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the line between Madison or Columbus and the St. Croix river or lake, was Portage City; and ch. 122, laws of 1856, conferring the land grant on the La Crosse & Milwaukee railroad company, was silent as to the township of Tomah. Indeed, section 1 of the act provided for the construction of the line from Madison and Columbus on the most direct and feasible route, via Portage City to the St. Croix; and for the fact that the road ever touched its limits, Tomah is indebted to a disregard, by the La Crosse & Milwaukee company, of the policy of the State as to the proper line of road; and to the execution of that company's design not to construct in good faith the land-grant road, but to make the land grant construct as much as possible of a road connecting Milwaukee with the Mississippi river at La Crosse. The act of 1863 incorporating the defendant and annulling the grant to the La Crosse & Milwaukee company, indicates no change of State policy in that regard. The terminal point must, under that act, be in the town of Tomah, where it would necessarily connect with the La Crosse & Milwaukee road, or on the line of that road outside of Tomah, etc. Clearly it need not have been in the town of Tomah, nor even in the county of Monroe. 2. No act of the legislature was ever passed modifying the provisions of the charter as to the southern terminus of the road. Chapter 232, laws of 1868, was obviously intended for no such purpose, but was passed solely for the purpose of confirming the grant contained in the charter, and conferring the additional grant made by the act of May 5, 1864. It is bare recital, and indicates no intention to take from the company any of the powers and privileges given it by the charter. The grants are made and confirmed to it on the terms and conditions of both the acts of Congress; and the later of these (that of 1864,) is expressed; in the act making it, to be upon the same terms and conditions as that of 1856. Suppose, that prior to 1864, the La C. & M. Co. had constructed the road by way of Camp Douglas and Warren's Mills to Black River Falls, and the grants made by chapter 232, of 1865, had been made to that company; could it be reasonably said that the reference in the act to the township of Tomah indicated an intention to require the company to change the line of its constructed road so as to pass through Tomah. Or if defendent had located its line from Camp Douglas north as authorized by its charter, and had constructed and completed its road thereon as far as Eau Claire, could this court hold that the recital in the act of 1865 was intended to require as a condition of the additional grant, that the company should change its constructed road so as to run from somewhere in the town of Tomah? If the legislature had considered the act of May 5, 1864, as necessitating a modification of the charter, and a curtailment of the powers given by it, and had intended so to modify the franchise, it is fair to presume that it would have said so in the language reasonably adequate to express such a design. 3. Defendant might lawfully have made Camp Douglas its southern terminus in the first instance; it might lawfully remove that terminus from Tomah to Camp Douglas. The language of the
charter necessarily excludes the conclusion that by its election to locate and construct the road from Tomah in the first instance, defendant exhusted its power as to the selection of a terminal point. The company was authorized "to survey, locate, construct, complete, alter, change the location of, re-construct, maintain, and oprate" its road. The words are carefully chosen, and properly collated. They indicate a clear intention on the part of the legislature and give it plain expression. The words "re-construct,' 'has no reference to repairs or replacements; the word "maintain" would be sufficient for the purpose, if any express authority were needed. A road cannot be "re-constructed" until it has first been constructed; and the collocation of the words "alter, change the location of, reconstruct," after the words "survey, locate, construct, complete," shows readily that the company is empowered, after its road is surveyed, located constructed. and completed, to change its location and re-construct it upon its altered route. Harrington v. Smith, 28 Wis., 67; James v. Dubois, 1 Har. (N. J.) 285, 293; Hutchen r. Niblo, 4 Blackf., 148; 22 Pick., 571; 7 Mass. 523; Green v. Cheek, 5 Barber (Ind.) 105. Observe the significant contrast between the grant of power above recited and that made to the La. C. & M. Co. by ch. 122, of 1856, by which the latter company was merely authorized to "survey, locate, construct, complete, and perpetually have use, maintain, and operate" its roads; the words "alter, change the location of, reconstruct," being inserted in the subsequent act chartering the defendant, evidently with a deliberate design to confer a new and distinct power. The defendant, then, being thus authorized, after completing its road as first located, to change the location thereof and reconstruct the road, are there any limits as to the portion of the road which may be re-located and re-constructed? None is to be found in the charter. The road from Warren's Mill was as much a part of the road that might be altered, the location of which might be changed, as any other. We need not argue that this power could be exercised so as to establish the terminal points in disregard of the limits indicated in the charter. What we contend, is, that the power might be lawfully exercised at least once, within those limits.
