State ex rel. Sturgeon Bay & Lake Michigan Ship Canal & Harbor Co. v. Commissioners of School & University Lands

DlKON, 0. J. Recognizing to the fullest extent, as this court has not unfrequently done heretofore, the doctrine contended for by the learned counsel for the relator, that where the words of a statute are plain and unambiguous and such as are ordi [166] narily incapable of different applications, or are commonly used in one general sense, we are bound to adhere to the ordinary meaning of them and to their grammatical construction, regardless of any equity which may be raised .upon the statute, or of any public or private inconvenience or injustice which may follow, and that we cannot depart from such ordinary’grammatical meaning and construction, unless they are at variance with the intention of the legislature to be collected from the statute itself, or lead to some manifest absurdity or repugnance, we are nevertheless of opinion that this is not a case within the operation of the rule, the correctness of which is thus conceded. We disagree with the learned counsel as to the ordinary meaning and use of the word “ proportion ” found in the statute, upon the import and application of which the controversy chiefly depends. We think, also, that there was an omission from the statute of some words which were requisite to make the intention of the legislature entirely clear and certain, according to the position taken by counsel on either side. For the relator, to render the position assumed by its counsel clear and indubitable, it required the insertion of the words “ in acres ” after the word “proportion.” For the respondents, to show that the position of their counsel is unmistakably correct, the words “ in value” should have been used in the same place. In either view, therefore, assuming for the present that we are correct as to the ordinary signification and use of the word “ proportion,” it is a case where some words are wanting to make the intention of the legislature entirely clear. Either the words “ in acres ” or the words “ in value ” must be supplied, or the statute interpreted as*if they were expressed. It is, then, a statute of doubtful words — words fairly susceptible of ■ two meanings — and where the intention of the law maker is ambiguously expressed, that we are called upon to expound. In such a case, interpretation is allowable, and the court is authorized to and must look beyond the very words under construction to ascertain the intention of the legislature. It must look to the whole [167] scope of the statute, and to other statutes in pari materia and connected with it, and to the apparent intention of the legislature, derived from the whole. Mundt v. Railroad Co., 31 Wis., 451, 458; Buffham v. Racine, 26 id., 449. To return to the question first stated, namely, as to the ordinary meaning and use of the word “ proportion,” we are of opinion that it is as appropriately and generally employed to indicate one’s share or portion when the whole of a thing is distributed according to value, as when it is arranged and divided with relation to magnitude or quantity. One of Webster’s definitions is : “ The portion which falls to one’s lot when a whole is distributed by a rule or principle;' equal or just share; lot.” In this instance, the rule or principle of equality in value may have been that intended by the legislature; in which case “ the proportion of said lands the said company has become entitled to ” is one-fourth thereof in value. One-fourth of the lands in value would be its “ equal and just share.” In further illustration of the correct use of the word “ proportion ” when value as well as magnitude or quantity is spoken of, we may cite the quotation from Addison, given by Webster in defining the verb. It is as follows: “In the loss of an object, we do not proportion our grief to its real value, but to the value our fancies set upon it.” The court experiences no difficulty, therefore, in saying that it is one-fourth part in value of the lands to which the relator is entitled, provided, upon consideration of the whole and every part of the statute, and of the act of congress donating the lands, such seems to have been the legislative intent. It is not to be questioned, we think, that the intention clearly manifested by congress in making the grant, and by the legislature of the state in accepting it (which, though it may have the power to defeat the object of congress by disposing of the lands without the making or completion of the improvement, has shown no such purpose or disposition), favors the construction put upon the statute by the respondents, and contended [168] for by the attorney general, who represents them. The legis lature has indicated its purpose to give effect to the will an<? expectation of congress, and faithfully to execute the trust re posed in the state, by the very words of the statute under con sideration, which require the governor to satisfy himself that the “ work has been done in accordance with the requirements of this act and of the act of congress aforesaid.” The spirit and policy of the acts, both of congress and of the legislature, seem to demand, therefore, the construction given by the commissioners, unless such construction is repugnant to particular words of the statute establishing a contrary intent. They demand such construction, because otherwise, upon the facts re turned by the commissioners, the object of congress and of the state, in donating any part of the lands, may be ultimately de feated. Other circumstances being equal, or not preventing, that construction is always best which will best subserve the great primary object of the lawgiver. Upon examining the statute, we find no special words or clauses in it inconsistent with this construction or going to show a different intent. None such were pointed out or are relied upon by counsel. Some stress was laid upon the provision that the lands to" be conveyed are such as are “ selected by said company,” and also upon the absence from the statute of any clause or clauses declaring how the value of the lands shall be ascertained. It is obvious that apportioning and conveying the lands according to their value will not interfere with or defeat the company’s right of selection. The lands selected may be less in quantity than fifty thousand acres or one-fourth the area of the entire grant, but the one-fourth in value may be taken by the company wherever it chooses from the lands granted, and those selections may be made which are most to be preferred on account of their marketable situation and present cash value. And with respect to the absence from the statute of any provisions for ascertaining the relative value of the lands selected [169] to the whole quantity granted, we can not look upon this as a-circumstance which should control the construction, or as one indicating with any clearness and certainty that the legislature intended that quantity and not value should govern in the apportionment and’ conveyance. This may have been an oversight on the part o£ the legislature, or it may possibly have been thought that no such provisions were necessary. • At all events, it was left open to the commissioners and the company to agree upon the value, which is one way of giving effect to the act as it now is. It was suggested at the bar that the commissioners have the power to designate and appoint suitable persons as agents to examine and report the relative values of the lands, or that they are authorized to agree with the company in the selection and appointment of such persons. We are not sufficiently familiar with the powers and duties of the commissioners to say how these things may be, and for the present are not required to investigate them. W e are only required to say that, in our judgment, the circumstance here alluded to is not one which can vary the construction of the statute as above given, and for the reasons we have above attempted briefly to state. By the Court. — ■ The demurrer to the return is overruled.