State ex rel. Wausau Street Railroad v. Bancroft

148 Wis. 124 | Wis. | 1912

Timlin, J.

The statute in question is entitled “An act to amend section 1596, and to create section 1596a of the Statutes, relating to the construction and maintenance of dams in or across navigable waters, and to create sections 1596 — 1 to 1596 — 76, both inclusive, of the Statutes, relating to the granting of franchises authorizing the improvement of navigation and the development of hydraulic power created by such improvement, providing for a franchise fee therefor, and making an appropriation.”

In this opinion the sections of this act will be referred to as secs. 1596, 1596a, and by the subsection numbers 1 to 76.

Epitomized, the act in question presents a comprehensive plan by which all existing dam charters capable of repeal are repealed, and henceforward the matter of new charters for dams in navigable waters is committed to the Railroad Commission to determine the facts, issue certificates, make and enforce conditions, exercise supervision, etc. Upon the finding of the Commission that the requisite facts do not exist, a franchise is refused. Upon the Commission's finding of the existence of the requisite facts, the statute grants a franchise imposing conditions hereinafter referred to, which franchise, I in order to take effect, -must he accepted by the applicant with j its conditions. To induce or compel the holders of existing j property of this kind whose charters are repealed to come j under the act, the latter declares such" property a nuisance, for- / ■bids its use, and imposes penalties. The charters so obtained ; through the Railroad Commission are for a limited time, at i the end of which some third person, or a municipality, or the : state, is, by reason of the conditions acceded to and upon a de- j ■scribed measure of compensation, to become by condemnation 1 the owner of all such property. There are several hundred charters enacted by former legislatures of this state and of the preceding territorial government authorizing the building of dams in the navigable waters of this state in aid of ■navigation, and most of these have been accepted by construction of the required works in aid of navigation.

The pleadings present that relators are property owners whose property is threatened by this act with destruction or ■confiscation, and placed without the protection of law by ■declaration that, it is a public nuisance and the imposition of penalties for using the same. This is a private wrong calling for the interposition of equity quia timet. The pleadings also .show that all improvements to navigation recognized by former statutes as such and so recognized in the statute in question, and made in all the navigable rivers in the state within , the last sixty or seventy years and now existing, are threatened with abatement and destruction and their up-keep and use f penalized except upon conditions charged to be invalid and j ■unenforceable. This is a threatened public wrong affecting the sovereignty and prerogatives of the state and calling for redress by injunction. Att’y Gen. v. Eau Claire, 37 Wis. 400; State v. Eau Claire, 40 Wis. 533. There may be other .grounds for the exercise of original jurisdiction and other questions publici juris in the case, but the foregoing is suffi■cient. There cannot be much doubt of this as regards the defendants constituting the Railroad Commission, and as to tte other defendants tbe question is closed by State ex rel. Bolens v. Frear, post, p. 456, 134 N. W. 673, 135 N. W. 164.

We approach the grave questions involved with the utmost deference to the co-ordinate branches of government which have passed upon the same. We shall treat the enactment as a measure in aid and regulation of navigation as it purports to be, and, except where convinced beyond a reasonable doubt to the contrary, shall hold its requirements constitutional and valid. We shall not attempt to define the extent or set the limits of the reserved right of repeal contained in the constitution of this state (sec. 1, art. XI) or in a charter further than to say that such power does not authorize the confiscation or destruction of property or its taking without just compensation. It is to be construed like all constitutional provisions to harmonize with other commands and restrictions of the same instrument, and it must always yield to that paramount provision of the federal constitution which forbids the state to deprive any person of life, liberty, or property without due process of law and to the substantial equivalent of the latter in our state constitution. Sec. 9, art. I; Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128; State ex rel. Kellogg v. Currens, 111 Wis. 431, 435, 87 N. W. 561; Adirondack R. Co. v. New York, 176 U. S. 335, 20 Sup. Ct. 460; People ex rel. Schurz v. Cook, 148 U. S. 397, 13 Sup. Ct. 645; Pearsall v. G. N. R. Co. 161 U. S. 646, 16 Sup. Ct. 705; Bank of Commerce v. Tennessee, 163 U. S. 416, 16 Sup. Ct. 1113; Shields v. Ohio, 95 U. S. 319; Greenwood v. Freight Co. 105 U. S. 13; Wilmington City R. Co. v. Wilmington & B. S. R. Co. 1 Del. Ch. App. 468, 46 Atl. 12. We may now take up. for analysis the details of the act in question.

