37 Wis. 168 | Wis. | 1875
There being no bill of exceptions in this case, we
It is alleged in the complaint, that since the election of October, 1871 (which authorized the officers of the town to make the subscription to the stock of the company), the Milwaukee, Manitowoc & Green Bay Railroad Company, without the consent or knowledge of the defendant town, has materially enlarged and extended the route which it will assume and undertake to construct and operate, by the purchase, consolidation, or by the acquisition in some manner, of the rights and franchises of the Appleton & New London Railway Company pertaining to that part of the line of the latter company extending from Manitowoc to Appleton, and proposes and intends to construct said line so acquired, being about forty miles in length, in addition to the lines which it was authorized to construct and operate by its charter at the time of the election and subscription. This allegation is not denied in the answer of the town. Nor does the railroad company traverse the fact stated of the acquisition or purchase.of the Appleton branch, but, as a legal conclusion, denies that it has done anything, by change of name, extension of road, or purchase of another line, which increases the liability of the town or materially affects its rights. It is obvious that this is no denial of the act of purchase without the consent of the town, but tenders an issue upon a mere question of law. For the purposes of this case, then, it must be assumed, that the fact stated in the complaint is true; and we are to inquire as to what was the legal effect of the purchase of the Appleton road upon the liability of the town. If its effect was to exonerate the town from its liability on its subscription previously made, there can be no doubt but the
. In Kenosha, R. & R. I. R. R. Co. v. Marsh, 17 Wis., 13, Mr. Justice Paine says all the authorities concur in holding as a general rule that a radical, fundamental change in the character of the original .'enterprise releases, the stock subscriber who does not assent to the change; that, in the application of the rule many cases will be found' where the particular change made was held not of such a radical character as to exonerate the stockholder from the payment of his subscription ; but the alteration in that case was decided to have that effect. It seems to us that the. principle and reasoning of the decision in the Marsh case are strictly applicable to the one under consideration, and control as to the liability of the town. • The road authorized by the charter, and for .the construction of which the town subscribed,, was one running from the city of Milwaukee in a northerly direction to or within three quarters of a mile of the. village of Port Washington, thence to the cities of Sheboygan, Manitowoc and Green Bay. This .was the original enterprise. . But it appears that the company has acquired another road running westerly .in an entirely different direction, which it proposes to construct. If this is not an essential change in the objects of the corporation and a.diversion of its funds to another enterprise, it is difficult to imagine what would amount to such a change. The counsel for the company contends, because .no part of the original line has been abandoned, that therefore the acquisition and construction of the Appleton road is not such a change as should release the town from the payment of its subscription. It seems to us that it would be a most dangerous doctrine to receive judicial sanction, that so long as a railroad corporation did not finally abandon the construction of its original road, it might acquire and construct any number of roads running in an entirely different direction from ■ such road, providing it made a connection with them, and still hold a nonassenting
The counsel for the railway company, however, referred to the case of Nugent v. The Supervisors, 19 Wall., 241, for the purpose of showing that the town was not released from its engagement to pay its subscription on account of the purchase or
This action was commenced by service of the summons and complaint, October 31, 1871. The town filed its answer in November of the same year. Afterwards an amended complaint was filed, in which this alteration or change was set up and relied upon to invalidate the subscription. The question has suggested itself, whether the town was estopped by the admission in the answer, that it was bound to take the stock subscribed for, and to pay for the same. But we think the town is not estopped by this admission, because it appears that its answer was put in before the change was made which released it from its subscription.
Without expressing any opinion upon the other questions discussed, we think the judgment of the circuit court must be reversed, and the cause remanded with directions to grant the relief asked in the complaint.
By the Court. — It is so ordered.
A motion for a rehearing was denied.