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lands was executed. The entire road having been constructed and all the lands acquired, before this change in the question was made, the trust was executed as to all the lands granted. Even if the legislature could not legally authorize any change in the line of the defendant's road which would make a break in the line of the land-grant road from Columbus to Lake St. Croix, still a legislative grant of authority to defendant to make a change which shortens the distance between Columbus and Lake St. Croix several miles, and places the line of the road where it might and should have been placed under the act of congress of 1856, is not a violation of the trust, but a more efficient and honest execution of it. (3.) We deny that the State can, by accepting a grant from the United States to aid in constructing a railroad, surrender its sovereignty as to any corporation which it creates, so as to preclude the legislature from granting privileges or imposing duties which it might otherwise grant or impose. [Counsel argued this proposition at some length.]
III. Is the abandonment of a portion of the franchise of a corporation ground for the forfeiture of the whole? In The Peoples B. & R. Turnpike Co., 24 Wend., 237-245, Cowen, J., after citing many authorities, concludes (p. 245) "that a single act of abuser or willful nonfeasance in a corporation may at the common law be insisted on by the government as a ground of total forfeiture. And he adds that he is inclined to think that as to causes of forfeiture generally, no discrepency will be found between the common law and the New York statute (2 R. S. of N. Y., 2d., § 39); that statute being the same as ours. In The People v. K. & M. Turnpike Co., 23 Wend., 211, Nelson, C. J., says: "The rule at the common law is, that if the franchises are not dependent upon each other, the misuser of one does not forfeit all, (Crause, 305, tit. Franchise, § 85; Finch, 165); and our statute may, I think, admit of a construction to a similar effect." See also Couvier's Law Dic., tit. Quo Warranto, subd. 4, p. 405. We suppose the law to be that if the corporation violates any express condition of the trust upon which it holds the franchise, that is sufficient ground to work a forfeiture of the charter. But we submit that if the court should be of the opinion that upon the whole the better construction of the charter and the law of 1872, would not warrant the act of defendant here complained of, yet is further of opinion that it is a close question, and the construction placed by defendant on said legislation not without support in reason; that defendant acted in good faith, without willfulness; and that, though guilty perhaps of a technical offense, it has done nothing impairing its usefulness or tending to defeat the usefulness of its creation-then the demurrer should be overruled. The information in the statute of quo warranto is a criminal method of prosecution," and visits on the offending corporation the extreme penalty."The leaning of the law is against the party claiming a forfeiture." NELSON, C. J., in the case above cited, says that where the conditions of the franchise are implied, "and of course undefined except by construction of law, a more indulgent consideration may well be given. We are not, then, tied down to the letter of the statute. Their mate
riality to the great end of the institution may be regarded, and enter into the judgment of the court." Counsel further referred, upon this point, to the opinion of CowAN, J., above mentioned, pp. 235 seq., and the authorities therein cited; and argued from the averments of the answer, admitted by the demurrer, that no sufficient ground was shown for a judgment of forfeiture, under the rule established by those authorities, even if the defendant was mistaken as to its legal authority to make the change in question. A judgment of forfeiture should not be rendered by virtue of ch. 31, laws of 1873. Either (1) that act was a legislative judgment that defendant was not authorized by law to change its track, and therefore required it to be relaid; or, (2) it was an attempt, in the exercise of the reserved power over corporations, to compel defendant to build, maintain, and operate a road in addition to that theretofore authorized and constructed according to law. The legislature may have had either purpose, but not both; the two being inconsistent. 1. The language used in the title and in every section of the act, proves unmistakeably that the former is its true character. The act was based entirely upon the assumption that the company had acted illegally in changing its line and removing its track, and the requirement to relay, etc., was based entirely upon the assumed correctness of the legislative judgment upon the questions of law involved. But we have a right to appeal to this court for a determination of these questions; and if this court is of opinion, that the laws in force at the time, authorized the change, then we insist that the only legitimate effect which can be given to the act, is as a mandate to the Attorney-General to try the question in the forum. (2) But if the act is an attempt to exercise the reserved power over charters, can it be sustained as such? Certainly the act is not an exercise of the power to repeal. [Counsel argued this point briefly.] The question then turns entirely upon the power to alter.
