Bound v. Wisconsin Central Railroad, 45 Wis. 543

45 Wis. 543 | Wis. | 1878

Cole, J.

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, each house of the legislature is required to keep a journal of its proceedings and publish the same. The statute makes it the duty of the chief clerk of each house, within ten days after the close of each session, to furnish the public printer with a correct copy of the journals of their respective houses for publication. Tay Stats., ch. 6, § 33. An examination of the assembly journal, it is claimed, fails to show the final passage by that body of ch. 126. This objection is not sustained by the journal to which reference is made. The journal shows that bill No. 181 (which was subsequently enacted as ch. 126), was introduced in the senate, passed that body, and was sent to the assembly for its concurrence. It appears that it was read the first and second time in the assembly, and referred. After going through the various stages of legislation, it was read the third time in the assembly, and concurred in. All this plainly appears in the assembly journal. There is obviously a mere clerical error in the entry in the journal on page 727, in using the singular instead of the plural form of the verb. But the word “ was ” evidently refers to each and all of the senate bills immediately preceding. Besides the satisfactory evidence' furnished by the journal itself, of its passage by the assembly, we find the law published in the bound volume of the session laws, verified by the secretary of state; and the presumption of course is, that the bill became a law pursuant to the requirements of the constitution. On this point, we were referred, by the learned counsel for the plaintiff, to the cases of Town of Ottawa v. Perkins, 94 U. S. R., 260; and The People ex rel. Purdy v. Com'rs of Highways, etc., 54 N. Y., 276. The facts in those cases are so dissimilar to those in the one before us, that the decisions made there are quite impertinent. The constitutional provisions under consideration in those cases required that on the passage of the bills in question the vote should be taken by ayes and noes, and entered on the journal. The journal failed to contain the proper entries, and did not show, therefore, that the acts were passed in the mode prescribed by the constitution. But there is nothing of the kind in this case. On the facts here, we must presume that the law was properly passed; and that presumption is not overthrown, bnt strengthened, by what we find in the journal relating to the matter. These remarks are all we deem it necessary to make on overruling the first objection.

