110 Wis. 633 | Wis. | 1901
This is an appeal from an order sustaining a demurrer to the complaint to enforce a subcontractor’s lien upon the premises described. The complaint, after alleging that during the times therein mentioned the plaintiff was a corporation located at Pittsburg, Pennsylvania, and that the defendant the Milwaukee Electric Railway & Light Company was a corporation located at Milwaukee and organized to engage and engaged in the business of operating in the city of Milwaukee a system of street railways and an electric-light and power plant, and that the defendants Warren and John Roberts were co-partners engaged in the business of civil engineers and contractors, alleges, in effect, that the electric company sells electric light and power produced at such plant, and has a contract with the city of Milwaukee for lighting certain streets therein, which contract was entered into December 15, 1895, and by its terms expires December 15, 1900; that the electric company is now engaged in carrying out and completing such contract by means of its plant and appliances “other them the new power house hereinafter men-tionedthat the electric company had, long prior to entering upon the construction of such new power house, constructed power houses in various parts of the city and. placed therein proper engines, boilers, and machinery, and has ever since operated and used, and is now operating and using, the same for the purpose of producing electricity; that the last-named power houses and appliances therein contained are amply sufficient for the purpose of supplying
The early case of Hill v. L. C. & M. R. Co. 11 Wis. 214, 221, was an action to enforce a mechanic’s lien for building a part of a brick block, which, had it been completed according to the contract, would have extended “along the whole front of the block, upon the street,” being 420 feet, and to the depth of fifty-five feet, and constituted the defendant’s depot in Milwaukee. The “ judgment was recovered by default, and was entered for a lien upon the interest of the company in the whole block 41.” On the application of the company for a modification of the judgment, it was made to appear “ that the railroad track was laid across the
“ In a representative government, where the people do not and cannot legally act in a body, where their power is delegated to others, and of necessity must be exercised by them, if exercised at all, the reason for applying the maxim is equally cogent. . . . On the ground of expediency and public convenience, this was necessary. As an attribute of sovereignty, it was equally important to be preserved.” People v. Gilbert, 18 Johns. 229.
The rule thus stated by Chief Justice Savage was, at an early day, expressly sanctioned by the supreme court of the United States, and they added that:
“The doctrine that the government should not, unless named, be bound by an act of limitations, is in accordance with that just cited from Racon, because, if bound, it would be barred of a right; and in all such cases is not to be construed to be embraced unless named, or, what would be equivalent, unless the language is such as to show clearly that such was the intent of the act. , . . The real ground is a great principle of public policy, which belongs alike to all governments, that the public interest should not be prejudiced by the negligence of public officers to whose care they are conñded.” U. S. v. Knight, 14 Pet. 315.
See, also, Dollar S. Bank v. U. S. 19 Wall. 239; U. S. v. Herron, 20 Wall. 263. As stated in one of these cases, the same principle has been decided in several of the states; and
The question recurs whether the rule applicable to municipalities applies also to y-wím-pubíic corporations. Upon that question there seems to be a diversity of opinion. 2 Jones, Liens, §§ 1318, 1618, et seq. There can be no question in this state but that electric railway corporations, as well as other railway corporations, although constructed for the private emolument of those engaged in such enterprises, are highways, which have, nevertheless, been established under the authority of law, and primarily for the convenience and benefit of the public. They both ¿ave the right of eminent domain. Sec. 13, art. I, Const.; secs. 1845-1863®, Stats. 1898. Such being the relationship between the corporation and the public, the supreme court of the United States has held that:
“ Ordinary lien laws giving to mechanics and laborers a lien on buildings, including the lot upon which they stand, or a lien upon a lot or farm or other property for work done thereon,,or for materials furnished in the construction or impair of buildings, should not be interpreted as giving a lien upon the roadway, bridges, or other property of a railroad company that may be essential in the operation and maintenance of its road for the public purposes lore which it was established.” Buncombe Co. Comm'rs v. Tommey, 115 U. S. 122.
