Phillips v. Town of Albany

28 Wis. 340 | Wis. | 1871

Dixon, C. J.

We do not think any of the objections or positions taken by the plaintiffs can be sustained.

1. It is not perceived how the plaintiffs can make or maintain the objection that the law or the stock subscriptions under it are invalid because it does not appear that the railroad is to run to or near, or pass through, any of the towns authorized to aid in its construction. As a matter of fact it appears from the complaint of the plaintiffs themselves, that the proposed road is to run through the town where they reside and in which they are tax-payers, viz., the town of Albany, defendant, whose proceedings, or the proceedings of whose officers and voters, the plaintiffs seek by this action to restrain. So far as the town of Albany, the plaintiffs’ own town and the only one in which they are interested as tax-payers, is concerned, this objection is without foundation. But it may be said, as, by the proposition of the railroad company and the agreement thereupon entered into by and between the company and the officers and voters or inhabitants of the town, the subscription of the town is made dependent or contingent upon like subscriptions being made by all the other towns mentioned in the act, that the power or ability of all such other towns to subscribe • for stock, and the validity of their subscriptions when made, are involved and must be determined in this proceeding. A ready answer to this is, that if the subscription of any other town, should fail or turn out to be invalid on the ground suggested or any other, the town of Albany, by the very terms of its agreement, is absolved Rom all obligation to receive the stock or deliver its bonds. The answer avers, and it is duly verified by the chairman of the town supervisors, and the case furnishes not the slightest proof to the contrary, that the supervisors have not proposed or intended, and do not propose or intend, to execute or deliver the bonds upon any other terms or conditions, or in any other way or manner, than as specified in the proposition and agreement entered into with the railroad company. But more than this, the complaint in this case states no facts showing or tending to show that the road is not to run to, near, or through all of the towns mentioned in the act. We cannot, as we understand it, take judicial notice of such matters, or act upon any knowledge of the geography of the state, and what we might suppose the railroad company or its engineers would do in locating the road between the points named in the charter. These are facts which it is incumbent on the plaintiffs to aver and prove, if they would take advantage of them for the purpose of having the subscription declared invalid. In passing we desire to observe of the subscription, or of the agreement entered into between the officers and people of the town and the railroad company, that we regard it as most wise and judicious on the part of the supervisors, and one well calculated to guard and protect the rights and interests of the inhabitants and tax-payers of the town. If the proceeding here was to restrain the officers or authorities of the town from violating the terms of the agreement, or executing and delivering the bonds contrary to its provisions, and that fact were shown, we should have little difficulty in upholding the injunction.

2. It is said the subscription must precede the vote of the electors on the issue of the bonds. This objection depends upon the proper construction of sections two and three of chapter 278, Private and Local Laws of 1870. A most nice and literal construction of those sections might, perhaps, sustain the objection. Qui hosret in Hiera hceret in cortice. The law respects the effect and substance of the matter, and not every nicety of form and circumstance. The statute contains no words expressly declaring such intent, or from which it results by necessary implication. It is a matter of the merest inference, drawn from the order in which the provisions occur. Transpose them, so that the provision for the vote would come before that for the subscription, and there would be no ground at all for saying, that the subscription must actually be made first. The subscription without the vote is a mere nullity. It is plain that the legislature never intended that there should be a valid subscription without the vote in favor of it; and it seems to'be trifling almost with the effect and substance of the statute, to stand upon a point or objection like this. It is untenable, and must be overruled.

8. It is insisted that as the rights and franchises of the railroad company had lapsed before the passage of the act above referred to, the first section of which revives and continues in force and effect the original act of incorporation, and the acts amendatory thereof, the persons assuming to be and to act as the board of directors and officers of the company, and to represent it, are not authorized so to do, and the company is without organization, directors, or officers, so that no contract can be made with it. The act does not revive or continue the board of directors or officers, or declare that the persons then or last holdinj elected shall be deemed to be the board of directors and1 cers, nor provide for any new organization. At the time oí passage of the act, no judgment'or decree of forfeiture, or; the company had lost its corporate powers and franchisesj i been rendered; and at that time an organization or corporation ■de facto at least existed, with a board of directors and officers •claiming to act for and represent it. This was sufficient to give full and. immediate effect to the act of revival. The act must be presumed to have been, and doubtless was, passed at the instance of the de facto corporation, or of the officers and persons representing it, and was intended to restore or give to that corporation all its former legal rights and franchises. The legislature took hold of the then existing corporation, such as it was, and declared it to have all the powers and privileges which it ever had, and hence no provision for any new or further organization.

