45 Wis. 543 | Wis. | 1878
I. This action was brought in March, 1877, by the plaintiff, in his own behalf, and on behalf of all others similarly interested, as tax-payers, for the purpose of having adjudged void a subscription by the defendant Town of Plainfield to the capital stock of the defendant railway company, and to have the bonds of the town issued in payment of such capital stock declared void and canceled. The subscription to the stock was made under and by virtue of ch. 126, Laws of 1S69, as amended by ch. 31, Laws of 1871. The plaintiff insists that the subscription and bonds were void, because ch. 126 was never passed by the assembly, and consequently never became a law. The argument in support of this position is briefly this: By the first clause of sec. 10, art. IV of the constitution,
II. The next objection taken to the validity of the subscription is, that even though ch. 126 was properly passed by the assembly, yet, within the rule laid down in the cases of Whiting v. Railway Co., 25 Wis., 167, and Rogan v. The City of Watertown, 30 id., 259, it is unconstitutional and void, because it attempts to authorize a donation of aid to a railroad corporation, and does not authorize 'a subscription to its capital stock. This objection raises a more serious question, and one upon which the members of this court are divided in opinion. A majority of the court, however, think that this objection cannot prevail. It may be proper to remark at the outset, that it is necessary, in the further consideration of this point, to hear in mind the precise question raised by the record, which must be decided. And that is, whether ch. 126, under any fair construction which can be placed.upon it, authorized the town to subscribe for the capital stock of the railroad company, and issue its bonds to pay for such subscription. For it is the validity of that transaction which we are called to pass upon, and not whether the town could make a donation of its bonds to the company. If the bonds were issued as a donation, they would doubtless be void, and the plaintiff would be entitled to the relief asked; while, if issued.to pay for a.stock subscription which the town had "power to make, they would be valid obligations, and such relief would he denied. Does, then, the law authorize the subscription, which was actually made, and the issuing of the bonds to pay for the same?
By the first section of the act, as amended, it is made lawful for the proper officers of any county, through any portion of which any part of the Wisconsin Central Railroad should run, or the officers of any town in or near such county, to levy a tax upon all the taxable property in such county or town to aid in the location and construction of any portion of such road, and for the purchase of right of way, and depot grounds.
On the argument, the case of The Attorney General v. Eau Claire, supra, was referred to as having a bearing upon the construction of the statute before us. That was an injunction bill filed in this court to restrain the defendant city from constructing a dam across the Chippewa river, and issuing its bonds to pay for the same. The dam was about to be built under an act of the legislature. But the court held the law invalid, because it could not determine from the act itself whether the intent was to authorize the erection and maintenance of a dam for a public municipal purpose, or for‘a private use; that, while the city was authorized to erect the dam, the law left it optional with the city whether it should be used for a public or for a merely private purpose. That decision does not seem to have any very direct application to the case before ns. Eor here, as we construe the statute, it does not “grant an equivocal power, subject to the election of the-grantee for1 one of two purposes, the one lawful and the other unlawful.”
III. In January, 1872, the defendant railway, desiring aid from the Town of Plainfield, submitted to the town a proposition, in substance, that it would build its road from Stevens Point to the city of Portage, a distance of about seventy-five miles, providing the municipal corporations along or adjacent to the road would vote to take, and would take, the stock of the company to the amount of $300,000, in exchange for their bonds; and that the town would subscribe $20,000 to its capital stock, and issue' its bonds in payment therefor. The
In a number of cases which have come before this court, it has, in effect, been decided, that a proposition for aid, submitted by a railroad company to the voters of a town or city, and accepted by the voters, becomes a contract mutually binding upon the railroad company and the town. Phillips v. The Town of Albany, 28 Wis., 340; Lawson v. The Mil. & Northern R’y, 30 id., 597; Lawson v. Schnellen, 33 id., 288; Board
It follows from these views, that the judgment of the circuit "court must be affirmed.
