56 Wis. 256 | Wis. | 1882
This is an amicable controversy to obtain a construction of the statutes respecting the licensing of railroads. It is urged by the attorney general, in behalf of the state treasurer, that the amount of license money to be paid by the relator for the year in question is to be determined by the aggregate number of miles of all of said several railroads operated by the relator within the state, and the aggregate-amount of the gross earnings of all of said roads, and that as such gross earnings when so taken were in excess of $3,000 per mile per annum of the number of miles so operated by
The statutes provide, in effect, that “ every railroad company, and every person operating a railroad in this state, . . . shall, on or before the 10th day of February in each year, make and return to the state treasurer ... a true statement of the gross earnings of their respective roads for the preceding calendar year, of the number of miles of road operated by each such company or person, and the gross earnings per mile per annum during such year, which statement shall be verified by the oath of the secretary and treasurer of such companies, or of the person so operating such railroad.” Sec. 1211, R. S. “Each such railroad company and each person so operating any railroad shall, on returning such statement, apply for a license to operate the railroad mentioned in such statement, and shall pay the license fee therefor provided in the next section, and thereupon shall receive from the state treasurer a license to operate such railroad for the calendar year,” etc. Sec. 1212, R. S. “ The annual license fees for the op&'ation of such railroad shall be as follows: (1)' Four per cent, of the gross earnings of all railroads . . . whose gross earnings equal or exceed $3,000 per mile per annum of operated railroad.
Thus it appears from the reading of these sections that the words “ operated,” “ operate,” and “ operating ” are the controlling words in the sections. It. is a “ license to operate the railroad.” A license is a grant of permission or authority. As used in these sections of the statute, it is permission or authority issued or granted to a corporation or individual, by or under the sanction of the sovereign power of the state, to operate one or more railroads. It is claimed on the part of the relator that it is a tax or burden upon the particular road, not upon the owner or operator, and that the product of the operation of the road is resorted to merely to fix the value of the road, and thus measure the extent of the burden. It is claimed that the gross earnings of the roads purchased have not been increased since the purchase, and that since the law on the subject has not been changed, the amount of such tax or burden should not be increased merely because those roads have been operated by the relator instead of being operated by the corporations under which they were respectively constructed. ■ The argument is plausible. It was presented with great force, and a variety of illustrations, well calculated to impress the court with the inequality of increasing the price of the license merely because it is granted to A. instead of B. But whether it has such effect, or not depends somewhat upon the circumstances. Suppose’ the gross earnings of the Chicago, Milwaukee & St. Paul Railway were just $3,000 per mile, while the gross earnings of the other roads named should remain just what they were in 1881, then, manifestly, the rule contended for by the
While these considerations of advantage and disadvantage naturally suggest themselves to any one analyzing these sections of' the statutes, yet they are not necessarily controlling upon the court. The propriety and policy of the statute were for the legislature. We are simply to ascertain and declare the intention of the legislature. Manifestly that intention was not to put a tax or burden upon any railroad that is idle, nor upon the owner of such a railroad. To come within the provisions of the statute, the railroad must be operated by some corporation or person. The thing to be paid for is the legal right or privilege to operate one or more railroads, or some part of a railroad. This right or privilege does not exist by mere ownership. It is not implied from the mere fact that a corporation has been chartered and organized, and a railroad constructed by such corporation. True, the assent of the owner must be acquired, but still with such assent the right or privilege remains in abeyance until purchased of the state in the manner prescribed. It is a pecuniary exaction as a condition precedent to the exercise of a right otherwise perfect. The amount of the exaction is measured
The statute nowhere provides that the same person or corporation may obtain several independent licenses to operate separate and independent railroads, and pay for each according to the gross earnings thereof and the number of miles operated. Had such been the purpose of the legislature, it is fair to presume that they would have so expressed themselves. On the contrary, sec. 1833, B. S., gave the right of consolidation to such railroads as could respectively be lawfully connected and operated together to constitute one continuous main line, with or without branches. It also gave a railroad company the right to lease or purchase another railroad whenever their respective railroads could he lawfully connected and operated together so as to ■ constitute one continuous main line, with or without branches. But it expressly prohibited every railroad corporation from consolidating with, or leasing, purchasing, or in any way becoming the owner or controller of, any other railroad corporation, or any stock, franchises, rights, or property thereof, which owns or controls a parallel or competing line, to be determined by a jury. The only material change of these provisions by ch. 260, Laws of 1880, was to limit the right of leasing or purchasing to any railroad corporation whose line is wholly within this state. This amendment was changed by ch. 268, Laws of 1882, so as to give such right to “ any railroad corporation organized and existing under the laws of this state,” and then enlarged such right of one railroad company to purchase
These several provisions pretty clearly evince an intention to allow the same corporation to operate several lines of railroad, provided they are not parallel and competing lines, ■ but are capable of being connected together so as to eonsti- ■ tute one continuous main line, or when the road or roads so leased or purchased will constitute branches or feeders of the railroad of the purchasing corporation operating the same. Such being the legislative intent, it should not be frustrated by granting to such purchasing corporation a license to- operate its main line, and then separate and independent licenses to operate each of the several branches and feeders so purchased and leased, respectively, for such sums .as the gross earnings and line of such operated roads respectively might indicate. Here the relator operates, not only its main line, but the different branches and feeders named in the petition, and, in view of the language of the statutes, we are clearly of the opinion that the state treasurer was justified in refusing to issue the several licenses demanded for the money paid.
For the reasons given the demurrer to the petition for a writ of mandamus must be sustained.
By the Chart. — It is so ordered..