Sec. 1596 as amended extends somewhat the former statutory description of what streams are navigable, forbids obstructions therein, declares dams, bridges, or other obstruc- ■ tions maintained in violation of this section to be public nui-sauces, provides for tbeir abatement, and imposes penalties. It is general in its terms and witbin well recognized legislative power, and bas little or no connection witb wbat follows; We bold tbis section to be prospective so far as it refers to streams not theretofore witbin tbe purview of tbe section it purports to amend, and to affect only dams in sucb streams placed there after tbe amended statute went into effect. It need not be further noticed. Sec. 1596a forbids any person, etc., to “conduct or maintain or operate or use any dam or other improvements in or across” any navigable stream without having, bolding, or obtaining a franchise from tbe state authorizing tbe construction or maintenance and operation of sucb dam or improvements. Paragraph 2 of tbis section declares any dam or improvements constructed or maintained in violation of sec. 1596a. to be a public nuisance. We note tbe broad language of tbis prohibition forbidding tbe maintenance, operation, or use of either tbe dam or other improvements without a franchise. We are not left in doubt as to tbe meaning of tbe word franchise. “Franchise” as used in tbis act is there defined to mean a grant of authority under tbe provisions of tbis act, not a prior existing franchise. Sec. 5, par. 3.

“Improvements” is defined in tbe act to mean tbe dam itself and all weirs, tunnels, races, flumes, sluices, pits, locks, chutes, boat hoists, marine railways, fishways, and other structures, machines, and devices necessary or essential for tbe development of hydraulic power and for tbe generation of mechanical energy or electrical energy, or both, constructed ■witbin or made part of sucb dam or dams. Tbis word in tbe act also means sucb machines, connections, regulations, and transmission devices as may be found by tbe Railroad Commission to be necessary for tbe utilization of energy in connection witb tbe proposed improvement. It also includes all reservoir, flowage, and other rights and easements and all lands necessary and used under sucb franchise for. tbe maintenance of sucb dam or dams and tbe structures and devices above enumerated. Sec. 5, par. 6. We notice, in passing, tbe sweeping language of tbis paragraph and tbat none of tbe things there enumerated and described may be used, and tbat in tbe absence of tbe franchise under tbis act all are declared to constitute a public nuisance. It is further provided in sec. 1596a tbat either tbe construction of any such dam or “improvements” or their maintenance may be abated at tbe suit of tbe state or of any private citizen. Sec. 1 declares tbat tbe use of navigable waters for power developed under a franchise “granted under tbe provisions of tbis act” is a public use, thus attempting to give tbe use under tbe franchise tbat effect. Sees. 2, 3, and 4 are to tbe effect tbat all energy, developed or undeveloped, of tbe navigable waters of tbe state is subject to tbe control of tbe state for public good, and tbat tbe beneficial use and natural energy of tbe navigable waters of tbis state for all public uses are held by tbe state in trust for all of tbe people and tbat tbe state reserves tbe management, control, etc. It is contended by tbe relators tbat secs. 2, 3, and 4 amount to an assumption of proprietorship of tbe energy of falling water on tbe part of tbe state; but counsel for defendants, including tbe senator who introduced tbe bill in question, contend tbat no sucb meaning can be given to these sections and tbat they only assert the possession by tbe state of tbe power to regulate tbe pro- ! duction of sucb energy in and from navigable waters and tbe ' instruments of sucb production. These provisions seem fairly capable of tbe latter meaning, and under our duty to . uphold tbe law if this can be done we must give them such , meaning as is required for their support and validity. We need say no more concerning secs. 2, 3, and 4, regarding them merely as declaratory of sovereign power in a somewhat general declamatory way. Sec. 6 provides tbat every franchise granted under tbe provisions of tbis act shall be granted for the purpose of improving the