| U.S. Circuit Court for the District of Western Wisconsin | Jul 10, 1889
after stating the facts in the foregoing language, delivered the opinion of the court.
It will he seen from the above statement that the grant in the eighth section of the act of the Wisconsin legislature of March 4, 1874, embraced so much of the lands granted by the acts of congress of June 3, 1856, and May 5, 1864, as were applicable to the construction of the part of the road of the Portgage Company “lying between the point of intersection of thb branches of said grants, as fixed by the surveys and maps on file in the land-office at Washington, and the west end of Lake Superior,” a distance of about 65 miles. That is the road to which this suit relates. According to the most liberal construction of the act of March 4, 1874, and that of March 16, 1878, the time limited for the completion of that road expired, at least, in May, 1882, eight years after the railway company filed its bond, as required by the ninth section of the act of 1874. It is conceded that the Portage Company never completed its land-grant division; nor did it ever construct any part of the road from Genoa northerly, as required by the act of 1874. The bill alleges that the Portage Company broke down in the monetary panic of 1873-74, under a large load of debts and embarrassments, and lay dormant until late in the year 1880, when its stockholders employed one Gaylord to find parties able and disposed to revive it and put it on the way of success; that the work of its rehabilitation had so far progressed that in the fall of 1881, and early"in 1882, the company borrowed large sums of money, and expended them in pushing the construction of the land-grant division in which it was interested; that, on the 19th of January, 1882, more than one-half of the substructure of that division had been completed; that at the time last named more than. 1,600 men were at work upon it, and its construction, in ample time to lay the rails and complete the division before May-5, 1882, was assured. It is further alleged that the Portage Company would have completed its land-graht road but for the following causes: (1) The passage by the state legislature of the act of February 16, 1882, revoking and annulling the grant contained in the act of March 4, 1874, which destroyed the credit of the company while actively engaged, under many disadvantages, in the construction of its road. (2).That the Omaha Company, its agents and emissaries, interfered with and defeated the efforts of the Portage Company to complete its road within the required time.
Although the act of June 3, 1856, provided that if the.roads therein named were not completed within 10 years no further sales should
The questions to which the attention of the court has been principally directed relate, more or loss, to the act of February 10, 1882, revoking and annulling the grant to the Portgago Company. The main contention of that company is that the grant of 1874, the acceptance thereof, and the bond given for the performance of the condition as to the construction of the land-grant division, constituted a contract, entitling it to earn the lands by completing the 65 miles of railway, to the west end of Lake Superior, by May 5, 1882, without opposition or hindrance on the part of the state; consequently, it is argued, the forfeiture declared by the act of 1882 impaired the obligation of that contract, and was unconstitutional and void.
On the part of the Omaha Company it is contended that one of the conditions of the grant to the Portage Company was that it would construct and put in operation its road from Genoa northerly at the rate of 20 miles each year; that no part of that road had been constructed when the act of 1882 was passed; and that by reason of such default the state had the right to withdraw the grant from the latter company without regard to what had or had not been done towards the construe
It is also contended by the Omaha Company that the grant to the Portage Company was beyond the power of the state to make; that the mode in which the state disposed of the lands to the latter company was inconsistent with that prescribed in the act of congress,—that is, that the state had no authority, in advance of the completion of the road, to dispose of the land, by sale, conveyance, or otherwise, beyond 120 sections, or to make any additional contract in respect to their disposition. To this the plaintiff replies that the act of 1864, by necessary implication, permitted the state to dispose of the lands, subject to the conditions of the grant, as to the time when the absolute title should pass from the state to the corporation earning them, and as to the time within which the road should be completed. Such, it is claimed, was all that was done by the act of 1874.
As will be seen from the views hereafter expressed, touching other questions, it is not necessary to decide whether the eighth section of the act of 1874 made the construction by the Portage Company of its road from Genoa northerly a condition of the grant to it of these lands, or whether such a condition could have been legally imposed by the state. The court is inclined to the opinion that, if the Portage Company had duly performed the condition prescribed as to the completion of its land-grant division, its right to the lands applicable to that division, and expressly set apart to aid in its construction, would not have been affected by its failure to construct the Genoa branch. But the decision will not be placed upon that interpretation of the legislation in question.
