously had but one care as to that terminus, viz., that it should be so established as to make the road, when constructed, practically and substantially a part of the continuous line of road from Madison or Columbus ria Portage City, to the lakes St. Croix and Superior, contemplated by the act of Congress of June 3, 1856. That the legislature recognized no ground of public policy calling for the location of the terminus in the township of Tomah, is apparent from the previous legislation on the subject. In the act of Congress, the only point named on
*By an oversight for which MR. SPOONER is not responsible, his brief in this case did not come to my hands in time to be noticed in the report of this case in 36 Wis. Reports. I am gratified, therefore, by the opportunity which the railroad commissioners have given me to do MR. SPOONER such measure of justice as remains possible, by preparing for this volume the outline of his argument here given.
O. M. C.