It is the settled doctrine of this court, that, when a tax deed is about to issue on a tax invalid for some cause going to its foundation, the owner of the land may proceed in equity to enjoin it. Marsh v. Supervisors, 42 Wis., 502. It is perhaps to be regretted that such cases were not left to be determined in actions at law, when the tax deed could be impeached at law on the ground for which it is enjoined in equity. It is, however, quite too late to restrict this jurisdiction now.
The jurisdiction has been, perhaps inadvertently, extended to cases not quite within the rule. It may be that this extension of the jurisdiction cannot now be disturbed. But I think that it ought not to be extended.
I have been able to find no case in this court, and I think that there is none, except perhaps Peck v. School District, 21 Wis., 523, which appears to be an exceptional case in every respect, where an action by a single tax-payer, either for himself or for himself and others with like interest, to enjoin the collection of an entire tax, has been upheld. Such an action would be apparently as much beyond the plaintiff’s right, as one by a single tax-payer to enjoin the execution of all tax deeds upon an invalid tax.
Actions have been upheld by a single tax-payer, in behalf of himself and others in like interest, to enjoin municipal authorities from' issuing negotiable securities, creating a municipal debt to be repaid by taxation. Whiting v. Railroad Co., 25 Wis., 167. Generally, when a wrong is threatened against the whole body of a corporation, the remedy is primarily in the corporation itself; and a single corporator can proceed only upon refusal of the governing body to act. And perhaps the true ground of sustaining actions of the nature of Whiting v. Railroad Co., without averment of demand and refusal of the
But when the securities have been actually issued, it appears to me that, on the general principle, a single tax-payer can maintain an action to cancel the securities, in the hands of third pfersons, and the contract on which they were issued, if at all, only upon averment of demand and refusal of the governing body of the corporation to act. Such an action involves The whole right, and the whole right is in the corporation at large. Primarily, therefore, the right of action is in‘the corporation; and the nature of the action does not imply the refusal of the governing body to act, or the right of the taxpayer to proceed for the wrong to the whole corporation.
The cases in this court leave this question in some uncertainty. It was probably in one of the cases decided in Rochester v. Alfred Bank, 13 Wis., 432. There were two actions, one by the town, and the other by a tax-payer; and both are decided together, and sustained. The printed cases remaining here do not give the pleadings; but it is improbable, in the circumstances, that a demand and refusal of the town to act was averred in the complaint of the tax-payer. The difficulty is not alluded to in the opinion, which apparently proceeds throughout upon the right of the corporation, the town; and throws no light upon the ground on which two contemporaneous actions, one by the corporation and one by the tax-payer, were both sustained. The same question appears to have been in Sauerhering v. Railroad Co., 25 Wis., 447, where it is also overlooked; the court deciding against the plaintiff on the merits. The question may have been in other cases, but I have found none in which it has been passed upon. And •there are certainly some cases looking strongly the other way. Judd v. Fox Lake, 28 Wis., 583; West v. Ballard, 32 Wis., 168.
- In this state of the decisions, counsel appears to have raised the question in Lawson v. Railway Co., 30 Wis., 597; but the court declined to pass upon it, deciding against the plaintiff on other grounds.
He does not aver that any tax deed is about to issue, to work a cloud upon the title of his realty; but only that the treasurer will levy upon and sell his goods and chattels for the payment of the tax which he impeaches. And, notwithstanding Peck v. School District, it is the settled doctrine of this court that equity will not restrain the sale of personal property for taxes. Van Cott v. Supervisors, 18 Wis., 247; State Bank v. Milwaukee, id., 281; C. & N. W. R'y Co. v. Fort Howard, 21 id., 44; Lenz v. Charlton, 23 id., 478; Quinney v. Stockbridge, 33 id., 505.
For these reasons I am not prepared to dissent from'the judgment in this case.
The majority of the court, however, place the judgment upon an entirely different ground; the validity under the constitution of ch. 126 of 1869; to which I cannot assent. This statute was before the court in Lawson v. Schnellen, 33 Wis., 288; but its validity is not considered or adjudged. The question appears, therefore, to be an open one.