Nor will it be necessary to determine the other questions above stated, nor the question as to the validity of the revocation contained in the act of February 16, 1882; for if it be assumed that such revocation was a -nullity, as impairing the obligation of the alleged contract between the Portage Company and the state, especially because made before the expiration of the period limited for the completion of its road, and while the company was engaged in constructing it; if the mode in which the state disposed of the lands to the Portage Company be conceded to have been consistent with.the acts of congress; and if the authority of that company to mortgage the lands in order to raise money for the construction of the road be admitted,—still there remain, in the way of granting the relief sought, these stubborn, indisputable facts:
First, that no corporation could acquire, and therefore could not pass, an interest in the lands, except subject to the condition prescribed in the act of the state legislature as to the time within which the land-grant
Second, that the road was not constructed or completed within the time prescribed by the acts of March 4,1874, and March 16, 1878.
Third, that after the expiration of that period the revocation, annulr ment, and resumption declared by the act of February 16, 1882, and the grant in the same act to the Omaha Company, were in all things confirmed by the act of March 5, 1883, which, besides, repealed all previous acts interfering with or in any manner conflicting with such act of confirmation.
If the act of February 16,1882, was a valid exercise of power by the legislature, that, plainly, is an end of this branch of the case; butif it was unconstitutional and void, upon any ground whatever, its passage did not in a legal sense deprive the Portage Company of the right to proceed with the work of construction, and by completing the road within the required time become entitled to receive patents, or to compel any corporation or persons to whom patents were wrongfully issued to surrender the title. The validity and effect of the confirmatory act of March 5,1883, does not depend upon the validity of the act of February 16, 1882; for, if the latter act was void, it was clearly within the power of the legislature, by the act of 1883,-—neither the road, nor any 20 continuous miles thereof, having at its date been completed by the Portage Company,—to withdraw or annul the grant to that company, and to make a new grant of the lands to another corporation. The revocation in the act of March 5, 1883, of the grant to the Portage Company, accompanied by a confirmation, in the same act, of the grant of the same lands to the Omaha Company, was equivalent to a revocation, made for the first time on that day, and to an affirmative grant, then, for the first time, to that company. The passage by the legislature, in 1882, of an act that was void did not prevent it from passing a valid act in 1883, touching the same subject. In Strother v. Lucas, 12 Pet. 454, it was said:
“That a grant may be made by a law, as well as. a patent pursuant to a law, is undoubted, (Fletcher v. Peck, 6 Cranch, 128;) and a confirmation by a law is as fully, to all intents and purposes, a grant as if it contained in terms a grant- de novo. ”
See, also, Field v. Seabury, 19 How. 323" court="SCOTUS" date_filed="1857-02-19" href="https://app.midpage.ai/document/field-v-seabury-4022763?utm_source=webapp" opinion_id="4022763">19 How. 323, 334; Langdeau v. Hanes, 21 Wall. 521" court="SCOTUS" date_filed="1875-02-15" href="https://app.midpage.ai/document/langdeau-v-hanes-89036?utm_source=webapp" opinion_id="89036">21 Wall. 521, 530; Slidell v. Grandjean, 111 U.S. 412" court="SCOTUS" date_filed="1884-03-03" href="https://app.midpage.ai/document/slidell-v-grandjean-91126?utm_source=webapp" opinion_id="91126">111 U. S. 412, 439, 4 Sup. Ct. Rep. 475; Whitney v. Morrow, 112 U.S. 693" court="SCOTUS" date_filed="1885-01-05" href="https://app.midpage.ai/document/whitney-v-morrow-91244?utm_source=webapp" opinion_id="91244">112 U. S. 693, 695, 5 Sup. Ct. Rep. 333.