If the change made by defendant was warranted by law, the only road which it was authorized to operate when the act now in question was passed, was the road as changed. The changed line was the "original enterprise," and a road from Warren's Mills to Tomah was as foreign to that enterprise as a road from Warren's Mills to Winona would have been. The question then is, whether, under the power to "alter," the charter, the legislature can compel a railroad company to build, maintain, and operate a new road, or, what is the same thing, lateral roads or branches. That the power to "alter" charters is not without limit, has, we believe, been universally conceded by all courts which have had occassion to pass upon the subject. Where better can this limit be placed than where this court placed it in Kenosha, Rockford, & Rock Island R. R. Co., v. Marsh, 17 Wis., 132; that decision confines it to such changes as would not be fundamental,-as would not relieve stock subscribers. There would seem to be neither reason nor justice in holding that under this power the legislature may require a corporation to do what the corporation cannot require its stockholders to furnish the money to enable it to do; nay, what this court would be obliged, at the suit of a non-assenting stockholder, to enjoin the directors
from using the corporate funds to accomplish. This would be requiring the expenditure of corporate funds and at the same time sealing the corporate treasury; demanding the out-lay of the stockholder's money, and by the same act releasing him from the liability to pay. As to the question what is such an alteration as will release the stock-subscriber, counsel cited Woodward, J., in Everhart v. Railway Co., 28 Pa. St., 336; Nelson, C. J. in 5. Hill, 383; and the opinion of Paine, J., in the case above cited from 17 Wis. The first defines the alterations in the charter which do not impair the contract of subscription to be "modifications and improvements * useful to the public and beneficial to the company and in accordance with what was the understanding of the subscribers as to the real objects to be effected." The second admits that" mere formal amendments, or those which are clearly enough beneficial or at least not prejudicial to his interests," would perhaps not release the subscriber. From the third opinion it is clear that only such alterations as are really in aid of the original enterprise, those which are "tributary to it" and tend to "make its operation more perfect and successful," those which "experience may show to be necessary for its most successful prosecution," those which are "in furtherance of the original undertaking, and incidental to it," and which leave it substantially the same, can be upheld as not fundamental and therefore not releasing stock subscribers. The new road from Tomah to Warren's Mills is clearly not such a change. It is admitted by the demurrer that its construction would require a large amount of money; that its operation would involve the continued, exclusive and separate use of several locomotives and cars, freight and passenger; that there is and will be no business between Warren's Mills and Tomah; that it will connect with no road at Tomah but the M. & St. P. road, with which defendant's road now connects only twelve miles away; that it would be of no use in connection with the general traffic, through or local of defendant's road, and that it would be a constant and burdensome expense, for which there would be no return in added business. Upon no known principle applicable to the subject can this be regarded as anything less than a radical change in the enterprise. One such alteration as this might easily change the original enterprise, yet new and struggling, from one of fair prospective profit to one of sure prospective loss. Counsel further suggested that while it might not be possible in all cases to distinguish between an alteration fundamental, and one not so, yet a reasonably fair test might perhaps be found in the inquiry whether the thing required to be done by the alteration be such that in the nature of things it can efficiently and properly be done only by the holders of the original franchise, or such that it may with equal propriety be intrusted to a separate and independent corporation. In the latter case there is certainly the addition of new franchise, in its nature distinct and separate. [Upon this ground, as well as others, counsel distinguished 109 Mass., from the present case.] The road from Tomah to Warren's Mills could be as well constructed and operated by an independent organization as by de
fendant. Its construction and operation involve the exercise of a franchise distinct from that now held by defendent. It is admitted, and would be manifest if not admitted, that defendent could not operate that road as a part of its present road. We submit, therefore, that if the directors were about to enter, without the consent of the stockholders, upon the construction of that road, and to employ the corporate funds for that purpose, the law would afford the stockholders a prompt preventive remedy; and that a call upon the stock subscriber for money to be so used would be completely met by the answer, "Non hæc in fœdera veni."
RYAN. C. J. I. It was understood on the argument of the demurrer, that, prior to 1863, the La Crosse & Milwaukee Railroad Company had located and built, as part of the land-grant road under ch. 122, Laws of 1856, the road from Portage City to Tomah, and had located the line of the land grant road northward from Tomah to Lake St. Croix, but had failed to build any part of the land grant road beyond Tomah; and had built its road westward from Tomah to La Crosse, outside of the land-grant route, and wholly distinct from it.