The distinguished gentleman who represented the bondholders on the argument, warned the court, with great emphasis, against repudiation. That is the key-word of the cant of speculators in questionable public securities. It was hurled at this court when it rendered just judgment upon sound principle in Clark v. Janesville, 10 Wis., 136; Rochester v. Alfred Bank, 13 id., 432; Berliner v. Waterloo, 14 id., 378; Veeder v. Lima, 19 id., 280, and perhaps other cases. Gelpcke v. Dubuque, 1 Wall., 175. That word of reproach, any such word of reproach, can have no influence on the mind of any judge fit to hold his office. It is as much the duty of courts to avoid illegal, as to enforce legal contracts. Courts have nothing to do with the consequences of judgments rendered on settled
■In saying this, I am not unmindful of the duty so to deal with the statute in question, if possible, ut res macjis valeat quam jpereat. “"We owe great deference to the legislative authority. It is our duty to give effect to all its enactments according to its intention, as far as we have constitutional right and power. And to that end it behooves us, as far as we are able, to place such a construction on statutes as will reconcile them to the constitution, and to give them effective operation, under the constitution, according to the intention with which they are passed. It would be a palpable violation of judicial duty and propriety, to seek in a statute a construction in conflict with the constitution or with the object of its enactment; or to admit such a construction when the statute is fairly susceptible of another in accord with the constitution and the legislative intention.” Att'y General v. Eau Claire, 37 Wis., 400.
In the same case it is said of a legislative grant of power: “ It is certain that if the power be alternative and optional, either for a public or for a private use — to construct a dam, to be used, when constructed, either for the purpose of water works or for the purpose of leasing the water power for man
This statute authorizes the appellant and other municipalities to levy taxes and issue bonds to aid in the location and construction of the railroad, and for the purchase of right of way and depot grounds for it, in such sums and ujjon such terms and conditions and considerations, as may be agreed
“ The city, town or county becomes a part owner of the road, to the extent of the stock taken, and, the work being one which the public might have engaged in as the sole owner, and paid for entirely out of the public funds, it has been considered that there was no valid objection to its becoming a part owner thereof as a stockholder in a private corporation which has undertaken to do the same work. To the extent of the stock taken, the city, town or county is directly interested and benefited by the money expended in the work, the same being a matter of public concern, and it is, in our judgment, upon this principle, and this alone, that the taxation in that class of cases can be sustained.” Whiting v. Railroad Co. This is not the language merely of the late chief justice; it takes weight because it comes from him, but it is the Ian-
In Whiting v. Railroad Co., there was a valuable consideration for municipal aid authorized by the statute: cheap transportation for the inhabitants of the municipality. Of course there may be innumerable considerations of like character for municipal aid. But the principle of that case is, that municipal subscription to the stock makes the road pro tanto a public road, which may therefore be built pro tanto at municipal cost, and that no other consideration will support municipal aid to it. There is no such limit in the statute in question. It leaves the whole question of aid, its terms and conditions and considerations, without a word of restriction, to any agreement which the parties may make. It therefore makes a stronger case for the rule of Att’y Gen. v. Eau Claire, than the statute in that case. There, there was a power for a double purpose, one public and one private. Here there is a comprehensive power, with one lawful and numberless unlawful ¡ourposes; a power “link’d with one virtue and a thousand crimes.” And this power to issue municipal bonds and tax municipal property, for good and evil, for one public and for many private purposes, is clearly void under the decision of Att’y Gen. v. Eau Claire.