It results from what has been said that, unless restrained by some legal obligation or contract from revoking the grant to the Portage Company, after the expiration of the time limited for the completion of the road to the west end of Lake Superior, the power of the state to pass the act of March 5,1883, cannot be questioned. Were the hands of the state tied by any such obligation or contract? It has already been said that the mere revocation of February 16, 1882, if invalid, did not put the state under any legal obligation to forbear the exercise of any power it had
Assuming that the completion of the road, within the time limited, was rendered impossible by the act annulling the grant made to the Portage Company, it is contended that the case comes within the familiar rule that “where a condition subsequent be possible when made, and becomes impossible by act of God or the king's enemy, or the law, or the grantor, the estate, having once vested, is not thereby divested by the failure, but becomes absolute;” citing Co. Litt. 206a, 206b; 4 Kent, Comm. 130; Davis v. Gray, 16 Wall. 230, 231. This rule cannot be applied to the present case. It is not to be disputed that the revocation of the grant to the Portage Company had an injurious effect upon its credit. But, in a legal sense, such revocation by an unconstitutional, void act of legislation—which the plaintiff affirms the act of February 16, 1882, to be—cannot be said to have made impossible the performance of the condition upon which the company’s title to the lands depended. The attempted revocation by the legislature, in 1882, and the loss by the company of credit in financial circles, do not, in law, hold the relation of cause and effect. The contrary view is not sustained by Davis v. Gray, 16 Wall. 203" court="SCOTUS" date_filed="1873-04-15" href="https://app.midpage.ai/document/davis-v-gray-88673?utm_source=webapp" opinion_id="88673">16 Wall. 203, 230. While the court there recognized the rule excusing the performance of a condition subsequent where performance was rendered impossible by the act of the law or of the grantor, it was alleged in the bill, and admitted by the demurrer, that the state, by plunging her people into civil war, had herself prevented the railroad company from earning the grant of lands made in aid of the construction of its road. A condition of war, it was conceded, wholly precluded the completion of the road. But, even in that case, performance within a reasonable time was held to be essential to any claim to have the benefit of the grant. Here there has not been performance by the Portage Company in respect to any part of its land-grant division. If the act of 1882 was void, and if, despite its passage, the Portage Company had completed the road within the required time, it would not be disputed by the plaintiff that, as between the company and the state, or any other grantee of the state, the equitable title to lands would have been in that company. Its misfortune—assuming the representations as to its general financial condition to be true—was, that it had no credit of consequence except such as it got from the state’s grant of lands; a circumstance that cannot control the determination of the question whether the act of 1882, in a legal sense, rendered it impossible to complete the road in time. If this be not so, it would follow that the act of 1882 would excuse or not excuse the failure of the Portage Company to complete the road within the time as the evidence was the one way or the other touching its financial ability to have done so, apart from the credit given by the grant of the lands in dispute. But the rule invoked by the plaintiff surely does not rest upon sucha shifting, foundation. Within that rule the impossibility to perform a condition subsequent is either one arising from some obstacle interposed by the grantor, actually precluding or preventing performance by the grantee, or one that en
It remains to consider other aspects of the ease that have been presented with marked ability by the counsel for the plaintiff. It is contended, in substance, that the forfeiture of the land grant was caused by false representations made to the legislature by the Omaha Company, which desired tho transfer of the grant to itself to aid in the construction of its own road, and that that company, by fictitious suits, and by corruptly conspiring with officers of the Portage Company, wrongfully and fraudulently prevented the latter company from performing the condition in respect to the time within which the road was to be completed. Consequently, tho lands and their proceeds should be subjected by a court of equity to tho debts of the Portage Company, secured by its land mortgage. The principal allegation of the bill as to what tho Omaha Company did is:
“Furthermore, it, and at its instance others employed by it, and especially tho said A. A. Jackson and O. J. Barnes, who were well known as officers of the Portage Company, and understood to he authorized to speak in its behalf, falsely represented to members of said legislature that the Portage Company had made no substantial progress towards the construction of said land-grant division, and never bad any considerable number of men at work thereon, and was wholly without means or credit to prosecute said work; that it bad at last voluntarily and finally abandoned all attempt to construct the saino, and that it was willing to have the grant to it forfeited and given to the Omaha Company; whereupon, the legislature of Wisconsin, relying on these false representations, and without inquiry or hearing, hurriedly passed the act of February 1(5, 1882, above named, to forfeit the said land grant of the Portage Company and confer it on the Omaha Company.”
