164 Wis. 304 | Wis. | 1916
The court below found upon sufficient evidence that both, the Chicago, Milwaukee & St. Paul Railway Company and the county of Milwaukee complied with said ch. 51, Laws-1878, and built a viaduct and approaches thereto as provided in said law and maintained the same until July, 1912; that in July, 1912, the western portion of said viaduct was broken-down by the weight of a steam shovel which was being drawn across it; that thereafter said railway company removed the-broken parts of said viaduct and has since refused to replace- or maintain the same and by reason thereof said road was-rendered impassable; that the county of Milwaukee, as required by ch. 51, Laws 1878, at large expense duly raised the-grade of said road to conform to the grade of said bridge or viaduct and constructed and erected approaches to said bridge as required by said act, and at the time of the breaking of said bridge the county of Milwaukee was maintaining suitable approaches to said bridge or viaduct in accoi’dance with said ch. 51, which approaches had been maintained by said county since the construction thereof, and said county has-been ready and'willing at all times to maintain the same as required by said act; that said road has been rendered impassable and dangerous by reason of the failure of said railway company to maintain the portion of said bridge which it is required by said act to maintain; that said road is a county-highway and required to be repaired and maintained at the-expense of the county; that public safety requires that the bridge or viaduct across the right of way of said railway company through the Menomonee valley and the approaches thereto be restored and maintained in conformity with ch. 51,. Laws 1878.
Counsel for appellant relies strongly upon Milwaukee v. Railroad Comm. 162 Wis. 127, 155 N. W. 948. It was held in that ease that ch. 540, Laws 1909, operated to amend .all previous provisions on the subject in city charters, railroad charters, or general statutes of the state. There is no •conflict between ch. 540, Laws 1909, and ch. 51, Laws 1878. Nor does said ch. 51 in any manner conflict with the exclusive exercise of the jurisdiction conferred by ch. 540, Laws 1909. The repealing clause before cited only repeals conflicting provisions. Moreover, see. 4987, Stats., provides that no general provisions' of the statutes shall be construed to repeal any special acts relating to particular counties, towns, cities, or villages unless such special acts are enumerated in the acts repealed.
This court has repeatedly ruled that where there are two affirmative statutes on the same subject, one will not repeal the other if both can stand together. State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 144 Wis. 386, 395, 129 N. W. 623, and cases cited.
It is also insisted by counsel for respondents as a further •ground for affirmance that upon the passage of ch. 51, Laws 1878, a cause of action accrued in favor of Milwaukee County and every member of the public affected thereby against the railroad company to compel the maintenance of the viaduct after its erection, and that this cause of action •existing prior to the passage of ch. 540, Laws 1909 (sec.
By the Court. — Judgment affirmed.