4. It is said that the act provides for the vote to be taken at an “ annual or special election,” and that the vote was taken at a “town meeting.” It is urged that the statutes make a distinction between an election and a town meeting; that they do not open and close at the same hour; and that such distinction was intended to be kept up and observed under the act. No reason is apparent, and none has been suggested, why a distinction should have been made in a case of this kind, or why the legislature should have provided for a submission at any special or annual election, and yet have refused to submit at a town meeting. We all know, as matter of experience, that voters are quite as likely to attend town meetings, where important business of the town is almost always to be transacted, as to attend general elections, except it be on some occasion of more than ordinary interest; and that there is greater probability of full attendance at a town meeting than at any special election. No reason or motive is perceived for the distinction, or why it should have been intended. Did the legislature so intend? A town meeting is an election, within the general meaning of that word. Every lawful assemblage of voters for the purpose of making choice or determining by vote or ballot, is an election. Did the legislature use the word election, in the act, intending it to apply and be understood according to its general signification; or was it used in the more restricted sense in which it sometimes occurs in the statutes? We think the more general sense of the word corresponds most fully with what must have been the intention of the legislature.

5. The fifth objection is, that the vote was void, because, being taken at a town meeting, the polls were not closed at 5 o’clock P. M., but were kept open until sundown, and votes delivered thereon until that time. This objection is answered by our remarks upon that last considered. It was proper in the vote upon the subscription to keep the polls open until sundown. That is the usual, or one of the usual forms of conducting elections, which the act prescribes shall be followed.

6. Another objection is, that the notices required by the act to be posted ten days before the election, were not posted by the town clerk or supervisors of the town in person. Those officers did not post up the notices with their own hands, but employed other persons to do so. We can hardly believe that this objection is seriously taken, but if it is, it is as seriously overruled.

7. It is further objected that the act embraces more than one subject, and also that its title is defective in not localizing the bill. Constitution, art. IV., sec. 18. The act embraces no more than one subject, and that is, building the line of the railroad named in it, or creating a corporation for that purpose and providing how it may obtain means and facilities for accomplishing it. It is all the same general subject, which is all the constitution means. An act might be passed creating or chartering a company in full, and providing for municipal subscriptions to its stock with all their details and particulars, and yet not be obnoxious to constitutional objection on this ground. And we think there is nothing in the other part of the objection, that the bill is not properly localized in the title. The act in this respect differs altogether from that under consideration in Durkee v. Janesville, 26 Wis., 697, cited and relied upon.

8. It still further might be urged, that no vote can be taken or subscription made until the road is located, and the record or survey thereof filed in the office of the register of deeds for Green county, as provided "by chapter 24, General Laws of 1870. The act under consideration was passed and approved after chapter 24 became a law. It is full and complete in its provisions, makes no reference to that chapter, and is not affected or governed by it. It is in fact inconsistent with it.

9. The ninth and last point, in substance, is, that municipal subscriptions for railroad stock, and taxation to pay the same, cannot be constitutionally authorized. However we might feel bound to regard this question, or to hold upon it, were it a new one, we are now effectually precluded from any examination of it, and such subscriptions must stand so long as the legislature sees fit to authorize them and the towns or municipalities to make them, or until the people deem it expedient to change the constitution in this particular. Enough was said in Whitney v. The Sheboygan and Fond du Lac Railroad Company and others, 25 Wis., pp. 186, 187, 209 and 210, to indicate the distinction— all that there is — between a stock subscription and a donation or other appropriation of public moneys for the use and benefit of those private railroad corporations, and also to indicate that, but for past decisions holding valid the subscription and taxation to pay it, to which decisions we were required to adhere, the majority of this court would not hesitate to declare the subscription likewise void, and the tax to pay it wholly unauthorized. "W e were constrained to this conclusion then, and have not changed our views now. But the validity of such subscriptions had been so often held both in this state and elsewhere, and such vast pecuniary interests had become involved and were dependent on the decisions upholding them, that we thought then, and think now, no stronger case for the application of the doctrine of stare decisis could be presented. It is upon this ground, and this alone, that we sustain the present subscription.

By the Court.— That part of the order appealed from by the plaintiffs is affirmed, and that part appealed from by the defendants is reversed, with costs on both appeals to be taxed against the plaintiffs.

Ltoít, J., took no part.