Sellers v. Union Lumbering Co.

RyaN, C. J. It was agreed by counsel. on tbe argument that Yellow river, tbe subject of cb. 12 of 1873, was, prior to tbe passage of that statute and to tbe improvement of it by tbe appellant, of sufficient capacity to float logs; tbougb its capacity was materially increased by tbe works of tbe appellant. Tbe river was therefore a public highway. Whisler v. Wilkinson, 22 Wis., 572. Tbe statute of 1873 authorizes any person, company or cor [527] poration, tbeir successors or assigns, wbto shall ham, at prescribed expense, improved tbe river by prescribed works, and shall keep tbe same in repair, so as' to faciliate tbe floating of logs, to collect certain tolls upon logs put into the river. Of course tbe right which the statute assumes to grant, is a franchise. 2 Black., 38; Plankroad Co. v. Reynolds, 3 Wis., 287; Chapin v. Crusen, 31 id., 209. A franchise is property; an incorporeal hereditament (2 Black., 37; 2 Stephen’s Com., 14); a certain privilege conferred by grant from government and vested in an individual. 3 Kent, 458. “ Franchises are special privileges conferred by government upon individuals, and which do not belong to the citizens of the country, generally, of common right.” Bank v. Earle, 13 Pet., 519. Like every other kind of property, a franchise must have a certain owner. It can only exist by grant; for title by prescription presupposes a grant. Trotter v. Harris, 2 Y. & J., 285. And a certain grantee is essential to a grant. 2 Black., 296, 317, 347. In England, franchises were formerly granted by the crown only to persons or corporations; latterly, corporate franchises are commonly granted by parliament. In this country, franchises proceed from the legislative power, and are very generally granted to corporations. Indeed the right of incorporation is said to be itself a franchise. 2 Black., 37;. Ang. & Ames on Corp., sec. 4. A corporation may be presently created by the terms of a statute, without condition precedent or preliminary. But very commonly, charters are framed, not of themselves creating, but authorizing the formation of corporations upon preliminary conditions. Under the former class of charters, the corporation created is the grantee of the franchises conferred. Under the latter class, neither the franchise to be a corporation, nor the particular franchise conferred, takes effect before the actual formation of the corporation. When the corporation is formed, the franchises con [528] ferred vest in it as grantee. Att'y General v. Railway Companies, 35 Wis., 599. Franchises so conferred are like any other estate granted upon condition precedent, the estate vesting upon condition fulfilled.. But like every other operative grant, franchises so conferred have a certain grantee. We are not able to agree with the learned counsel for the appellant in the construction of the statute in this case. The franchise is granted to any one who shall have improved the river; that is, who shall have done so at any time before the right to collect toll shall accrue. And so the franchise runs to any one improving the river according to the terms of the statute, whether before or after its passage, to take toll in right of his improvement. And the franchise is not to one person or company of persons or corporation; but expressly to any person, that is to every person, who shall have improved the river in the terms of the statute. We see no reason why, under the statute, other persons or corporations, thinking the improvement of the appellant insufficient, may not again spend the sum required by the statute in further improvement of the river, and thereupon claim a like franchise to that claimed by the appellant, and so subject lumber floating down the river to an indefinite number of distinct tolls, each to the full measure of the statute. This was the construction given to a statute of Michigan, in this particular not unlike the statute before us. Ames v. Port Huron Co., 11 Mich., 139. We are unable to give any other construction to the statute under which the appellant claims. This would not only be most oppressive in practice, but might well of itself render the whole grant void for duplicity. See 2 Black., 37; Wilcock, 27, cited in Stroud v. Stevens Point, 37 Wis., 367; 2 Rolle’s Abr., 191, n. 2, 3. The ingenious position was taken for the appellant, that the statute has relation to improvements of the river already made at the time of its passage; and that the appellant only having then improved the river as required by the statute, must be [529] held to be the sole grantee of the. franchise. Of course the position fails in our construction, of the statute, even if it were competent to ascertain by parol the grantee of an indefinite franchise intended by a statute. And we may say in passing that it is inconceivable why, if the legislature intended to grant the franchise to the appellant, it should not have said so in plain words, instead of hiding its intention in such inapplicable terms. We are quite clear that the statute indicates no grantee of the franchise; that the grant is to any and every person who may choose to avail himself of it; that the franchise fails for want of a grantee; and that the grant is void for uncertainty. And we may be •permitted to say that, if the legislature had power to do it, it would be most unwise and dangerous to create franchises in so loose a manner, for any one to assume and relinquish at pleasure; to grant tolls upon a public highway to any person who should voluntarily • assume to spend his money in the improvement of it. Coxtrts have always been jealous of such grants, so loose and so liable to abuse, and we hope will always be so. By the Oowrt. — The judgment of the court below is affirmed.