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. and for like purposes, to issue the bonds of such county or town, in such sums and upon such terms and conditions as siiall be agreed upon by and between such county or town and the railroad company, but no such tax (except a tax for the purchase of the right of way, and depot grounds, and for location) shall be levied, nor bonds issued, by any .such county or town, unless a majority of the legal voters of the county or town, voting on the question, shall first have voted in favor of the tax, or the issuing of the bonds, as provided in the act. The next section provides that, whenever the railroad company shall require aid from any county or town, it shall make and deliver to the clerk of the board of supervisors of such county, or to the town clerk, as the case may be, a definite proposition in writing, signed by the president or secretary of the company, and sealed with its common seal, which proposition shall contain a distinct statement of the amount of money or bonds desired, and the terms, conditions and considerations upon which the same will be required to be paid and delivered to the company. Upon receiving the proposition, the clerk of the board or town shall, within ten days, give notice of an election to beheld at a designated time and place, which notice shall contain a full statement of the proposition made by the railroad company, and shall call upon the voters to deposit a ballot on which shall be written or printed the words, “ for the railroad proposition,” or the words, “against the railroad proposition.” The next two sections of the act prescribe the manner in which the election shall be held, and votes canvassed, and it is provided that, if a majority of the legal voters who shall vote on the question, vote for the railroad proposition, it shall be the duty of the proper officers of such county or toYm to cause the tax or bonds so voted to be raised or issued, to be delivered to the railroad company on the performance by said company of the terms or considerations contained in its proposition. The seventh section provides, that all shares of the capital stock, or bonds, or other securities, given by the railroad to any county or town, may be taken, held, sold and transferred, by such county or town, in the same manner and with lite effect as can be done by individuals, and upon such terms and conditions as shall have been agreed upon between such county or town and the railroad company. Then, provision is made for levying a sufficient tax annually to pay the interest on the bonds, and to create a sinking fund to pay the principal thereof when the same shall become due and payable. These are the material parts of the act; and the question is, Do they not authorize the- subscription which was made in this case? The learned counsel for the defendants contend, that from various clauses in the act, the intention is manifest, that a subscription to the capital stock, and not a donation, is authorized and contemplated. They argue and insist that all parts of the act must be examined to determine its scope and meaning; and they say that it is the duty of the court to place upon the statute a construction which will sustain and reconcile it, if possible, with the constitution. There is no doubt of the pertinency and correctness of the rule of construction relied on by counsel. The chief justice, in the recent case of the Attorney General v. Eau Claire, 37 Wis., 400-438, thus states the rule upon this subject: “ 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 sucha construction when the statute is fairly susceptible of another in accord with the constitution and the legislative intention.” Bearing in mind this familiar rule of construction, let ns examine the different clauses relied on by defendant’s counsel to sustain their view of the act. In the first section, it will be noticed, the town is authorized to levy a tax or issue its bonds “to aid,” etc.Kin such sums, and “ upon such terms and conditions as ' shall be agreed upon ” between it and the railroad company. In the next section, when the company desired aid from the town, it was required to submit a definite proposition, containing a distinct statement of the amount of money and bonds desired, “and the terms and conditions and consideration's upon which the same would be required to be paid and delivered.” These clauses, it is argued, qualify and limit the authority “to aid” — especially the word “considerations,” used in the second clause,— showing that it was intended some valuable consideration or equivalent should be made or given by the railroad company to the town for the aid received. A donation means, giving something gratuitously, or without ■consideration. The words here used repel all inference or presumption that a donation was intended or authorized. This reasoning has very great force, and becomes conclusive when considered in connection with the significant language used in section seven. This section, we think, relates back to the prior sections, qualifying "their effect and serving to explain •their ,meaning. The seventh section speaks of the shares of capital stock held by the town, and declares how such shares may be sold and transferred, language quite out of place in the law, having nothing to operate on, if no subscription to stock was authorized by the act. But it is objected that the words “terms, conditions and considerations ” do not confine the railroad proposition to a lawful subscription of stock, but may be satisfied by any unlawful terms and conditions which may be agreed upon between the town and the railroad company. But would it not be quite inadmissible for the court' to assume, that the “ terms, conditions and considerations,” which the legislature authorized the railroad company to make, and the town to accept, related to or contemplated some unlawful arrangement or agreement, and not a lawful one? It has often been decided by this court, that the legislature might authorize towns and counties to subscribe to the capital stock of a railroad company, and levy taxes to pay for such subscription. It has also been as deliberately held, that the legislature could not confer upon such bodies corporate power to issue their bonds or raise money by taxation for the purpose of making a donation to a railroad corporation. And, it seems to us, we cannot infer from anything in this act that an unlawful power was intended to be granted. Our conclusion, therefore, is, that the power conferred by the language, that the town may aid in the location and construction of a railroad, by the issue of its bonds on such terms, conditions and considerations as the town and railroad may agree upon, implies a lawful power, one to be exercised within legal limits under the constitution.

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 bonds of the town and certificates of stock were to be deposited with the trustee in trust, until the company performed the conditions specified in its proposition, and made ready for use a continuous railway from Stevens Point through the town. On receiving this proposition, the town clerk published a notice, as required by law, for an election by the legal voters to vote on the proposition. At an election held January 31, 1872, pursuant to the notice given by the clerk, a majority of the votes cast was in favor of the proposition. The railroad proposition was submitted to the other towns along the road, and they refused to subscribe for more than $184,500 in all, including the subscription of the Town of Plainfield. In April, 1875, before the company had built its road through the town and earned “the bonds, the same proposition was again submitted to the voters of the town, under ch. 317, Laws of 1874, and by a majority vote was rescinded. The railroad company commenced the work of grading and constructing its road in 1873, but did not fully complete the whole line for use through the town, according to the terms and conditions of its proposition, until January, 1876. How it is claimed by the plaintiff’s counsel, that the vote of the town in 1872, accepting the proposition as submitted, did not constitute a binding legal obligation upon the parties; that the acceptance of it by the town was nothing more than an acceptance of an option on the part of the company to build its road or not; and that whatever authority was conferred upon the town officers by the vote in 1872 to make the subscription, was wholly, revoked by the adoption of the amendment to sec. 3, art. XI of the constitution, in 1874, and by the rescinding vote taken in April, 1875.

