Attorney General v. West Wisconsin Railway Co.

Ryan, C. J. I. It was understood on the argument of the demurrer, that, prior to 1863, the La Crosse & Milwaukee Railroad Company had located and built, as part of the land-grant road under ch. 122, Laws of 1856, the road from Portage 'City to Tomah, and had located the line of the land-grant road northward from Tomah to Lake St. Croix, but had failed to 'build any part of the land-grant road beyond Tomah; and had built its road westward from Tomah to La.Crosse, outside of the land-grant route and wholly distinct from it. — 485 — Thereupon the legislature, by ch. 248, of 1863, repealed so much of the franchise and grant to the La Crosse & Milwaukee Company as was applicable to the road from Tomah to Lake St. Croix, and incorporated the defendant by the name, after-wards changed, of the Tomah & Lake St. Croix Eailroad Company ; endowing it, for the purpose of aiding it in the construction of the road which it was thereby authorized to construct, with so much of the land grant as was applicable to the road from Tomah to Lake St. Croix, resumed from the La Crosse & Milwaukee Company. It is very manifest from the general scope and tenor of the charter, that it was the purpose of the legislature to substitute, as its agent or trustee under the grant from congress, pro tanto, a new company, for the insolvent and almost extinct La Crosse & Milwaukee Company, so as to secure so much of the land-grant road as the charter covers, which the latter company had virtually abandoned: that is, the road from Tomah to Lake St. Croix; placing the new company, quoad hoc, in the very position abandpned by the old. The road which the defendant was authorized by sec. 5 to locate, construct and operate, is afterwards some three, times designated in sec. 14 as a road from Tomah to St. Croix; corresponding exactly with the franchise of the La Crosse & Milwaukee Company repealed in sec. 18, with the grant resumed from that company and conferred on the defendant, and with the terminal designations in the name of the defendant. In sec. 5, however, the express authority to the defendant is to locate, construct and operate a road from such point as the directors should determine in the town of Tomah, or on the track of the La Crosse & Milwaukee Eailroad, or of any other railroad running out of Tomah, by way of Black Eiver Falls, to such point on Lake St. Croix between townships 25 and 31, as the directors should determine. Laying out of view the contingency of other railroads running out of Tomah, if this choice of the southern- terminus is — 486 — to be taken literally,, uncontrolled by other parts and the general tenor of the charter, the directors might have located it at Milwaukee, or at La Crosse, or at any intermediate point of the La Crosse & Milwaukee Railroad. This is so palpably and strangely inconsistent with the whole scope and tenor of the charter, and with its language elsewhere, that it is difficult to accept it as the intention of the legislature. It is plain throughout the statute that the legislature intended the southern ter.minus to be within the town of Tomah. And a choice of it outside of the town, might have been so made as to baffle the whole policy of the statute. Indeed there is a positive contradiction between sec. 5 and sec. 14; and one or the other must give way. But while it is so difficult to comprehend why an election of terminus should be given outside of Tomah, it is very easy to understand why the legislature should require the southern terminus within the town to be connected there with another railroad, so as to make a connected line to other points. This suggested to us that the entire difficulty would disappear by reading and for or. It struck us so forcibly that this must be the true reading that we referred to the enrolled act; but there we found the same word as in the printed volume. In such a case, in a private document, there would be no difficulty in construing or in the sense of and. In deeds, agreements, wills and other private papers, the word or, said to be one of the .most equivocal in the language, should be construed in a copulative and not in a disjunctive sense, when necessary to the spirit and intent of the document. In such papers, and and or are readily convertible words according to the sense required by the context; and ever since what is called the leading case of Fairfield v. Morgan, the rule has been familiar to the profession. See Mallory's Case, 5 Coke, 111 b.; Denn v. Kemeys, 9 East, 366; Right v. Day, 16 id., 67; Fairfield v. Morgan, 5 Bos. & Pul., 38; Jackson v. Topping, 1 Wend., 388; Hunt v. Hunt, 11 Met., 88; Fnglefried v. Woelpart, 1 Yeates, 41; Griffith v. Woodward, id., 316. — 487 — It is not very apparent why the same rule should not be equally applied to statutes, yet it does not appear to have been often done; and Mr. Dwarris seems to question whether it should be done except to support a settled construction. Dwarris, 772. But he seems to have overlooked Hall v. Philips, 1 Ventris, 62, in which or, in a penal statute, was held to mean and. In White v. Commonwealth, 1 S. & R., 139, the court held or to be copulative not disjunctive, and equivalent to that is to say.