navigation of navigable waters, and shall include tbe right to construct and maintain dams or improvements therein for said purpose, -or for said purpose and other lawful purposes, and shall include the right to utilize under the terms, conditions, and provisions of the act any hydraulic power created and developed by virtue of the improvements, and. every such franchise shall contain and embrace all the terms, provisions, and conditions of the act. This requirement is industriously repeated in varying forms of expression. It is found in paragraph 2 of sec. 24, which purports to extend, upon application of the owner, repealed franchises. “A franchise therefor, subject to all the terms, conditions, and provisions of this act, is hereby granted to such applicant.” It is found in sec. 28, and there appears j one of these “terms and conditions” to the effect that at the termination of any franchise granted under the provisions of this act by expiration, forfeiture, repeal, or otherwise the improvements erected, maintained, held, enjoyed, and used and^ useful in connection with the improvement, may be taken by any appropriator by condemnation proceedings, and the retir-i ing appropriator in accepting the franchise will be deemed to j have agreed that this appropriator may do so by paying just| compensation. But just compensation shall not include the full value at the time taken, but only the value at the time the franchise under this act was granted, if the riparian owned the land or the land and improvements when he applied for the franchise. Also that no allowance shall be made for - the franchise or any rights or privileges included therein. Sec. '29 provides that no franchise granted pursuant to the provisions of this act shall become effective and be in force unless within ninety days after notice from the Railroad Commission that the same has been granted -the applicant shall file with the Railroad Commission a written acceptance thereof. Sec. 30 requires as one of the terms and conditions of the act that the franchise granted thereunder shall be for a term of twenty years only, but the appropriator or successors or assigns shall have a right of continuance of the same for two further and successive terms of ten years each. Sec. 33 provides that every franchise granted under the provisions of this act is accepted, taken, and held subject to all the terms, conditions, and provisions of such franchise and of this act, and is so accepted, taken, and held in consideration of the powers, privileges, and prerogatives conferred by said franchise. Sec. 36 provides for the payment of an annual franchise fee which the acceptor must consent to. Sec. 37 provides for a forfeiture of the franchise for nonpayment. Sec. 38, that the state shall have a preferred lien, second only to the lien of taxes, to secure this franchise fee. Sec. 41 provides that every franchise granted under the provisions of this act is subject to the express condition that the state, when it shall- have the constitutional power, may at the termination of the twenty- or either ten-year period acquire by purchase, lease, or condemnation all improvements, etc., upon the same basis of valuation as a municipality. Sec. 42 provides that at the end of either such period any municipality may acquire any improvements constructed and maintained by any appropriator under such franchise, compensation for such improvements to be determined by the Railroad Commission; and then the following:

“Any appropriator by the acceptance of a franchise granted under the provisions of this act shall be deemed, by the acceptance thereof, to have agreed that any municipality or the state may acquire all dams and improvements acquired, erected, and maintained or used or useful under the franchise of said appropriator by paying just compensation therefor, and that in determining such just compensation no allowance shall be made to such appropriator for any increase in the ■value of any lands acquired or used or useful under such franchise, over and above the value of such lands at the time of the granting of such franchise, if the same were previously acquired, or' at the time of acquisition, if the same were acquired subsequent to the granting of such franchise, and that no allowance shall be made for such franchise or any rights or privileges included therein