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 of Supervisors of Douglas Co. v. Walbridge, 38 id., 179; and The Town of Platteville v. The Galena & Southern Wis. R’y Co., 43 id., 493. In the - last case it was held, that the railway company was hound to build its road according to the line designated in its proposition, and, in case of a feeble company of doubtful ability to build any road between- the terminal points of its charter, the company was restrained, at the suit of a municipality which had subscribed for stock and issued its bonds in aid of the proposed main line, from wasting its means in constructing branch roads so as to disable it to build such main line, and from diverting such line. See also The Supervisors v. Wis. Central R’y, 121 Mass., 460; and Town of East Lincoln v. Davenport, 94 U. S., 801. If the effect of the acceptance of the railroad proposition by the town was to make a contract, it is very plain that such contract could not afterwards be rescinded by the electors of the town. Uor would the obligation of such contract be affected by the constitutional amendment adopted in 1874. County of Moultrie v. The Savings Panic, 92 U. S., 631. It is said, however, that the railroad was not bound by its proposition to build its road, unless and until the municipalities along the line had subscribed and taken $300,000 of its capital stock, which they never did do. It is very obvious that this condition was one for the benefit of the company, and which it might waive. The company, in fact, completed its road as proposed, and became entitled to the bonds which the town issued. It was solely in its oj)tion to refuse to build the road if the entire subscription was not obtained. But, having seen fit to waive that condition, and fully execute its proposition without that aid being furnished, no subscribing town has any ground to complain. Indeed, in this case, it is not the town which is seeking to rescind the subscription and cancel the bonds. The town seems willing to abide by its contract. The point was made on the argument, that an individual tax-payer of the town, upon the facts stated in the complaint, could not maintain this action. Being against the plaintiff on the merits of the case, we have not felt called upon to consider this objection, and it is left open for future consideration.

It follows from these views, that the judgment of the circuit "court must be affirmed.

Ryan, C. J.

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 governing body to act, is that the governing body itself is about to do the wrong. Dousman v. Mining Co., 40 Wis., 418.

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.

In the present case, the appellant seeks to cancel the contract and the securities of the town issued under it, and to enjoin the collection of a tax for payment of the securities, without any averment of demand or refusal of the governing body of the town to act. And I am disposed to think that he has gone beyond his right.

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 principles of law. Ear better that these bondholders should lose their money invested in these bonds, that! that principles of judicial decision should lose their control of the judgments of the court. It is the strict duty of this court to pass upon the validity of the statute under which the bonds in this case were issued, upon fixed rules of judicial decision, in disregard of all outcry from counsel, clients or others. And it would be far better and more honorable to this court to encounter the slang of repudiation, than to earn the reputation, as may .'have happened to other courts, of being a court of claims for speculators in abortive evidences of public debt in "Wall street or elsewhere. Such a threat — -it sounded like one — man have no influence on me to swerve a line from what I believe to be the law or my duty to declare it at all hazards. Unfortunate the court wanting in courage to declare unpalatable right ' against pretentious, plausible wrong.

■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 manufacturing purposes, in tlie discretion of the city, — it cannot be upheld. It seems too plain for discussion, that if the legislature grant an equivocal power, subject to the election of the grantee, for either one or other of two purposes, the one lawful and the other unlawful, the power cannot be upheld upon the chance of its being lawfully applied. In such a case the election is inherent in the grant, and cannot be separated from it. The validity or invalidity of the use resting in the subsequent discretion of the grantee, the power cannot be aided by anything dehors the grant itself. The discretion is in the statute; and the statute must be construed in the light of the discretion to put the work authorized to an unlawful use. When the purpose of such a statute is double, each purpose must be valid, to sustain the power. The case is not that of a statute valid in part and void in part. In such a grant as we are considering, the valid and void purposes are inseparable; and the void purpose taints the whole statute. The ease is not that of a statute susceptible of two constructions, the one valid and the other void. In such a statute as we are considering, the duplicity is not in construction, but in the power granted. Construction has done its office when it finds the discretion in the grant. And it is impossible to uphold a franchise granted to impose a public burden, lawful or unlawful at the election of the corporation to which it is granted; to construct and maintain a dam at public expense, to be applied either to a public or a private use, as the city may see fit to determine.” These are not my words. They are the words of the court, for that is the very rule governing the case. The court solemnly adopted this canon of construction; and I am not willing to bend it or break it, to meet the exigencies of any case. And by this rule of construction, I propose to test the statute now before the court.