* And, seeing no other way to reconcile the apparent inconsistencies of the defendant’s charter, and seeing this way of putting all its provisions in perfect accord with each other and with the evident design of the legislature, we feel warranted by authority in holding or in the phrase in question in sec. 5 to be equivalent to and; so that it shall read —“ in the town of Tomah and on the track of the La Crosse & Milwaukee Railroad or of any other railroad running out of Tomah corresponding with the description of the road in sec. 14. Any doubt which there might be about this construction, is cured by ch. 232 of 1865, making a further grant of lands conferred by congress on the state, for the purpose of aiding the construction of a road from the town of Tomah to the St. Croix river or lake, and confirming the original grant to the defendant to aid in building the said railroad. This seems to have been a timely legislative construction of the charter; an amendment of the description in sec. 5, if such amendment were necessary. We hold therefore that the choice of the southern terminus of the road was limited to a point on the La Crosse & Milwaukee Eailroad or other road running out of Tomah, within the town of Tomah. — 488 — And, accordingly, the directors located the terminus on tbe line of the La Crosse & Milwaukee Railroad, adjoining the village of Tomah, in the town of Tomah. When this was done does not very plainly appear in the pleadings: presumptively in 1866, subject to the act of 1865. This was certainly a valid location, according to any construction of the charter; and the point so selected and determined became and remained the fixed terminal point of the road, as much as if it had been specifically so designated in the charter. It seems to us very certain that the designation then of Camp Douglas, in another town and another county, as the southern terminus of the road, would have been unwarranted by the charter and invalid. We say that the point selected became and remained the fixed terminal point, because the charter, giving express power to change the location of the route of the road, withholds power to change the termini, once determined. The power to locate the termini,.once exercised, was at an end. And all the power of the charter' to change the route of the road, is expressly to change the route between the termini. All the franchises of the charter are dependent on the franchise to locate, construct and operate the road between the termini. The legislature gave to the defendant continuing power of change between the termini; but none over the termini, once fixed. There are, as is argued, very ample words in the section going to the power to change, but the whole power goes to the route between the ends, and not at all to the ends themselves. This is too plain for argument. The mere reading of the section is conclusive. It appears that the defendant constructed the road from this southern terminus northward by way of Warren’s Mills and Black River Falls to St. Croix, and filed the necessary plat of the road to entitle it to the land grant, and did entitle itself to the land grant northward from .the southern terminus, and did receive it from the state for every twenty miles of road built, — 489 — including the road from the terminal point in Tomah to Warren’s Mills, a distance of about ten miles. By ch. 516 of 1870, the defendant received authority to extend the line of its road to the south line of the state. The defendant pleads that, under this authority, it caused several lines for the extension of its road south to be surveyed from the terminus in Tomah to Elroy in this state, the actual northerly terminus of the road of another company leading from Chicago,, and that a practicable route could not be found direct from Tomah to Elroy ; and that the only practicable route between those points was found to be along the line of the La Crosse & Milwaukee road, some twelve or thirteen miles, to Camp Douglas, and thence southerly to Elroy,— a route alleged and appearing on the map annexed-to the pleading to be an indirect and inconvenient one; that it finally passed a resolution locating the southerly extension of its road on that line; and that thereupon it built the road from Camp Douglas to Elroy, intending to make a temporary running arrangement over the La Crosse & Milwaukee road from Tomah to Camp Douglas, and ultimately to build its own road between those points; that the contemplated arrangement with the La Crosse & Milwaukee road failed; that thereupon the defendant altered and straightened its line of road, so as to run direct from Warren’s Mills' to Camp Douglas, which was accordingly done by the construction of a new road on the new route, making a direct route from Warren’s Mills to Elroy, excluding Tomah, which is alleged to be, as it appears on the map, a shorter and better route; and that thereupon it discontinued the road from Warren’s Mills to Tomah, and moved the rails and ties from it. These transactions are verified by oath, and their bona fides is admitted by the demurrer; or it might have been difficult to understand that, failing a practicable route direct from Tomah to Elroy, there ever was a serious purpose of extending the — 490 — defendant’s road from Tomah via Camp Douglas to Elroy. It is worthy of notice that it is not pleaded that there was any attempt or failure to find a practicable route from Tomah to the south line of the state, but to Elroy only, as if the defendant had substituted Elroy for the south line of the state as the southerly end of the extension. All this was probably good railroad policy, if such policy were independent of franchise ; but it was not compliance by the defendant with the law of its creation. Taking the facts just as they are pleaded by the