43 Wis. 686 | Wis. | 1878
The right of action went with the repeal of the statute which gave it. Dillon v. Linder, 36 Wis., 344; Rood v. Railway Co., ante, p. 146.
The learned counsel for the respondent, always candid as well as able, did not deny the doctrine of those cases; or express dissent from the construction given, in the latter case, to the peculiar language of sec. 13, ch. 57 of 1876.
He made a point, however, upon sec. 7 of that statute, which was not suggested in Rood v. Railway Co.. Ch. 57 of 1876, as well as ch. 273 of 1874 and ch. 334 of 1875, puts a limit to certain charges by railroad companies. And sec. 7 of the former declares that railroad companies violating that provision shall forfeit to persons paying rates in excess of it, three times the actual damage sustained, to be recovered in a civil action; that all prosecutions shall be made at the expense
It is apparent that the right of action thus given is essentially different, in this respect, from the absolute right of action given to injured parties by sec. 6 of ch. 273 of 1874, and sec. 3 of ch. 334 of 1875. But it is otherwise different. The provisions of 1874 and 1875 give the action against agents of the corporations, as well as against the corporations themselves. The provision of 1876 gives the action against the corporation only. This appears to account for the discretion given by the latter statute to the railroad commissioner, as a part of his supervising power over railroad corporations; and for the re
So the ingenious argument of the learned counsel, that the actions of the three statutes are identical, and- that the preservation of the action in the last statute operates to preserve the action given by the first, notwithstanding the repeal, appears to rest upon erroneous premises.
But were the three rights of action severally given by the three statutes identical in nature and scope, it could not well affect this judgment. The action given by each of the statutes is for violation of the provisions of that statute itself. The action given by sec. 7 of 1876 is against “ any railroad corporation who shall violate any of the provisions of this act as to extortion or unjust discrimination, or the provisions hereof establishing rates.” This is an express limitation of the right of action given to violations of the provisions of that statute only; for rates paid in excess of the new rates established by
The question here is entirely different from that arising upon the repeal of a provision and its reenactment, in the same statute. In that case, the provision repealed and the provision reenacted are identical; not like, but indistinguishable; not kindred, but the self-same. In that case, too, there is no interval of a moment, in theory or in fact, when the identical provision is not in force. The repeal and the reenactment take effect together as a single enactment; changing the place of the provision in the statute book, but not disturbing its. identity or continuous effect. The doctrine applying in. that case has no bearing on the question here. .Here the new provision and the old are not only not identical, but are essentially different. The old provision is repealed, and a new provision replaces it. It is not the repeal and reenactment of the same identical thing: but the repeal of one thing, and the enactment m yrmcipio of another thing; the substitution of a new remedy for an old one, abandoned and extinguished.
The position taken in this case is not aided by the position taken in Rood v. Railway Co., nor the position there aided by the position here. The two positions rest upon essentially different premises, and there is nothing in either to support the other. They are not unlike parallel lines, with incapacity of meeting on common ground. Judgment cannot go upon two defective grounds, each independent of the
The judgment for the repealed penalty cannot be upheld. The record will however be remitted without direction to dismiss the complaint, for the reason assigned in Rood v. Railway Co.
By the Court. — The judgment is reversed, and the cause remanded to the court below for further proceedings according to law.