II. Defendant was authorized to make the change complained of, by sec. 23, ch. 119, laws of 1872, known as the general railroad law. It is said that this act does not authorize any change in the road which would involve an abandonment of an established terminus. Without accepting this proposition, we are not required to controvert it in order to justify under sec. 23 the change made by defendant. Ch. 516 P. & L. laws of 1875, authorized defendant to extend its road to the south line of this State. The answer herein, confessed by the demurrer to be true, shows that this amendment of the charter was accepted by defendant in 1871, (before the passage of said sec. 23) and that at the same time the extension from Tomah was resolved upon and directed, and the immediate location and construction of the road ordered; that the line was surveyed and finally located, pursuant to that action, from Tomah by way of Camp Douglas (the only practicable route) to Elory; that this final
location was duly adopted by the company in good faith, with the honest purpose of constructing the road thereon, and the right of way condemned, and the road partially constructed on that part of the route from Tomah to Elroy, which lay between Camp Douglas and the latter point. The answer also shows the change of circumstances under which the company afterwards determined to exercise the power granted it by sec. 23 of the general law, by altering its road, in the interest of the stockholders and the general public, so as to make it run directly from Warren's Mills to Camp Douglas. We insist that in so doing it acted strictly within both the letter and the spirit of that section. It did nothing more than alter or change "a part of the route of its road," and a "part of the road as constructed," for the purpose of improving the line thereby, and that without the abandonment of any established terminus. Manifestly the line or route of its road, at the time of this change, was from Hudson to Elroy by way of Tomah and Camp Douglas. It certainly is not necessary, in order to constitute the line or route of a road, that it should be wholly constructed. A railroad may have established termini, and a route or line between these, without a mile of the road being constructed or completed. A final location adopted fixes the route or line, and establishes the termini so firmly that it is not within the power of the company to change either without the authority of the law. And after such a location, if a part only of the road is constructed, the end of such constructed part is not in legal contemplation the terminus of the road. When, therefore, the line of defendant's road was finally located from Tomah to Elroy via Camp Douglas. Tomah was not in legal contemplation the southern terminus of the road any more than Black River Falls was its northern terminus when the constructed road reached that point. The terminus at the south line of the state had not yet been established. Elroy was the end of the extended line, twelve miles of which, reaching that point, were constructed and ready for the iron. Elroy must surely be regarded either as the terminus or as a station. If the former, the alteration made was made to improve the line between a station and the terminus. If the latter the alteration was to improve the line between two stations. The power given by Sec. 23. is not merely to change "any part of the road as constructed," but also to change "the route or any part of the route," if it shall appear that "the line" can be improved thereby. What line? The legislature manifestly recognize a distinction between the "route" and the "road as constructed," and use the word line as applying to either or both, and apply the power to alter or change to either or both. If defendant had completed its road from Tomah to Camp Douglas, there would be no question that Tomah would no longer have been in any sense the terminus of the road, or that the company might, under Sec. 23, have lawfully done what it did to improve its line. Can it be possible that it was necessary for the company to construct the road from Tomah to Camp Douglass in order to render it legal to straighten "and improve its line, under that section? 4- R R C-APP.
This involves the absurdity that a company must construct its road upon an unsatisfactory and bad line, in order to obtain authority to shorten and improve it. For if the authority given by the section does not extend to the located line of partly constructed road, because the unconstructed portion is only a "paper line," it could not apply to a line finally located and entirely uncompleted, because that would be all on paper. Such a construction of the act not only does violence to the language, but must in many cases utterly defeat the intention of the legislature, viz.: the straightening, shortening and improving of railway lines. When this act was passed, it was well known that by reason of the adoption of the constitutional amendment prohibiting special legislation, the only authority that could be given to any company organized after its passage, to straighten and improve its line, must of necessity be derived from a general law like this. It was also then, and has since been generally understood, that no corporate power or privilege could be given by any special act to any railway corporation in this State existing when the act was passed, to change or straighten its line, no matter how much the public interest or the interest of the stockholders might require it. So the authority given was liberal, and it was extended to all the roads in the State, the legislature probably relying upon the facts, that the straightening and improvement of lines was in the public interest, and that a railway company would hardly undertake such improvement, especially at the expense of changing a constructed road, unless it was for its interest to do so, and that it could not be for its interest unless also in the interest of the general shipping and traveling public.