In that case Mr. Justice Haklait, speaking for the whole court, said, in effect, that “ a different construction of the statute would enable parties having liens ” for small amounts “ to destroy a public highway, and defeat the important objects which the state intended to subserve by its construction. No such intention should be imputed to the legislature
“ Lands purchased by a railroad company beyond what are actually dedicated to corporate purposes are bound by the lien of judgments against the corporation, and are liable to be levied in execution, and sold by the sheriff, as are the lands of any other debtor; but the purchaser at such sale takes only that which is not necessary for the full enjoyment and exercise of the corporate franchise, no matter now acquired by the corporation.” Plymouth R. Co. v. Colwell, 39 Pa. St. 337.
And yet in the same case, Woodwakd, J., speaking for the court, said:
“ Though the corporation, in respect to its capital, is private, yet it was created to accomplish objects in which the public have a direct interest,.and its authority to hold lands was conferred that these objects might be worked out. They shall not be balked, therefore, by either the act of the company itself or of its creditors. Por the sake of the public, whatever is essential to the corporate functions shall be retained by the corporation.” ’ Page 339.
“ Much confusion often happens from a failure to distinguish between those franchises that are corporate in .a ¡strict legal sense and not really property of the corporation, and franchises acquired by a corporation after corporate existence commenced, that it may part with if they be assignable, or be deprived of without corporate existence being affected, and which may survive the death of the corporation.” State ex rel. Att'y Gen. v. Portage City W. Co. 107 Wis. 446.
The rule to be deduced from the best-considered cases seems to be that a railway is an entirety, and that under the general language of a statute no lien attaches to a particular section or part of the road essential to its operation and maintenance for public purposes; but that, under the general language of such statutes, a lien may be enforced against such structures and property of the corporation as are not essential to the operation and maintenance of the railway for the public purposes for which it was established. In addition to the authorities cited, see National F. & P. Works v. Oconto W. Co. 52 Fed. Rep. 43; S. C. 68 Fed. Rep. 1006; 2 Jones, Liens (2d ed.), §§ 1618, 1619; 3 Elliott, R. R. §§ 1066-1075. In one of these sections Mr. Elliott says:
“ The courts will not presume that the legislature intended •to subject the public to the annoyances and inconveniences*644 which would necessarily attend the enforcement of a mechanic’s lien against a railroad under a general mechanic’s lien law, and will not so construe it, unless such an interpretation is clearly required.” Id. § 1066.
The distinction between the cases where liens cannot be enforced against a particular structure or section of a railway, essential in its operation and maintenance for the public purposes for which it was established, and the cases where the lien may be enforced against a particular structure belonging to such corporation, but not so essential to its operation and maintenance, and hence which may be taken from the corporation without destroying or impairing its corporate franchises, has not always been observed in this court. The question is not whether the legislature may, in its wisdom, authorize the enforcement of such lien in any case, but whether the general language of our statute shall be so construed as to authorize a pro tanto destruction of the corporate functions created as an entirety, and primarily for the benefit of the public. In other words, courts are not authorized, in the construction of such general language, to repeal pro tcmto the charter of a corporation so created primarily for the public benefit, especially in violation of a well established rule of construction of such general statutes so far as public rights are concerned. Such rule was not observed in Carney v. L. C. & M. R. Co. 15 Wis. 503, and the more recent case of Purtell v. Chicago F. & B. Co. 74 Wis. 132. In the case at bar it is admitted that the defendant was engaged in carrying out and completing its contract with the city by means of its plant and appliances “ other than the new power house ” in question. In other words, it is admitted that the new power house, against which the lien is sought to be enforced, was not essential to the operation and maintenance of the defendant’s system of street railways, and an electric-light and power plant for the public purposes for which the defendant corporation was established. It follows
By the Court.— The order of the circuit court is reversed, and the cause is remanded with directions to overrule the demurrer and for further proceedings according to law.