It is true that the execution of the power here was for the public purpose. But that does not aid the construction of the statute. If the power be double, for lawful and unlawful purposes, it is bad for all purposes. A statute of such a character cannot be held good for one purpose and bad for another; making the validity of the statute dependent, not on its construction, but upon what is done under its authority. The duplicity is in the power, and is fatal to it. No construction can remove the duplicity inherent in it, and no execution of it can redeem it from the vice essential to it. What might be valid under a valid statute, cannot be supported under an invalid statute. The statute and the execution of the statute
- This appears so apparent to me that, had not the court held otherwise, I should be inclined to call any attempt to sustain the statute by forced construction, absurd. It can be sustained, not by construction, but by interpolation; reading the terms, conditions and considerations of the statute, as lawful terms, conditions and considerations. The statute implies no such limitation. It leaves the terms, conditions and considerations absolutely to the agreement of the parties; leaves the validity of the terms and considerations absolutely to the judgment of the parties; those being limited only to aid to the railroad; not otherwise at all limited by the nature of the terms, conditions and considerations themselves. The statute commits the whole subject to agreement of the parties; leaving them fine to make any agreement of any character for the purpose of aiding the railroad. There is no other limit in the language of the statute; no other limit to the agreement to be made. Any other limit does violence to the language of the statute; not merely interpolating a limit which the statute itself does not make, but a limit inconsistent with its terms. It takes from the parties the scope and freedom of agreement which the statute expressly gives them.
As I understand the argument of the respondents, it is, that certain adjudications elsewhere hold that discretionary powers conferred by the expressions, terms and conditions, are to be exercised within legal limits; that the law will not imply an unlawful discretion, not given by expz-ess words, and will not defeat a statute by inferring that it contemplated an unlawful act. Kellogg v. Slauson, 1 Kern an, 302; Nye v. Van Huson, 6 Mich., 329; and perhaps other cases to the same effect.
This mode of interpretation must rest on giving a limit, not inherent in it, to the language of a statute, founded on the
As early as 1853 it was held, that an assignment for the benefit of creditors, authorizing the assignee to sell in such manner and upon such terms and for such prices as he should deem advisable, was an authority to sell on credit,, unlawfully, and fatal to the assignment. The decision turned mainly on the word terms, as implying consideration, which was held not to restrict the assignee to lawful terms. Hutchinson v. Lord, 1 Wis., 286. This was followed by Keep v. Sanderson, 2 id., 42, another case of assignment for the benefit of creditors, where the power was to sell upon such terms and conditions as the assignee might judge best. The doctrine of Hutchinson v. Lord was affirmed, and applied to the language of the assignment in the case, terms and conditions. That phrase was held to be sufficiently comprehensive to include an unlawful power to sell on credit, and the assignment was held void for the use of that phrase in the power given to the as-signee. It was suggested that these cases were overruled by Norton v. Kearney, 10 Wis., 443. But that is a mistake. The language there' was, that the assignee should dispose of the property to the best advantage in his discretion; and this is held not to imply the unlawful power to sell on credit. Hutchinson v. Lord and Keep v. Sanderson are cited and commented upon without a word of dissent. The case then before the court is distinguished from them. And whether that case
And it may be remarked, that the construction of Hutchinson v. Lord and Keep v. Sanderson is very clearly recognized by the late chief justice, in his opinion in Rogan v. Watertown, 30 Wis., 259.
This was the state of the law by an unbroken series of decisions, when the statute in this case was passed, and entered into it. And when the legislature used the unlimited phrase, so interpreted by a series of decisions in this court, they must be held to have used it in the light of those decisions, as a power limited only by the agreement of the parties, and not limited by any rule of law, as a power to agree upon any terms and conditions which the courts might hold to be valid or invalid in the law. And this construction appears to me to have been the intention of the legislature, apparent in and out of the statute.
Por in the statute itself, there is not only power to levy taxes and issue bonds to aid in the location and construction of the railroad generally, which would go to the general fund
And so there is here clearly embraced in the general power, within the general scope of the terms, conditions and considerations of the statute, an express power to do one thing of the character which the decision of the court holds to be impliedly excluded from the terms and conditions, because not lawful. It appears to me, with all deference to the better judgment of the court, that the legislature has expressly shown the sense in which it used the phrase, terms and conditions, beyond the power of the court to limit it by mere construction.