Undoubtedly the Omaha Company was both willing and anxious that this land grant should he wrested from tho Portage Company and transferred to itself, and to effect that end it appeared by its agents before legislative committees for the purpose of showing that the Portage Company did not have the means or credit necessary to construct, and never would construct, the road in question within the time fixed; and it may be assumed, for the purposes of this case, that the agents of the Omaha Company made, representations as to the condition of the other company that were not in all respects consistent with the truth or with fair dealing. Still the question arises, how is a judicial tribunal to ascertain the extent to which the action of the legislative department in revoking this grant was controlled or influenced by representations made to its members by the Omaha Company about the other company? Can the courts, in any case, assume that tho legislature was not fully informed when it passed a statute relating to public objects, as to every fact essential to an intelligent determination of the matters to which that statute relates? Must it not be conclusively presumed that in disposing of lands held in
These questions are all answered in numerous adjudged cases, the leading one of which is Fletcher v. Peck, 6 Cranch, 87" court="SCOTUS" date_filed="1810-03-16" href="https://app.midpage.ai/document/fletcher-v-peck-84935?utm_source=webapp" opinion_id="84935">6 Cranch, 87, 129, 130. That was an action for breach of certain covenants in a deed made by Peck for lands embraced in a purchase by Gunn and others from the state of Georgia, under an act passed by the legislature of that state. One of the covenants alleged to have been broken was that all the title the state ever had in the premises had been legally conveyed to Peck, the grantor. It was assigned, in substance, as a breach of that covenant that the act there in question was a nullity, and so the title of the state did not pass to Peck, because its passage was procured by corruption and undue influence used by the original grantees from the state upon members of the legislature. Chief Justice Marshall, speaking for the court, said:
“That corruption should find its way into the government of our infant republics, and contaminate the very source of legislation, or that impure motives should contribute to the passage of a law, or the formation of a legislative contract, are circumstances most deeply to be deplored. How far a court of justice would in any case be competent, on proceedings instituted by the •state itself, to vacate a contract thus formed, and to annul rights acquired under that contract by third persons having no notice of the improper means by which it was obtained, is a question winch the court would approach with much circumspection. It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements operating on members of the supreme sovereign power of the state, to the formation of a contract by that power, are examinable in a court of justice. If the principle be conceded that an act of the supreme sovereign power might be declared null by a court, in consequence of the means which procured it, still would there be much difficulty in saying to what extent those means must be applied to produce this effect? Must it be direct corruption, or would interest or undue influence of any kind be sufficient? Must the vitiating cause operate on a majority, or on what number of the members? Would the act be null, whatever might be the wish of the nation, or would its obligation or nullity depend upon the public sentiment? If the majority of the legislature be corrupted, it may well be doubted whether it be within the province of the judiciary to control their conduct; and, if less than a majority act from impure motives, the principle by which judicial interference would be regulated is not clearly discerned. * * * If the title be plainly deduced from a legislative act, which the legislature might constitutionally pass, if the act be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another, founded on the allegation that the act is a nullity, in consequence of the impure motives which influenced certain members of the legislature which passed the law. ”
It is true that there is no suggestion in the present case that the act of revocation of February 16, 1882, was procured by bribery or corruption practiced upon members of the Wisconsin legislature. But the charge is that that body was induced by false representations, made by the agents of the Omaha Company, to do what they would not otherwise have done. This difference in the facts does not make the princi
“We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the constitution.”
In Doyle v. Insurance Co., 94 U. S. 541:
“If the act done by the state is legal,—is notin violation of tho constitution or laws of the United States,—-it is quite out of the power of any court to inquire what was the intention of those who enacted the law.”
So. in Soon Hing v. Crowley, 113 U.S. 703" court="SCOTUS" date_filed="1885-03-16" href="https://app.midpage.ai/document/soon-hing-v-crowley-91330?utm_source=webapp" opinion_id="91330">113 U. S. 703, 704, 710, 5 Sup. Ct. Rep. 730:
“The rule is general, with reference to the enactments of all legislative bodies, that the courts cannot inquire info the motives of tho legislators in passing them, exeepfc as they may be disclosed on the face of the acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile.”
It was well said by the supreme court of Michigan, in Plank-Road Co. v. Woodhull, 25 Mich. 103:
“The legislature will not only choose its own mode of collecting information to guide its legislative discretion, but from due courtesy to a co-ordinate department of the government we must assume that those methods were the suitable and proper ones, and that they led to correct results; and, if the records show no investigation, we must still presume the proper information was obtained, for we must not suppose the legislature to have acted improperly, unadvisedly, or from any other than public motives, under any circumstances, when acting within the limits of its authority.”
To the same general effect arc many other cases. Aldridge v. Williams, 3 How. 24; Maynard v. Hill, 125 U.S. 190" court="SCOTUS" date_filed="1888-03-19" href="https://app.midpage.ai/document/maynard-v-hill-92187?utm_source=webapp" opinion_id="92187">125 U. S. 190, 209, 8 Sup. Ct. Rep. 723; Johnson v. Higgins, 3 Metc. (Ky.) 566, 576; Railway Co. v. Cooper, 33 Pa. St. 278, 283; Stark v. McGowen, 1 Nott & McC. 387, 400; People v. Flagg, 46 N. Y. 405; Wright v. Defrees, 8 Ind. 298" court="Ind." date_filed="1856-12-08" href="https://app.midpage.ai/document/wright-v-defrees-7033289?utm_source=webapp" opinion_id="7033289">8 Ind. 298, 302; Jones v. Jones, 12 Pa. St. 350, 357.
