| Wis. | Jun 21, 1900
Several questions are presented by the record in this case, but we shall consider only one of them, for the reason that the view which we feel compelled to take of that question renders it unnecessary, and even improper, to ■discuss the others. The question so presented, and which will be considered, is whether, under sec. 1820, S. & B. Ann. Stats. (now sec. 1820, Stats. 1898), a railroad corporation for the conveyance of persons only can be legally formed. If this question must be answered in the negative, then there was no jurisdiction to entertain the attempted condemnation proceedings, because the petitioner was formed for the sole purpose of conveying persons. We entertain no doubt that ■this question must be so answered.
Sec. 1820 provides that: “ Any number of persons not less than five may form á corporation for the purpose of constructing, maintaining and operating a railroad for public use in the conveyance of persons or property ... by making articles of organization in which shall be stated: ■(1) The name of the corporation; (2) the place from and to which such railroad is to be constructed or maintained and -operated as the case may be,” and certain other details as to the length, location, capital stock, and number of directors •of the corporation, which are unnecessary to be stated at length. ' Such articles are required to be filed with the secretary of state, and thereupon a patent is to be issued by the governor, upon the issuance of which the organization becomes a corporation, with the powers and privileges of railroad corporations under the provisions of ch. 87, S. & B. Ann. Stats. (now ch. 87, Stats. 1898). Sec. 1828 of such •chapter grants to all corporations so formed full powers of ^condemnations of lands, as well as the power to cross and
The argument in favor of the petitioner is that sec. 1820,, by its words, gives the right to organize a railroad corporation for the purpose of conveying “ persons or property,”' and that the natural meaning of this language is that it may be organized for either purpose alone, and that, if it was intended that both persons and property must be carried by every corporation organized under the section, the language should have been in the conjunctive, viz. persons and property. Wore there no other provisions bearing upon the subject in the statute, this argument would be quite strong; but when we come to consider the duties which the legislature, in the same chapter, has imposed upon railroad corporations formed under it, such a construction becomes plainly impossible. Thus, by sec. 1799, S. & B. Ann. Stats., “ every railroad corporation ” is required to receive all grain offered to it for shipment, give a bill of lading therefor, and transport the same; by sec. 1799a, “every railroad corporation ” is required to receive and transport live stock; by sec. 1800, it is required, under certain conditions, to transport firewood; and by sec. 1798, “every railroad corporation” is required,, upon reasonable notice, to furnish cars to any person applying therefor, for the transportation of freight, and to transport the same with reasonable dispatch, and provide suitable-facilities for the receiving and delivery of the same at its. stations. All these provisions, and other provisions in the-same chapter with regard to fences, cattle guards, and other-police regulations, are made, by their terms, to apply to every railroad corporation organized under sec. 1820. Again, in enumerating the corporate powers of such a corporation,, subd. 7 of sec. 1828 provides that every such corporation shall have power “to take and convey persons or property
A review of all these provisions leaves no doubt in the mind that the legislative intent was that a railroad corporation formed under ch. 87 was to be carrier of both freight and passengers, and that, when it was said that a corporation might be formed for the purpose of carrying persons or property, it was not meant that it might limit itself to the carriage of persons only or property only, but that it might carry either persons or property as the occasion arose.
This view is further strengthened by consideration of the fact that, by subsequent provisions of the statute (secs. 1862, 1863, S. & B. Ann. Stats.), street railways are differentiated from general railroad corporations, and required to be organized under the general corporation law, and not under ch. 87, and are authorized, under certain restrictions and limitations, and upon obtaining authority from local municipalities, to lay their tracks upon the streets of municipal corporations and the highways of adjoining towns. Furthermore, it appears that, by ch. 251 of the Laws of 1897 (sec. 1863a, Stats. 1898), such street-railway corporations were given the right of eminent domain, excepting, however, that no power was given to lay their tracks across the tracks of a steam-railway company. These provisions seem to make it clear that the railroad corporation authorized by sec. 1820 was intended to be a general railroad corporation for the carriage of passengers and freight,— a common carrier in its fullest sense,— and to it were given the fullest provisions for condemnation of lands, as compensation for the great public duties imposed upon and assumed by it, and that street-railroad corporations, for the carriage of passengers, were intended to be a separate class of carriers, with limited duties, and correspondingly limited provisions and powers.
Having thus reached the conclusion that sec. 1820 does-not authorize the formation of a railroad corporation for the-purpose of carrying persons only, and such being the avowed purpose of the organization of the petitioner, it necessarily follows that it cannot maintain this proceeding.
By the Court.— Judgment reversed, and action remanded with directions to dismiss the condemnation proceedings.