defendant, we cannot hold them to be within the authority to extend the line of the defendant’s road to the south line of the state. The power which the defendant took was, not to build a new road from any point on its old road, to the south line of the state, but to extend its old line of road there, that is, to extend the whole road. And the line of road which the defendant was authorized to extend is expressed in all the statutes relating to it to be the road from Tomah to St. Croix. And the terminal point in Tomah being once fixed, the authority to extend was to extend from that very point; for extension must begin at the end of the thing extended, so that the line extended and its extension shall form a continuous line. The authority to extend was as well limited to the point in Tomah, as if it had been so nominated in the statute authorizing the extension. It is so expressed in the word extend. And it is difficult to understand how this road was extended by a process which did not add a rail to it, but made its extension impossible until it should be itself restored, by obliterating the end of the road to be extended. It is not pretended that the road from Warren’s Mills to Camp Douglas was an extension. That road is claimed to be a change of route, after extension. And surely the road from Camp Douglas to Elroy was not an extension of a road which it did not reach by some twelve or thirteen miles. Assuming, as we are bound on the demurrer to assume, that it was built — 491 — to form part of the proposed extension, it could become a part of it only upon the extension of the road from Tomah to it. Hiatus annihilates the essential condition of extension. In such a ease, lines not connecting may be intended to be connected, and thereupon will form one continuous line, the new being an extension of the old ; but until then they are separate and distinct lines, not parts of one line. And the legislature did not intend a theoretical or intentional extension, but an actual and practicable extension, over which trains could pass continuously, without encountering a gap of several miles furnished only with an intentional track. We lay out of view the arrangement to run over the La Crosse & Milwaukee road, which rather appears to us to be equivocally pleaded : because it is difficult to see how such an arrangement would have been a compliance with the authority, and because it was never consummated, but rested altogether in proposition. Indeed it seems to be pleaded only by way of apology for what was done. Nothing appears to have been done looking towards the construction of the road from Tomah to Camp Douglas, except the naked resolution of the directors to make it the line of extension. And this is set up as an execution of the power to extend. And it is claimed that, the road being thus extended, Tomah ceased to be a fixed terminal point, Elroy taking its place for the time as the terminus of a road with which it was not connected; and that the extension of the road from Warren’s Mills by Camp Douglas to Elroy was a legitimate exercise of the power to change the location of the road under sec. 5 of the charter, and under sec. 28 of the general railroad act of 1872. We have indicated the fallacy of the position that a mere resolution to extend the road operated to extend it. What the legislature authorized was an extension by a road, not by a resolution. The resolution looked towards extension, but did not extend. It was the line of actual road that was to be extend — 492 — ed, and the extension could be only by actual road. The legislature looked to a highway for the carriage of passengers and goods, not to the resolution of a board or the plat of an engineer: to a fact, and not to a theory : to a thing, and not to an intention. Extension of anything must be of the quality of the thing extended. A resolution may extend a resolution : a line on paper may be extended by a line on paper: but a railroad can be extended only by a railroad. The extension of a railroad by a declaration of intention seems to partake of the quality of Mr. Harold Skimpole’s philosophy of payment. A resolution to extend a road extends it, just so much as a resolution to fence a road fences it. And' the resolution rested wholly within the power of the directors, to alter or rescind, as virtually happened with this resolution, obliterating the extended railroad with the motion of a pen. Where one power is made dependent on the execution of another, the former cannot be put in motion by a resolution to execute the latter. Promise cannot take the place of performance. If there were power granted to the defendant to alter the road away from Tomah, after the extension, the extension must precede the alteration. Tomah certainly remained the actual terminus of the road, when the alleged alteration was made. And it was a change of terminus, not of route. Were this otherwise — had the road been legally extended, — we cannot say that the power to change the route of the road away from Tomah would have followed. The principal road, the road extended, would still be the road from Tomah to St. Croix: the extension going from Tomah. The franchise would still be to build and operate an extension from Tomah. The extension would still be dependent on the road extended: an accessory to its principal. If the statute authorizing the extension should be repealed, where would the franchise of the defendant under the original charter end, as applicable to the actual road as it is to day ? We are inclined to think at Warren’s Mills, because the extension really proceeds from there. — 493 — And there is no doubt that, in that case, the defendant would have, as it now has, a franchise to restore and operate its road 'from Warren’s Mills to Toraah. We see nowhere indication of legislative intention to authorize the defendant to abandon the terminus of the road once fixed under its. authority. So far as the charter of the defendant is concerned, we have already shown that the power to alter the road is limited to alteration between the termini. The general railroad act of 1872, as amended, confers on the defendant, in addition to the powers of its charter, the powers contained in that act itself. That requires parties seeking incorporation under it, to execute articles of association stating, amongst other things, the places from and to which their road runs or is intended to run, the length of the road, and the counties through which it is made or intended to be made, but no particular or other statement of its route. These articles are the basis of incorporation, to be filed in the secretary of state’s office. Upon these articles is issued the state patent of incorporation to construct, maintain and operate the road from one terminal point to the other, without stating the counties through which it is to run. And the corporation takes a franchise for a road between the terminal points specified, and for no other road. In the body of the act power is given to the corporation to change the route or any part of the route of their road or any part of their road ; filing in the office of the clerk of the circuit court of the proper county a certificate of the change. Here also we take the power to change the route of the road to be a power to change it between the terminal points specified in the patent, “ their roadand not to change the termini themselves. The jurisdiction of the state officers to issue the patent rests on the articles of association ; and both the articles and the patent are. limited by the terminal points stated. Neither are to give the route in detail, which is not jurisdictional ; and therefore power is given to change the route for convenience of the road between the terminal points. And — 494 — when such change is made, the certificate of it, going to local arrangement and not to the fundamental franchise, is filed in a local office and not in the secretary’s office. It is even matter of doubt whether the change of route authorized can involve a change of the counties specified in the articles. This view seems to us to be necessarily implied in the word route, which, as the dictionaries tell us, implies passage to and from. The word is a French one, and we find it defined in Fleming & Tibbins’ standard French dictionary, as “a way used for going from one place to another.” And, corresponding with its defined meaning, its common acceptation excludes terminal points, and makes it dependent on them. We feel quite satisfied that the legislature, in giving liberal power to change the route for convenience, intended to give no power to change the places between which the road is to run, and so to leave railroad corporations free, by a little management, to change specific charters into roving commissions throughout the state. The legislation of the state is liberal enough of franchise to these corporations, in all conscience, to leave them without excuse for licentious construction of their charters.' Were the position of the defendant well founded, we can see no reason why, in this case, the defendant might not have changed the whole road, abandoning it from its terminus on Lake St. Croix, and selecting at will any route to the south line of the state; wholly disregarding the legislative policy in its creation, and overlooking that the operation of the road chartered was a public trust committed to it and accepted with its charter. This follows logically from the position taken, and involves the absurdity that authority to extend a road operates as authority to abandon and remove the road to be extended, and to build a road different in all respects except one terminal point, to be in turn abandoned and deserted in a future reformation of the route of the new road, making railroads, as suggested by the defendant’s cpunsel, chartered vagrants. — 495 — It will be noticed that we have not rested our conclusions on any of the provisions of cb. 58 of 1859; and that the question of the repeal of that statute by ch. 119 of 1872 is not involved or considered in this case. Neither have we taken any aid from the view that the defendant’s road is a land-grant road, for the construction of which the state has paid a consideration. It is said that, the road being built, the contract is executed. If this implies that, having obtained the grant, the defendant is at liberty to discontinue the road, we cannot assent to it. The charter, being in perpetuity, and being a contract upon consideration proceeding from the state to the corporation, appears to us to be binding in perpetuity, unless and until sooner determined by law. And, until determined, or until it be so changed by the law governing it, we do not perceive how the defendant can evade the duty of maintaining and operating the road, without breach of contract. It would be a strange disposition of the bounty of the United States and of the state, for the endowed company to build twenty miles of road and receive corresponding twenty miles of grant; take up the twenty miles