For the reasons stated, evidence as to the falsity or truth of representations made by the Omaha Company, or its agents, to the legislature, or to legislative committees, in respect either of this land grant or of the Portage Company, as well as evidence as to any efforts by the Omaha Company to bring about the revocation of the grant made
What has been said disposes of the suggestion that the dispersion of the force employed by the Portage Company in the early part of the year-1882 in the construction of its road, the suspension of the work of construction, and its inability to raise the necessary funds for the completion of the road within the time stipulated, was the result of the machinations of agents of the Omaha Company, acting by its authority, and of the corrupt conspiring by those agents with officers of the Portage Company, whereby those officers neglected to do towards the timely completion of the road what, in fidelity to their employers, they might have done. Whether this arraignment of the Omaha Company is justified by the evidence, or whether t'he Portage Company could, in its weak financial condition in 1882, have completed the road within the required time, if its plans had not been interfered with, in the manner stated, it is not necessary to determine; for, as already indicated, if all that is-said in respect to the conduct of the Omaha Company were clearly established,, the settled principles of law forbid the court from assuming that the legislative department of the state, when it passed the act of 1882, as well as the confirmatory act of 1883, was not in possession of every fact affecting the justice of such legislation. These principles cannot be disregarded in order to remedy the hardships of particular cases. If each member of the legislature was aware when that act was passed of everything which it is alleged was done by the Omaha Company in regard to this land grant and its rival company, and yet in discharge of what it deemed a public duty, and in order to secure the speedy completion of a public highway, supposed to be imperatively required by the interests of their constituents, the legislature passed the confirmatory act of 1883, and thereby selected the beneficiary of the grant made by congress in aid of the construction of that highway, the conduct of the
It is further said in behalf of the plaintiff that the Omaha Company became, as early as January and February, 1882, the owner of every share of the capital stock of the Portage Company, and of a large part of its bonded and floating indebtedness; that the former company built a road from Mud Lake to Superior City, parallel to and a few yards from the half-graded line of the latter company; and that the road so built was such an one as was described in the acts of congress of 1856 and 1864. Upon those facts the plaintiffs rest the contention that as that road was constructed by a corporation which was the sole stockholder and a principal creditor of the Portage Company, and as the law avoids forfeitures where practicable, the condition imposed by the state may be regarded as having been duly performed, within the rule that “any one who is interested in a condition may perform it, and and when performed, it is gone forever;” citing 2 Crabb, Real Prop. 815; 2 Washb. Real Prop. (2d Ed.) 12, and other authorities.
The court is unable to assent to this view, for the reason, if there were no other, that what was done by the Omaha Company towards the construction of its road to Superior City was not done by it as a stockholder and creditor of the Portage Company. It did not elect or intend in that capacity to perform the condition imposed by the state upon the latter company. The record conclusively establishes the fact that in constructing the road to the west end of Lake Superior the Omaha Company proceeded under its own charter, and represented its own stockholders, and not the stockholders of the other company. It built its otvn branch road, and did not complete the road commenced by the Portage Company. It was so understood by the plaintiff, for it alleges in the bill that “in the year 1882 the Omaha Company constructed its branch- to Superior City, along-sido of the partially constructed line of the Portage Company, and has ever since operated the sanie.” And this is consistent with the second section of the act of February 16, 1882, which made the grant to the Omaha Company upon the express condition that it would continuously proceed with the construction of the road then “in part constructed by it between said point of intersection and the west end of Lake Superior,” and complete it on or before December 1, 1882. It is impossible to suppose that the Omaha Company ever inte2ided to perform the condition imposed upon the Portage Company in reference to the latter’s road. It performed the condition imposed in the act granting these lands in aid of the construe
Many other questions have been discussed by the counsel of the respective parties, about which the court forbears any expression of opinion. Their determination is rendered unnecessary by the conclusions reached upon the principal points. The bill must be dismissed for want of equity, and with costs to the defendants. It is so ordered.