Town of Platteville v. Galena & Southern Wisconsin Railroad

| Wis. | Jan 15, 1878

Ryan, C. J.

The voters of the appellant town may have been influenced by representations of the respondent railroad company or its officers, made intermediately between the proposition and the election; but the vote of the town was to accept the formal proposition of the railroad company, just as it is written. And no representations, outside of the written proposition, can modify its terms or aid its construction.

The proposition itself is loosely framed; but it is not difficult to put a construction upon it. The respondent was authorized to construct a railroad through this state from the county of Jo Daviess, Illinois, to intersect the Milwaukee & Prairie du Chien Bailroad, west of Monroe. In the construction of this road it desired the corporate aid of the appellant. To that end, it made a proposition stating that it had surveyed and located a line of its road through certain sections in the town to a point designated in the village of Platteville, and proposed to build that road on the route indicated from Galena to the Wisconsin river; and invoked the aid of the town to build that road on the route indicated.

So far as this proposition discloses, the actual survey and location of the line of road does not appear to have then gone northwaz’d beyond the point designated. But the proposition was to build the road on that line to the Wisconsin river. It therefore bound the respondent, not only to build the proposed road on that line and to that point, but to build its road ou that route from Galena to the Wisconsin river: that is, a continuous line of road from Galena to the Wisconsin river, over the surveyed line described in the proposition to the point designated, and from the point designated to the Wisconsin river. That is “the route indicated” of the proposition. That is the road which the proposition undertook to build, and which the appellant was asked to aid. Such is not only the plain construction of the proposition, but is the only construction consistent with its good faith. Any other construction attempted to be given to it, is a fraud upon the plain and honest meaning of the language used.

But it is said that so much of the respondent’s proposition as defines its line of road was ultra vires, against public policy, and void. Ultra vires, it is said, because sec. 4, ch. 182 of 1872, under which the proposition was made, prescribes all the terms and conditions which the proposition can contain, and does not include a statement of the line of road, or an agreement to run it to or through the municipality whose aid is sought. Against public policy, it is said, because such a limitation of the line of road is in restraint of the exercise of the discretionary franchise granted, to locate it for the public 'good. If this were so, it might be a question how far the respondent could be heard to set up its own excess of authority in aid of its own breach of contract. But the position cannot be held well taken. The various statutes on the subject, taken together, clearly establish a public policy to encourage municipalities to aid the construction of railroads, “ which will promote the general prosperity and welfare of the tax-payers of such municipalities.” Oh. 182 of 1872. The acceptance of a proposition under see. 4 is made conclusive evidence of that benefit to the tax-payers. It therefore enters into the proposition, which ought to disclose the benefit and bind the railroad company to whatever produces the benefit. And sec. 4, accordingly, prescribing certain necessary, formal statements, has in it no restrictive words, nothing tending to exclude other statements showing the benefit which the municipality would reap by th-e construction of the road. If this were otherwise, if propositions of railroad companies could not bind them so to build their roads as to benefit the municipalities whose aid they seek, such propositions would probably be not often successful. And the statutes plainly establish a public policy that railroad companies may exercise discretion in the location of their roads in this very way, and be bound by the exercise when made.

It appears that the respondent has built its road to the point indicated, in the village of Platteville, but not that it has located any part of its line from thence to the Wisconsin river. It appears that before the road was built to the village of Platteville, the respondent had proposed to build a more direct line some miles to the eastward; and that, in leaving this line to reach the village, the road made a violent detour of some miles from a point called Phillips’ Corners. It appears thát, after the road had been built to the village of Platteville, the respondent obtained a patent under the general railroad act, ch. 119 of 1872, to build a road branching from Phillips’ Corners and running substantially on the line formerly proposed, some thirteen miles, in a line towards the Milwaukee and Prairie du Chien road and the Wisconsin river, shorter and more direct than the line through the village of Platte-ville.

The respondent claims that this is a branch road under sec. 12 of the general railroad act. It is difficult to believe that this claim is made in good faith. The statute authorizes a railroad company to extend its road from any point named in its charter, or to build branch roads from any point in its line of road. This provision implies a main line of road, certainly located, probably constructed. It could hardly receive a construction authorizing any railroad company substantially to abandon its chartered line and wander through the state by extensions and branches from any fraction constructed of its chartered line. A branch road implies a main line located at least, if not actually built and operated. There cannot be a branch without a trunk. The respondent’s original franchise is to loeate and construct a road from the state line to the Milwaukee and Prairie du Chien road. This trunk line does not appear to be located throughout, much less built. The alleged branch looks suspiciously like a continuance of the main line, on the route formerly proposed; and the spur running thence to the village of Platteville suspiciously like a mere branch of that main line.

If the respondent should continue what it calls a branch to the Milwaukee and Prairie du Chien road, as it might do, it would certainly be within its original franchise, to build a road from the state line to the Prairie du Chien road. That would be a complete user of its original franchise. It needed no additional franchise to construct it. If it were not otherwise bound by its contract with the appellant, it might then have abandoned its line and dismantled its road from Phillips’ Corners to the village of Platteville. And all the facts in the case, as well as the argument of the respondent’s counsel, have satisfied us that the respondent intends the pretended branch to be its main line; its pretended main line to the village of Platteville to be a branch only.

. There is no evidence of any present design to continue the road northward from the village of Platteville; indeed the respondent’s answer denies its obligation to do so, and it sufficiently appears that there is no such design. And it was argued here for the respondent, that its contract with the appellant does not bind it to do so; that the road already constructed satisfies the contract; that the appellant has in effect paid its money for a branch of the main line running to the village of Platteville, not for a main line running through it; and that the appellant has no cause to complain of the expenditure of the aid which it gave, upon a line of road outside of it, and in which it has comparatively little interest. This court can sanction no such punic faith.

But if the line of road which the appellant seeks to enjoin could he regarded in the light of a branch from the main line, the equity of the appellant, in the existing condition of things, would not be materially different. The respondent is admitted to be, as all the facts go to show, a feeble company; with doubtful ability to construct any road between the terminal points of its charter. Equity will not suffer such a company, as against such a contract for its main line, to waste its means upon branches which may be more profitable, but which it has no right to undertake by disabling its capacity to build the main line.

In any view, this case is within the letter and spirit of sec. 23 of the general railroad act, which prohibits any railroad company from diverting its road from a municipality from which it has received aid. If the respondent’s road be not diverted or turned aside from the village and town of Platte-ville, it is difficult to understand how a road can be turned aside from a given point.

The course of the respondent was willful wrong and gross fraud towards the appellant, and the injunction restraining it should have been continued. But it is said, and indeed conceded, that the road enjoined has been actually built since the dissolution of the injunction. It is therefore urged that the injunction will be ineffectual. It is none the less the duty of this court to reverse the order dissolving it. And it will be thereupon the duty of the court below to exercise its authority, as far as it can, towards repairing the wrong which its error has permitted. “The consequence may possibly be to stop the railway. I answer that it ought to be stopped, for it passes where it does by wrong.” Shadwell, V. C., in Att’y Gen’l v. G. N. Railway Co., 4 De Gex & Sma., 75. The construction of the road pending the appeal was á bold and dangerous risk in disregard of judicial authority. The railroad company is the creature of the law, and must be taught, if need be, that the law is stronger than its creature; and that the construction of a road in violation of the law and its duty does not place it beyond the power of the courts to enforce its good faith and obedience to the law in the performance of its contracts.

By the Court. — The order dissolving the injunction is reversed, and the cause remanded to the court below for further proceedings according to law.