Thereupon the legislature, by ch. 243 of 1863, repealed so much of the franchise and grant to the La Crosse & Milwaukee Company as was applicable to the road from Tomah to Lake St. Croix, and incorporated the defendant by the name, afterwards changed, of the Tomah and Lake St. Croix Railroad Company; endowing it, for the purpose of aiding it in the construction of the road which it was thereby authorized to construct, with so much of the land-grant as was applicable to the road from Tomah to Lake St. Croix, resumed from the La Crosse & Milwaukee Company.
It is very manifest from the general scope and tenor of the charter, that it was the purpose of the legislature to substitute, as its agent or trustee under the grant of congress, pro tanto, a new company, for the insolvent and almost extinct La Crosse & Milwaukee Company, so as to secure so much of the land-grant road as the charter covers, which the latter company had virtually abandoned: that is, the road from Tomah to Lake St. Croix; placing the new company, quoad hoc, in the very position abandoned by the old. The road which the defendant was authorized by sec. 5 to locate, construct and operate, is afterwards some three times designated in sec. 14 as a road trom Tomah to St. Croix; corresponding exactly with the franchise of the La Crosse & Milwaukee Company repealed in sec. 18, with the grant resumed from that company and conferred on the defendant, and with the terminal designations in the name of the defendant.
In sec. 5, however, the express authority to the defendant is to locate, construct and operate a road from such point as the directors should determine in the town of Tomah, or on the track of the LaCrosse & Milwaukee Railroad, or of any other railroad running out of Tomah, by way of Black River Falls, to such point on Lake St. Croix between townships 25 and 31, as the directors should deter
Laying out of view the contingency of other railroads running
out of Tomah, if this choice of the southern terminus is to be taken literally, uncontrolled by other parts and the general tenor of the charter, the directors might have located it at Mtlwaukee, or at La Crosse, or at any intermediate point of the La Crosse & Milwaukee Railroad. This is so palpably and strangely inconsistent with the whole scope and tenor of the charter, and with its language elsewhere, that it is difficult to accept it as the intention of the legisture. It is plain throughout the statute that the legislature intended the southern terminus to be within the town of Tomah. And a choice of it outside of the town, might have been so made as to baffle the whole policy of the statute. Indeed there is a positive contradiction between sec. 5 and sec. 14; and one or the other must give way. But while it is so difficult to comprehend why an elèction of terminus should be given outside of Tomah, it is very easy to understand why the legislature should require the southern terminus within the town to be connected there with another railroad, so as to make a connected line to other points. This suggested to us that the entire difficulty would disappear by reading and for or. It struck us so forcibly that this must be the true reading that we referred to the enrolled act; but there we found the same word as in the printed volume.
In such a case, in a private document, there would be no difficulty in construing or in the sense of and. In deeds, agreements, wills, and other private papers, the word or, said to be one of the most equivocal in the language, should be construed in a copulative and not in a disjunctive sense, when necessary to the spirit and intent of the document. In such papers, and and or are readily convertable words according to the sense required by the context; and ever since what is called the leading case of Fairfield r. Morgan, the rule has been familiar to the profession. See Mallory's Case, 5 Coke, 111 b.; Denn v. Kemeys, 9 East, 366: Right v. Day, 16 id., 67: Fairfield v. Morgan, 5 Bos. & Pul., 38; Jackson v. Topping, 1 Wend., 388; Hunt r. Hunt, 11 Met., 88; Englefried v. Woelpart, 1 Yeates, 41; Griffith v. Woodward, id., 316.
It is not very apparent why the same rule should not be equally applied to statutes, yet it does not appear to have been often done; and Mr. Dwarris seems to question whether it should be done except to support a settled construction. Dwarris, 772. But he seems to have overlooked Hall v. Philips, 1 Ventris, 62, in which or, in a penal statute, was held to mean and. In White v. Commonwealth, 1 S. & R., 139, the court heid or to be copulative not disjunctive, and equivalent to that is to say.*
And, seeing no other way to reconcile the apparent inconsistencies of the defendant's charter, and seeing this way of putting all its provisions in perfect accord with each other and with the evident design of the legislature, we feel warranted by authority in holding or in the phrase in question in section 5 to be equivalent to and; so that it shall read-"in the town of Tomah and on the
*See Winterfield v. Stauss 24 Wis., 394, and O'Connell v. Gillespie, 17 Ind., 459, there cited, which were overlooked when this opinion was written. See also Farrell v. Lamar, 1 Wis., 8.