Sec. 26 imposes a penalty of $50 per day for any exercise or attempted exercise of any power, rights, or privileges under any repealed charter. The owner of any dam who has constructed the same in aid of navigation under authority from the legislature of this state by this act which recognizes that his dam is still an aid to navigation because it offers him a charter to maintain it for that purpose, must either submit to be deprived of the use of the property described under the term “improvements” and to have this property, including the dam and the riparian land, declared a public nuisance out of the protection of the law and liable to abatement, or agree to the foregoing conditions as well as some others not specially mentioned herein. We may, however, note that by sec. 1, taken with the other sections above referred to (in addition to other concessions), the water-power proprietor by accepting •this new charter consents that his property shall become impressed with a public use. / In short, the statute in these respects is equivalent to a statute declaring the dam a public nuisance and its maintenance or use a misdemeanor, unless the owner pays to the state an annual franchise fee and surrenders his fee simple estate for a limited or terminable fee and agrees that his property be impressed with a public use and that it may be taken by an “appropriator,” by a municipality, or by the state at less than the just compensation which the constitution secures to others, and consents to all the other requirements- of the act. If he make these payments and concessions and yield up these property rights, his property will continue as it was, a lawful structure and an aid to navigation, otherwise not./

Here we may consider sec. 23.

“Every license, permit, or franchise authorizing the erection and maintenance of any dam in or across any navigable stream, heretofore granted and which by the. terms thereof or otherwise is subject to repeal, is hereby repealed, such repeal to take effect and be in force six months after the passage and publication of this act.”

