Oleson v. Green Bay & Lake Pepin Railway Co.

Lyon, J. The learned counsel for the plaintiff concedes (what is doubtless the fact), that all of the proceedings relating in any manner to the bonds in controversy were strictly in accordance with the requirements of ch. 93, P. & L. Laws of 1867, entitled “ an act to authorize the counties and towns through which the Green Bay & Lake Pepin Railway passes, to aid in its construction,” as amended by ch. 166, P. & L. Laws of 1869, and ch. 76, P. & L. Laws of 1871. If, therefore, the act of 1867 was a valid, subsisting law when those proceedings were taken, the bonds are lawfully in the hands of the defendant Worthington; the railway company is entitled to a delivery of them ; and the judgment of the circuit court dismissing the complaint is manifestly correct. But the counsel argues with great ingenuity, that the act of 1867 was repealed by the enactment of ch. 182, Laws of 1872, and hence was not in force when the town of Arcadia voted aid to the defendant railway company. The act of 1872 contains no repealing clause whatever, and, of course, does not expressly repeal any statute. If it abrogates the act of 1867, it does so by implication alone. It is said that the act of 1872 is an entire revision and codification of the law on the subject of town and municipal aid to railway companies, and supersedes and repeals all former laws on the same subject. If it be a revision of former laws, its effect doubtless is to repeal them. The rule is elementary, and has frequently been applied by this court, that a statute which revises the subject nratter of a former statute works a repeal of such former statute without express words to that effect. Lewis v. Stout, 22 Wis., 227; Burlander v. R'y Co., 26 id., 77; Gilbank v. Stephenson, 30 id., 157; Moore v. R'y Co., 34 id., 173. Hence, we must determine whether the act of 1872 is a revis [389] ion of the whole subject matter of granting municipal and town aid to railway companies; and this question must be determined mainly from the language of the act itself. As already observed, the law of 1872 does not, in express terms, repeal any former enactment. Moreover, we have examined it carefully, and we fail to find in it a single phrase which can reasonably be said to show that the legislature intended it as a revision which should abrogate all former statutes on the same subject. Counsel has failed to point out to us one such clause or expression therein. Such being the case, the rules of statutory construction which have been invoked to support the position that the act of 1872, by necessary implication, repeals that of 1867, have but little significance. But in sec. 11 of the law of 1872, we find an express recognition of the continued existence of special aid laws previously enacted. That section is as follows: “If any county, town, city or village shall issue and deliver to any railroad company any bonds in pursuance of the provisions of this act, it shall not thereafter issue or deliver any bonds or incur any liability in aid of the construction of the railroad of such company, by virtue of the authority of any other lato of this -state.’’ It is very clear that the last sentence of this section relates only to laws which were in existence when the act of 1872 was passed, for it could not operate upon laws thereafter enacted. Future acts in conflict with it would necessarily operate as a repeal of the section pro tanto. The legislature of 1872 could not bind future legislatures by the provisions of sec. 11; and it is fair to presume that it made no attempt to do so. Had the legislature intended that the law of 1872 should abrogate all former laws permitting towns, etc., to extend aid to railway companies, it would have been easy to express that intention ; much easier than it was to avoid the expression of it. When the same legislature revised the laws concerning the exercise of the right of eminent domain for the benefit of railway companies, and made all existing companies subject to the re [390] vised law, without regard to the special provisions of their charters, it employed language which plainly expressed such intention. Laws of 1872, ch. 119, secs. 13 and 55; Moore v. R'y Co., supra. But the use of any language in ch. 182 from which it could reasonably be inferred that the chapter was intended as a revision of the law on the subject of town and municipal aid to railways, was scrupulously avoided, and, as we have seen, language is used therein which ^prov'es the opposite intent. These considerations are controlling, and it must be held that the act of 1867 is not repealed by the act of 1872. It is claimed that the act of 1867 is void, and several constitutional objections are urged against its validity. These objections come too late. The validity of similar laws has been repeatedly asserted by this court; and such laws; and bonds issued under them, have for their sure foundation the maxim, stare decisis. It may be that this is their only foundation, but it is a sufficient one. See Phillips v. The Town of Albany, 28 Wis., 357. Some other questions were argued; but it is unnecessary to consider them. By the Court. — The judgment of the circuit court is affirmed.