of road built, build other twenty miles of road and receive other twenty miles of grant; take that up in turn, and so on to the end; absorbing the whole grant and leaving no vestige of road in the route of the grant. This the defendant can do, if it can without legislative authority take up one mile of the land grant road built. The acceptance of the franchise, in any case, involves a public trust; in this case it involves a public trust upon valuable consideration in addition to the consideration of the franchise. We apprehend that the bare statement of the scope of the proposition is sufficient to show it as deficient in morality as in logic. We have dwelt upon this subject at, perhaps, undue length, not because there appeared to us to be any difficulty involved, but in deference to the length and earnestness and ability with which the- opposite positions were pressed upon us. — 496 — These views compel us to hold, that the defendant, in discontinuing and taking up its road from Tomah to Warren’s Mills, violated the provisions of its charter and its duty to the state under its charter. And it follows, that the road which the defendant is required by ch. 31 of 1873 to relay and equip, is part of its chartered road, which it had built and was bound to maintain, and not a new road coming within the principle stated in Kenosha etc. R. R. Co. v. Marsh, 17 Wis., 13, and at the present term in Attorney General v. Railroad Companies, 35 id., 425. II. On principle and authority there seems to be little room for doubt, or even for discussion, that this case comes within the first and second subdivisions of sec. 4, ch. 160, R. S., and that the act of the defendant, in discontinuing and taking up its road, as set up in the information, constitutes an offense against the provisions of its charter and a violation of public law, working forfeiture. The case of the Albany & Vermont Railroad is, in many respects, very similar to this. There the company was incorporated for a road from Albany to Eagle Bridge, which was built the whole distance, and then discontinued and dismantled for some twenty-one miles from Waterford Junction to Eagle Bridge; the rest of the road being operated with other roads. There, as here, it was claimed, that this was done under resolution of the directors as an exercise of the corporate right to change the route of the road. In that case the New York courts discuss the distinction between the original obligation to build the road, and the right to discontinue part of it, when built. But the right to abandon and take up part of the road is denied, and the duty to maintain the whole road, when once completed, is asserted, in all the reports of the case. The discussion is interesting, but we have space for only a single extract. The court of appeals say: “ The defendant has abandoned all its road east of Water — 497 — ford Junction, whilst it is continuing the operation of that part between Albany and Waterford, in connection with the Bensselaer & Saratoga Railroad. It is exercising its corporate rights and privileges and the franchise granted by the state to maintain and operate a railroad between Albany and Eagle Bridge, in the operation of one between Albany and Waterford Junction, without any assent by the legislature to the abandonment of any part of its road, or any legislative modification of. the franchise granted to it. This cannot be legally done. It is the exercise of a franchise or privilege not conferred on the defendant by law.” People v. Albany & V. R. R. Co., 19 How. Pr., 523; 37 Barb., 216; 24 N. Y., 261. The general principle is very ably and elaborately discussed in People v. Kingston & M. T. R. Co., and People v. Bristol & R. T. R. Co., 23 Wend., 193, 222. The English King’s Bench, holding the same view, issued a mandamus for the restoration of part of a road dismantled by the corporation. Rex v. Severn & W. R. R. Co., 2 Barn. & Ald., 646. These authorities, in which we entirely concur, seem to us to govern this case. Some of the provisions of ch. 31, Laws of 1873, well discussed at the bar, raise important and interesting questions which we have not noticed, because, as has been seen, we hold that this proceeding can be maintained without aid from that act. We have arrived at this view with somewhat of reluctance, because, as the facts are pleaded in the defendant’s answer, which we must assume to be correct on the demurrer, the defendant’s road appears to have been improved, without special injury to any locality. But, conceding that, it appears to us to have been a grievous error of the defendant to attempt to evade its charter and take the law into its own hands. With its views of its interest, it should have appealed to the legislature for authority to do what it has done without authority. — 498 — And we have the less reason to regret any apparent hardship in this decision, .because the distinguished gentleman who argued the demurrer for the state, declared the purpose of the state to be the restoration of the discontinued road, and not the forfeiture of the charter, unless in case of obstinate resistance by the defendant. By the Court —Let an order be entered sustaining the demurrer to the defendant’s answer, with leave to the defendant to answer over to the information by the first day of the next term. Footnotes [*] See Winterfield v. Stauss, 24 Wis., 394, and O'Connell v. Gillespie, 17 Ind., 459, there cited, which were overlooked when this opinion was written. See also Farrell v. Lamar, 1 Wis., 8.