In order to get the full force and effect of this we must take a glance at conditions to which it is made applicable. During the whole past life of this state and prior to its existence the policy of the legislature, truly representing public sentiment in that respect, was to freely grant charters for the erection of dams in the navigable rivers of the state in aid of navigation. The legislature granted the charter in consideration that the grantee would make the improvement in aid of navigation; the latter accepted the offer and invested thousands of dollars in making the improvement; not as a philanthropist or because he desired to expend money in aid of navigation, but in order to acquire for himself the valuable water power thus produced or increased. The legislature understood and approved this purpose and this consequence. In the judgment of the legislature the navigation was improved, and this was the consideration received by the state. A water power was created or improved, and the ownership of this was the consideration received by the grantee. Such policy was also considered essential to the settlement of the state and the development of its property resources. Dy contract with the state,, therefore, the riparian owner bought and paid for this valuable property right so far as the state had power to grant it. He had also acquired by purchase the riparian right hereinafter referred to. These two in combination caused or created the water power. These property rights so created increased in number and value until the present time when there are hundreds of such dams and millions of dollars invested therein. Manufacturing industries operated by such water powers were established, and here further investments made and rights acquired. Villages and cities sprung up and clustered around such factories. Hew riparian rights arose and vested in these landowners or lotowners abutting on the raised water above the dam, and the erstwhile overflowed land below the dam was bought, built upon, and improved; the watercourse acquired new banks and boundaries; all such conditions adjusting themselves to the improvement. These factories and their concomitant villages and cities furnished labor and a livelihood to thousands of artisans and a market for thousands of farmers. Titles and values became dependent on the continuance of the conditions thus created. In the years that elapsed those holding and acting on such beliefs invested their savings, reared and educated their children, and the latter inherited the property and pursued the honorable avocations of their parents, or by good fortune or special ability rose in some other walk of life, or entered the learned professions, or became themselves entrepreneurs and acquired and owned in whole or in part or operated the same or other similar water powers. As a result of this material progress the year 1910 found this state with two and one-third million of population, owning more than two and one-half billion dollars worth of taxable property and having two hundred fifty-eight million dollars deposited in banks and six million dollars in trust companies within the state. Under such conditions the creation and vesting of many property rights depending upon the continuance of such improvements was inevitable. Industry and self-denial were stimulated and rewarded by the acquisition of property, and the property rights of the people thus acquired secured to them by laws. Paramount among these laws was the constitutional command that private property should not be taken for public use without just compensation, and by necessary inference that it should not be taken for private use at all. There was also the command of the federal constitution, harking back to Magna Carta, that no person should be deprived of his property without due process of law or denied the equal protection of the laws. The charters granted by the state during the period referred to may be classified as follows: Eirst, those granted to natural persons and complied with by the latter, reserving no right of repeal. These, by all the authorities, constitute a contract not subject to repeal at the pleasure of the state. Second, those granted with or without such reserved, power of repeal and never accepted or complied with. These are subject to repeal or ouster by quo warranto. Third, those granted to natural persons, reserving in the charter the power of repeal, and those granted to corporations, both accepted by complying therewith in constructing the aids to navigation required. As to this third class, assuming that they are meant to he covered by sec. 23 of the act, we have not nierely a repeal but a confiscation of property, talcing all the provisions of the act together. The state still continues to use the improvement. It recognizes that it is, still an aid to navigation. The improvement performs its office of holding back the flood as before, and if it ever