It has been argued that so much of ch. 58, Laws of 1859, as is necessary to render the change in defendants track illegal, is still in force But the charter of this company was subsequent to the act of 1859, and so far as inconsistent with it, repealed it. In any event, the act of 1859 was entirely abrogated by chapter 119, of 1872. (i) The latter statute was a revision of the subject matter of the former, and a substitute for it. [Counsel here compared the acts to show the truth of this statement.] Being a revision, it works a. repeal without express words to that effect: Lewis rs. Stout, 22 Wis., 234; Burlander vs. M. & St. P. R. R. Co., 26 id., 76; Moore vs. S. & St. C. R. R. Co., 34 id., 173. (2) The two acts are entirely repugnant to each other. [Counsel here compared the acts at length.]
The action of Congress in granting lands to aid in constructing defendant's road, and the action of the State in accepting such grants, have nothing to do with this case. (1) If the State legislature had, by a special enactment, expressly authorized defendant to do just what it did, and defendant had made the alteration, pursuing strictly the authority so given, and this action had then been brought, would it not have been sufficient for the company to exhibit the legislative warrant for the change? Could the State have said, "Yes, we gave you authority to do it, and you are responsible to us, and not to the United States, for the manner in which you use your franchise; but in giving you the authority, we violated an agreement with the United States (of which, however, the United
States do not complain,) and though you pursued literally the authority which we gave you, yet, as a penalty for so doing, we hereby annul your corporate existence?" A singular attitude that would be for a sovereign State to assume toward her own creatures. (2.) The land grant acts of congress of 1856 and 1864 are in pari materia, and must be read together. It will then appear that the change here complained of, far from violating any trust, was but a more complete and efficient execution of the trusts created by the acceptance of the grants. The grant of 1856 was expressly made "for the purpose of aiding in the construction of a railroad from Madison or Columbus by way of Portage City to the St. Croix river or lake, between townships twenty-five and thirty-one, and from thence to the west end of Lake Superior and to Bayfield." The act of 1864 declares that there is thereby granted to this State, "for the purpose of aiding in the construction of a railroad from the town of Tomah in the county of Monroe, in said State, to the St. Croix river or lake between townships twenty-five and thirty-one, every alternate section of public lands for ten sections in width on each side of said road, deducting any and all lands that may have been granted to the State of Wisconsin for the same purpose," by the act of 1856, "upon the same terms and conditions as are contained" in said last mentioned act. This was merely an additional grant of four sections to the mile, and it was not in aid of any new enterprise. It was additional aid for carrying out the original purpose, the construction of a continuous line of road from Madison or Columbus to the west and of Lake Superior and to Bayfield, a portion of which had been completed from Columbus. The history of the grant of 1856 furnishes a perfect explanation of the reason why the town of Tomah was mentioned in the act of 1864. The La C. & M. Co., had built to Tomah, and had then made a detour to the Mississippi River at La Crosse. The state had in 1863 conferred upon the defendant that portion of the grant thus abandoned by the La C. & M. Co. Congress, for obvious reasons, did not wish to add anything to the grant from Madison or Columbus to the point where the line was abandoned. The additional grant must commence somewhere.— The natural point was the township named; and it is plain from the act that it was named only for the purpose of indicating where the ten sections to the mile should be reckoned from, not for the purpose of tying the road for all time to the township of Tomah as a terminus fixed by Congress. It seems unreasonable to say that while Congress left the terminal points on Lake St. Croix and Lake Superior as indefinite as before, it intended to fix the town of Tomah absolutely as terminus of the road. It is impossible to imagine any reason for naming that town, save as a proper point for the commencement of the additional grant, in aid of the continuous line. And the lands were all faithfully applied to the construction of this continuous line of road. This court held in West Wis. R'y v. Supevisors of Trempealeau Co,, 35 Wis., 257, that when any continuous twenty miles of road were completed, and the lands pertaining thereto acquired by the company, the trust as to those