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 upon between the municipalities and the railway company In this statement of the power, I transfer the word considerations from, the second section to the first, because the two sections are dependent. And I am inclined to think that that word excludes mere gratuity to--the railroad company, if the words terms and conditions, of the first section, do not of themselves. But there is no word in the statute having any tendency to put a limit to the nature of the terms and conditions and considerations on which the parties may agree, except that they must go to aid in the location and construction of the road. There must be terms and conditions and considerations ; and the considerations must perhaps be in favor of the municipality. But there is nothing in the language of the statute to preclude such considerations, in a thousand different forms, as were condemned in Whiting v. Railroad Co., 25 Wis., 167, as insufficient to support such a power. In Phillips v. Albany, 28 Wis., 340, DixoN, C. J., expresses regret that this court had ever sustained municipal subscriptions to the stock of railroad companies. And the same great judge in that case refers to and affirms what he had said in Whiting v. Railroad Co., to point the distinction between stock sübscriptions and donations or other appropriations of public money to railroad companies.

“ 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-guage of tbe court, for it was the very poiut of decision, And the doctrine of Phillips v. Albany, and incidentally of Whiting v. Railroad Co., is again affirmed by Mr. Justice Cole, speaking for the court, in Lawson v. Railway Co., supra.

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 mast both be valid. A single provision in a statute cannot be constitutional or unconstitutional, in different cases, merely because it is put to different uses. It is constitutional or unconstitutional upon its construction, on its face, before it is put to any use, and independent of any use to which it may be put.

- 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 common law or on previous judicial decisions; by taking language, not in its natural sense, but in some established conventional sense. I do not quarrel with the principle; I only deny its effect, as claimed. Statutes of this state are not framed in view of the common law as it prevails in Michigan, New York or elsewhe.re, or of judicial decisions there. They can take aid only from the common law as it prevails here, from judicial decisions made here only. And decisions of this court, with which the legislature is presumed to have been acquainted, with which it was probably in fact acquainted, gave interpretation, long prior to the passage of this statute, to the words, terms and conditions, in their natural and unlimited sense, which is conceded to be fatal to it.

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 were well or ill decided, it does not purport to disturb Hutchinson v. Lord or Keep v. Sanderson, but affirms them by implication. It is true that the chief justice, who delivers the opinion of the court, comments with approval on Kellogg v. Slauson and Nye v. Van Huson, supra. Bat that is merely his own approval of those cases, not necessary to the decision of the court, not expressly dissenting from Hutchinson v. Lord and Keep v. Sanderson. And the second report of Keep v. Sanderson, 12 Wis., 352, puts the authority of those cases beyond question. The decision is unanimous, and shows not only the adherence of the court, but the adherence of the chief justice himself, notwithstanding his personal approval of the blew York and Michigan cases, to the rule in Hutchinson v. Lord and Keep v. Sanderson. And the late Mr. Justice Paine, who delivered the. opinion of the court, says that Norton v. Kearney was not intended to overrule, and did not overrule, Hutchinson v. Lord or Keep v. Sanderson; the court adhering to the construction there given to the phrase, terms and conditions, as not confined to lawful terms or conditions.

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 of the railroad company, but also express power to levy taxes and issue bonds for the purchase of right of way and depot grounds, which would naturally go, not to the railroad company, but to the vendors. I understand this to be conceded on the argument by the learned counsel for the railroad company. But he argued that the purchase of right of way and depot grounds, by the municipalities, with public money, for the use of the railroad, does not imply a conveyance of them by the municipality to the railroad company, the title remaining in the municipality, and the use in the railroad company; and that; therefore, it would not be a gift. It would be a gift of the use in perpetuity, if not of the fee; would be a gift for a private purpose; and would be equally within the condemnation of Whiting v. Railroad Co. It is only by municipal subscription to the stock that a railroad can become a public work to support taxation or the payment of public money.

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, though., made at different times, ór even expired, and not referring to each other, they shall he taken and construed together as one system, and as explanatory of each other.’ And in various other cases before him, Lord Mansfield applied this doctrine to the laws concerning church leases, bankrupts, and the poor.” Sedgwick on Statutes, 209.

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.

Sec. 7 of the statute is claimed to limit .the power to. an exchange of municipal bonds for stock, bonds or other securities of the railroad company. I cannot think so.

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 the terms and conditions are of like scope; and that the agreement itself, authorized by the statute, between the municipality and the railroad company, is, as its terms import, such as an individual might make. I owe great deference to the majority of the court; hut I cannot see how any one can read the statute and put any limit upon the phrase, terms and conditions, except that it shall be founded on municipal aid to the railroad company, in any manner that may he agreed on; any limit against the construction of the words in Hutchinson v. Lord and Keep v. Sanderson.

"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.