was a public benefit it is by the lapse of time more so at present. It is, however, declared a public nuisance, but permitted to remain and do its work, and the state offers its aid by delegation of the sovereign power of eminent domain to any third person to acquire this property from the first owner and immediately the ban is removed. That which was temporarily and nominally a public nuisance becomes again, without any change in its physical condition, a lawful structure, and it resumes its original status as an aid to navigation and entitled to the protection of the law. But the appropriator may not appear for years. There is no certainty that he or it will ever come. The first owner is to have compensation for his property only in case this appropriator turns up. In the meantime the property is put without the protection of law and its use declared a misdemeanor. Such provision for compensation is invalid within the rule of Powers v. Bears, 12 Wis. 213; Shepardson v. M. & B. R. Co. 6 Wis. 605, and cases cited in 15 Cyc. 642, note 65. We may say here, therefore, that there is no provision for compensation, because such inadequate and invalid provision is equivalent to none at all. But the act not only purports to repeal the charter but to take the property, because the state not only permits it to remain, performing its former function as an aid to navigation, but undertakes to sell or grant tbe use of it for a consideration to any third person wbo will accede to tbe state’s terms. Tbe legislature in tbe exercise of its power of regulation or police power may witbin certain limits declare wbat acts shall constitute a nuisance, but this power cannot be made a cloak for confiscation. “Tbe legislature has no right arbitrarily to declare that a nuisance which in fact is not so.” Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, and cases; Priewe v. Wis. S. L. & I. Co. 93 Wis. 534, 67 N. W. 918. Tbe legislature, therefore, has no such power over private property in tbe lawful enjoyment of some person as to declare it a nuisance and make its use a misdemeanor without providing compensation to tbe owner. Wynehamer v. People, 13 N. Y. 378 et seq. Tbe state has power in aid of navigation to regulate tbe use of tbe navigable waters and to authorize such improvements in aid of navigation, and all incorporeal riparian rights and all rights of tbe riparian owner in and to tbe bed of tbe stream are subject and subordinate to this power of tbe state. So are these rights, like all other property rights, subject to state regulation to a degree commensurate with tbe nature of tbe property, its dangerous or its semi-public character, or any other peculiar character or quality it may possess requiring greater or less regulation. All the police power of the state is applicable to such property and the enjoyment thereof. But such incorporeal riparian rights are not, as against the riparian owner, subject or subordinate to any salable or demisable right of the state, or to any claim of the state for compensation therefor, or to any grant of the state to a third person for the purpose of manufacturing or of using or selling water power. They may be taken for the latter uses when such uses are public, but only upon compensation. The improvement of navigation being in itself lawful, the riparian owner can recover for no consequential damages flowing therefrom. Black River Imp. Co. v. La Crosse B. & T. Co. 54 Wis. 659, 11 N. W. 443. But even tbe right of navigation or tbe improvement of tbe navigable waters for navigation purposes will not justify tbe taking of tbe bank without compensation to tbe owner. Cohn v. Wausau B. Co. 41 Wis. 314, 322, 2 N. W. 546; Pumpelly v. Green Bay Co. 13 Wall. 166, and cases in Eose’s Notes. Tbe questions here presented more directly relate to taking property for a private purpose without- compensation and not in aid of navigation. Tbe interest of navigation is not affected by tbe ownership of tbe resulting water power. We consider that declaring tbe property a nuisance and penalizing its use is a taking within tbe meaning of tbe constitution, and that tbe alternative provided in this act, by which the owner may escape this taking by consenting that bis private property be impressed with a public use by surrendering up to the state bis property, or some interest therein, or part of bis right to compensation, or bis ownership of tbe water power, or bis privilege to continue bis property in its advantageous condition so long as it is a lawful aid to navigation until tbe state takes it for a public use on making compensation, is but another form of taking bis property. Wilmington City R. Co. v. Wilmington & B. S. R. Co. 1 Del. Cb. App. 468, 518, 46 Atl. 12. “Sheer oppression and wrong cannot be inflicted under tbe guise of amendment or alteration.” Shields v. Ohio, 95 U. S. 319; Greenwood v. Freight Co. 105 U. S. 13. Whatever property is acquired under such a