Of course, the legislative intention is to govern, so far as it can be discovered from the language of the statute, aided by other legislation in pari materia, especially contemporaneous legislation. “ It is well settled, that, in construing a doubtful statute, and for the purpose of arriving at the legislative intent, all acts on the same subject-matter are to be taken together and examined, in order to arrive at the same result. ‘ All acts in pari materia,’ said Lord Mansfield, ‘ are to be taken together, as if they were one law.5 ‘ "Where,’ he said on another occasion, ‘ there are different statutes m pari materia,
After all, the question may be well asked, why, if the legislature intended to restrict this grant of powTer to lawful purposes, it did not restrict it so in terms? I think the legislation of the same session effectually and conclusively answers this question. When the legislature of 1869 intended to limit powers of like general character, it did limit them. It is so limited in ch. 113 and ch. 134, Gen. Laws, and in ch. 90, P. & L. Laws of that year. It is not so limited in ch. 126, ch. 130, or ch. 188, Gen. Laws; or by chapts. 183, 201, 203, 287, 348, 380, 436, or 454, P. & L. Laws. Many of these latter statutes expressly authorize mere donations to railroad companies of bonds or money raised by tax. And it appears to me to be outside of all reasonable argument, to contend that the legislature, by implication, intended to exclude uses of the power in this case within its terms, out of regard for the law which it expressly authorized in contemporaneous statutes in pari materia. That is giving a construction to the legislative conscience, which the legislature itself has expressly rejected; judging of its intention, not by what it did, but by what it did not. If this had been a mere argument at the bar, I would speak of it in terms unbecoming a criticism of a judicial decision.
The first section of the statute, and the power, were amended in 1871, in a way not material here. In the mean time Whiting v. Railroad Co. was decided. And the learned counsel for the railroad company ingeniously suggested that the reenactment of the power went to show that the legislature did not regard it as inconsistent with the judgment of this court in that case. To me it appears that if, in the reenactment of the section, the legislature had regard for that decision, it would have cured it of its duplicity in the amendment.
I shall not consider the question whether an exchange of railroad bonds for municipal bonds would support the latter. Clearly they would not, under the doctrine of Whiting v. Railroad Co. There are some cases in the court in which the question might have arisen, but was overlooked. I know of no case in which the validity of such an exchange of bonds has been asserted in the court. I, for one, agree with the late chief justice that it is unfortunate that municipal aid to extra-municipal railroads has ever been sustained; and I am unwilling to extend the doctrine. But, in the present casé, I will assume that an exchange of bonds would be a valid consideration to support municipal taxation. In that light I will consider sec. 7.
That section is clearly independent. It is merely permissive. Attorney General v. Eau Claire, supra. It has no tendency to limit the power of secs. 1 and 2, to an exchange of securities. It simply assumes that the power comprehends, not that it is limited to, such an exchange. And it merely permits municipal disposition of such securities, when the exchange happens to be made under the power.
But the section furnishes its own argument in support of my view of the power. For it provides for the disposition of securities held by a municipality, upon such terms and oondi- ' tions as may be agreed upon between the municipality and the railroad company. The term is plainly used in the same sense as in secs. 1 and 2; and clearly means unreserved terms and conditions; terms and conditions unlimited except by agreement. This appears still more conclusively to be the true construction, because the power to dispose of the securities gives the right to do so in the same manner and with like effect as individuals, upon the terms and conditions of the agreement. This appears to me plainly to imply that the double limitation on the power of disposition is of like character; as the right of disposition is to be such as individuals could exercise, so
"I deplore the decision on this point; not merely because I think it wrong, hut because I am apprehensive that it will be classed with such cases as Newcomb v. Smith, 2 Pin., 131; Re Booth, 3 Wis., 13; Kneeland v. Milwaukee, 15 id., 454; State v. Main, 16 id., 398; Brodhead v. Milwaukee, 19 id., 624; Gillespie v. Palmer, 20 id., 544; which have long been made a reproach to the court, as judgment's proceeding upon policy rather than upon principle.
In the other points discussed in the opinion of the court, I entirely concur.
By the Court. — Judgment affirmed.
A motion by the appellant for a rehearing was denied.