charter prior to its repeal is held under tbe same guaranties which protect other property. County of Santa Clara v. S. Pac. R. Co. 18 Fed. 385; Lothrop v. Stedman, 42 Conn. 583; Comm'rs v. Holyoke W. P. Co. 104 Mass. 446. We may also cite, without committing this court to everything contained therein, People v. O’Brien, 111 N. Y. 1. Other provisions of that act apply not only to those riparian owners who under a charter have constructed a dam, but to riparian owners who as yet have neither charter nor dam. Sec. 8 authorizes any person, firm, domestic corporation, or municipality, whether a riparian owner or not, to apply to tbe Railroad Commission for a franchise. When be makes bis application be is by par. 4 of sec. 5 tbe applicant; after be receives it be is by par. 5 of sec. 5 tbe appropriator. Tbe significance of these statutory definitions must not be overlooked, because tbe word “appropriator” is often used in other portions of tbe act, and certain rights and powers conferred upon and certain duties imposed upon tbe “appropriator.” A bearing before tbe Railroad Commission is provided. Where it appears to that body by evidence that tbe proposed improvement will result in tbe improvement of navigation, that all dams and other improvements proposed will be adequate and will not endanger health, life, or property, and that the interests of the public will be better served by the construction, etc., of such improvement, and, if its purpose be to develop hydraulic power, that the same will result in the efficient development thereof, the Railroad Commission shall so find and the applicant is entitled to a franchise. If they find the contrary he is not entitled to a franchise. Having such authority flowing from the statute, acting upon the findings of the Railroad Commission, he becomes and is an appropriator, and is subject to all the conditions hereinbefore, mentioned. This appropriator has the right of taking the-land of any riparian owner and all the appurtenances of such land and all riparian rights belonging to such land for the purpose of constructing the dam authorized by statute. Upon this person receiving this franchise is conferred, by sec. 7, the right to utilize for any lawful purpose any hydraulic power-created or developed by virtue of any improvement authorized by any franchise. Any person not a riparian owner may also apply for a franchise where another person whose charter or license has been repealed by the act fails to apply within the time specified in the act, and in either case either of these persons.may exercise the power of eminent domain and condemn the riparian’s property with all its appurtenances but without improvements in the first case, and with its improvements and appurtenances in tbe second. Secs. 25, 28, and 46. This person so authorized to invoke the state power of eminent domain and institute and carry out ,the condemnation proceedings, should he develop hydraulic power under the franchise, is authorized and required to lease or dispose of such power and any electrical energy derived therefrom to the public without discrimination and at a reasonable rate; “however, said appropriator may retain and use as much of said hydraulic power and electrical energy as shall be reasonably necessary for its own purpose or purposes.” Sec. 51. If public convenience and necessity require it he shall develop all the hydraulic power created by such dam and transform any or all of such power not reasonably necessary for the purpose or purposes of said appropriator into electrical energy, and shall transmit the same, or such part thereof as is not rear so'nably necessary for the purpose or purposes of such appropriator, for sale to the public. This purports to authorize the taking of the land of a riparian owner, unimproved or improved, by one not a riparian owner, who has the right to employ all or part of the most valuable use of such land to his own private purposes. It is quite a different thing to impose upon a corporation to which the power of eminent domain is delegated public duties (Wis. River Imp. Co. v. Pier, 137 Wis. 325, 118 N. W. 857) and to declare that a given use for the benefit of the owner of property is a public use. This last is what the legislature attempted to do here. If the legislature, could, by mere fiat, make any use of property a public use, all private property could in this way be subjected to these drastic regulations justified by a public use. “All the courts, we believe, concur in holding that whether a particular use is public or not, within the meaning of the constitution, is a question for the judiciary.” Wis. W. Co. v. Winans, 85 Wis. 26, 40, 54 N. W. 1003, citing Lewis, Eminent Domain, § 158; Talbot v. Hudson, 16 Gray, 417; and other cases. The use of water power by a manufacturer for his own purposes is a private use and is not on tbe basis-of a sale of power to tbe public. This part of tbe act therefore falls.

Tbe right of tbe riparian owner to use tbe water of tbe river on bis own land within bis boundary determined by ordinary high-water mark, for tbe purpose of creating power or, as tbe act in question puts it, “developing energy,” returning tbe water again to tbe stream, is unquestionably a private right appurtenant to tbe riparian land. Tbe idea of. a legal ownership of the “energy” of falling water by one who owns neither tbe water which falls nor tbe land tbe declivity of which causes tbe fall has been analyzed and criticised by counsel for relators. But counsel for defendants disclaim any such meaning for tbe statute in question, no doubt finding a different position, in their opinion, untenable. • It is conceded there is such a riparian right as tbe right to use tbe water for power, and also that this right is to be exercised in subordination to tbe public right of navigation and tbe necessary accessories of the latter. We say that if tbe exercise of this riparian right, in tbe judgment of tbe legislature, interferes with tbe public right of navigation, it may be forbidden. But as has been said by Judge Cooley in Middleton v. Flat River B. Co. 27 Mich. 533: “Each right should be enjoyed with due regard to tbe existence and protection of tbe other.” Or, as be says in Buchanan v. Grand River & G. L. R. Co. 48 Mich. 364, 367, 12 N. W. 490: “Each right modifies tbe other and may perhaps render it less valuable, but this fact, if tbe enjoyment of tbe right is in itself reasonable and considerate, can furnish’ no ground for complaint.” Where tbe ownership of tbe barde is essential to tbe construction^ a dam or tbe creation or development of a water power, tbe state is as helpless to use, sell, or lease such right without condemnation and compensation as tbe riparian owner is to intrude into tbe navigable stream without consent of tbe state. It requires tbe concurrence of tbe riparian owner and tbe state in such case to make the water power efficient, and this right of tbe riparian owner to refuse to concur aud stand out for compensation, in tbe case mentioned, is a private property right and often gives to suck land its chief value. The state may refuse its permis-' sion to the riparian owner to build a dam and may attach conditions to its consent, such as the height, strength, mode of construction, etc., of the dam, and perhaps other conditions, but it may not seize upon this right without compensation and use it or sell it or lease it to another. It cannot authorize the use and enjoyment of this right by a person not a riparian owner for a private purpose without the consent of the riparian owner, nor for a public purpose without condemnation and compensation to the riparian owner. This principle runs through all the cases. Green Bay & M. C. Co. v. Kaukauna W. P. Co. 10 Wis. 635, 35 N. W. 529, 36 N. W. 828; Koenig v. Watertown, 104 Wis. 409, 80 N. W. 728; West v. Fox River P. Co. 82 Wis. 647, 52 N. W. 803; Fox River F. & P. Co. v. Kelley, 70 Wis. 287, 35 N. W. 744; Kaukauna W. P. Co. v. Green Bay & M. C. Co. 75 Wis. 385, 44 N. W. 638; A. C. Conn Co. v. Little Suamico L. Mfg. Co. 74 Wis. 652, 43 N. W. 660; Wis. River Imp. Co. v. Pier, 137 Wis. 325, 118 N. W. 857. Many other cases will be found cited in the briefs of counsel for relators. These premises support the conclusion that the act in question attempts to deprive the owners of improved riparian land and of the resulting water power, and owners of unimproved riparian land with its appurtenant water-power privileges and advantages, of property without due process of law; that it attempts to authorize the talcing of private property for private purposes; and that it attempts to take property without just compensation. The act in question, in the particulars mentioned, is inconsistent with the paramount commands of the state and of the federal constitution applicable to the same facts and conditions. Hence we cannot recognize it as law. We must faithfully observe and give force to those constitutional restrictions upon the legislative power, which we have not the slightest doubt apply in tbe instant case. It is contended that the statute may be sustained in part, and the legislature seems to have had some misgivings concerning the constitutionality of portions of the act, because it is therein declared that secs. 1, 2, 3, 23, and 13 are to be considered separable or independent portions thereof, and that any one or all of said sections may fail or be declared invalid without affecting any other section or sections of the act. Also that it was the further intention of the legislature that if any other separable or independent portion of the act, not necessary for the accomplishment of the main purpose sought to be accomplished thereby, fails, the remainder of said act should not be affected by the failure of such separable or independent portion. This may be some indication of legislative intention, but we regard it as merely declaratory of the rules heretofore laid down by this court on the same subject and which are rules of constitutional law. What is the main purpose of the act ? Manifestly to establish a new system, by which the granting of charters for dams should be referred to the Railroad Commission for findings, the construction, regulation, and up-keep thereof subject to the authority of that Commission, and that the state should from henceforth exact a franchise fee, and that all should be coerced to come in under this act and consent to the conditions of the new charter, and that the public, either a municipality •or the state, should finally succeed to the ownership of all water powers of the state. Sec. 1596 is not necessary to the accomplishment of this main purpose. Rut all the rest of the act appears to be. The Commission is not authorized to act, except with reference to the granting of a charter containing conditions here held invalid; their powers of administration I and supervision come into force and are dependent upon the ■■ confiscatory features of the act. Their acts have the legal effect given to them by this invalid statute or no effect. Neither the appropriator nor the municipality nor the state can take the property as herein provided. The terms of the new charter cannot be enforced, and the outlawry of the property and the penalties are invalid. ■ There is nothing left but a confused detail of incoherent provisions. In order for part of an act to be upheld as separable it is essential that such part found to be within the constitutional power of the legislature forms, independently of the invalid part, a complete law in some reasonable aspect, so that it may fairly be concluded that the legislature would have enacted the same without the invalid portions. When a legislative enactment has an all-pervading purpose coupled with minor details and administrative features and this purpose is unconstitutional, such minor details and administrative features cannot survive condemnation of the main purpose.

All the features of this act, aside from those specifically mentioned, are mere details or administrative features of the act. Thus the all-pervading necessary effect of such chapter is to take property which is in' fact private, for a purpose declared to be public, without rendering any compensation therefor. The necessary effect, if enforced, — -and so the purpose in a legal sense, — of ch. 652, Laws of 1911, being state appropriation of the private property rights of riparian proprietors owning the banks of navigable rivers, in a manner not warranted by the fundamental law, and those portions of the act which do not directly deal with the assertion of state title, being merely features designed to render such assertion efficacious, it all forms an inseparable and an unconstitutional entirety.

By the Court. — A writ of injunction is awarded restraining the defendants from acting under or attempting to enforce the provisions of this act except sec. 1596 thereof.

Kerwin and Baenes, JJ., took no part.

Case Details

Case Name: State ex rel. Wausau Street Railroad v. Bancroft

Court Name: Wisconsin Supreme Court

Date Published: Jan 30, 1912

Citation: 148 Wis. 124

Court Abbreviation: Wis.