Tewksbury v. Schulenberg

LyoN, J. The only grounds upon which a complaint can be successfully demurred to, are those specified in the statute (E. S., ch. 125, sec. 5); and a demand for greater or different relief than the averments of the complaint show the plaintiff entitled to,- is not specified as one of the grounds of demurrer. Yoorhies’ Code (ed. of 1871), 201, note <?, and cases cited. Hence a demurrer does not lie to a demand for judgment, and it was so held in State ex rel. Mitchell v. Smith, 14 Wis., 564. That portion of the demurrer which attacks the plaintiff’s right to a lien on the logs goes only to the relief demanded, and is, therefore, not well taken. We cannot properly determine on this appeal whether the complaint shows that the plaintiff has or has not such right. If the complaint states facts which show that the plaintiff is entitled to recover the tolls claimed, although it may fail to show that he is entitled to the lien demanded, it states a cause of action, and the demurrer thereto was properly overruled. This brings us to the question, Does it appear from the averments in the complaint, that the plaintiff is entitled to recover such tolls? The question will be consideréd on the hypotheses (which are favorable to the defendants) that the plaintiff’s right of action depends entirely upon the acts — 593 — of 1874 and 1876, and that tlie stream across which, the dams of the plaintiff are maintained, is navigable in fact. Starting from the propositions thus assumed, the learned counsel for the defendants argue that the acts are unconstitutional, in that (as it is claimed) they hare not for their object the improvement of the stream by furnishing increased facilities for navigating it, but that the authority conferred upon the plaintiff in those acts to erect dams upon the stream and collect tolls from the owners of passing logs was given for the private gain of the plaintiff and his assigns, and not to improve navigation. At the same time counsel admit that the legislature may authorize the construction and maintenance of dams upon navigable streams for the improvement of the navigability of such streams, and may authorize the persons or corporations constructing or maintaining such dams to collect reasonable tolls for the increased facilities thus furnished for travel and transportation. It is not denied that the tolls authorized by the acts are reasonable, if the acts are valid. If the acts under consideration are of the character claimed — if they were enacted merely to promote private interests, and not to improve the facilities for transportation on the highway by water therein named, • — ■ they cannot be upheld as valid laws. But they are valid if it can be reasonably inferred from all their provisions that the improvement of navigation was their primary and principal object. No express declaration in the acts that such was the object and purpose of the legislature in enacting them, is required; nor is such a declaration usual in acts of a similar nature. In examining these acts, we take notice of the fact that the capacity of many small navigable streams in this state to float logs and lumber into the larger streams below and to market, has been greatly increased by the erection of dams across them to hold or discharge the water as circumstances may require. The legislature has authorized the construction of such dams in numerous instances, and no doubt because there was a ne — 594 — cessity for increased facilities to move the products of our forests to market. Looking into the acts under consideration, we find that the plaintiff is required to build suitable slides in his dams for running logs, etc., over the same; to keep them in repair; to keep them open when the! stream is at a “ driving stage,” and there are logs, timber and lumber to be run — unless it shall be necessary to hold the water back for the purpose of Hooding or. driving logs, etc., below the dams; and to maintain suitable flood-gates for the latter purpose. (Sec. 2.) In view of the frequent necessity for such dams in the great lumber regions of the state, already mentioned, and in view of the further fact that no other use of the dams and water is mentioned in the acts, we have little difficulty in holding that acts which so carefully provide for protecting and- aiding the only kind of transportation to which such streams are adapted, must have been enacted for the purpose of improving and increasing the capacity of the streams as public highways. But were there any doubt of the legislative purpose, it is removed by the language of sec. 4, as amended, which gives tolls on logs passing over the slides or dri/ven hy the aid, of sueh dam or dams, as compensation for keeping up the dams. This language clearly shows that the legislature regarded the dams, slides, gates, etc., as important and necessary aids to the navigation of the stream, and authorized their erection and maintenance with that view and for that purpose. We conclude, therefore, that the acts under which the plaintiff^ dams were erected and are maintained, do not contravene any provision of the constitution, and are valid laws. But it is further argued on behalf of the defendants, that, conceding the right of the plaintiff at one time to collect tolls on logs passing over or through his dams, such right has been modified by a subsequent act, to wit, ch. 296, laws of 1876, which, it is claimed, only gives him the right to collect tolls after the logs have been scaled by an inspector helovj the St. — 595 — Croix boom, while the averment in the complaint is that the logs in question were run into the St. Croix boom, and there is no averment that they were ever run or scaled below that boom. The act referred to is ch. 296, Laws of 1876,'' amending certain sections of ch. 299 of 1875. Sec. 1 of the original act requires all persons who shall cut or manufacture logs and lumber in the fourth district (which includes Barron county), to file with the lumber inspector of that distinct an accurate description of their several marks upon such logs. Sec. 2 provides that any person so required to file a description of his mark, who shall fail to do so, shall be guilty of a misdemeanor, and on conviction thereof shall be punished, etc. The act of 1876 extends the provisions of sec. 1 of the original act to corporations, and of sec. 2 to the officers or agents of corporations. Sec. 2 was further amended by the act of 1876 by inserting therein the provision upon which counsel rely. The whole amended section is as follows: “Any person or officer or agent of any corporation who shall hereafter cut and manufacture logs and lumber in said fourth district, and shall neglect or refuse to comply with the requirements of this act in violation with filing * of the description of said marks, as set forth in the preceding section, is hereby declared to be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than twenty-five dollars, nor more than one hundred dollars, of which offense justices of the peace shall have concurrent jurisdiction with the circuit court; and no chartered dam company or log-driving association, or chartered log-driving company, in said fourth district, shall have any right to collect any tolls, either for sluicing or log-driving, unless the logs so sluiced or driven shall have been scaled by the inspector of logs and lumber of said fourth — 596 — district, or by bis deputies, and all logs so sluiced or driven shall be scaled below the St. Croix boom,, in Lake St. Croix, and such scale shall be the basis upon which such chartered dam companies, log-driving associations and log-driving companies shall collect their tolls and fees.” It will be seen that the legislature, in enacting the amend-atory act, had under consideration the distinction between persons and corporations, and carefully framed the amendments to the original act with reference to that distinction. The original act in terms imposed a duty, and inflicted a penalty for nonperformance of such duty, upon persons alone. The amendatory act extended the duty to corporations, and the penalty to their officers and agents. The terms “ persons ” and “corporations” were not confounded, and neither was employed in a sense that included the other. Because the legislature thus employed those terms in the amendment to sec. 1 and in the first amendment to sec. 2 of the original act, it cannot reasonably be presumed that in the second amendment to the latter section (which is the provision under consideration), they disregarded the distinction before observed, and employed the terms “ chartered dam company or log-driving association, or chartered log-driving company,” as including an individual to whom had been given the right to erect and maintain a dam. Had the legislature so intended, it is' very apparent that the word person would have been employed, as in the other amendments. Neither does the statutory rule of construction invoked for that purpose aid the construction contended for. Such rule is, that the word “person” may extend and be apjfiied to bodies politic and corporate, as well as to individuals. R. S., ch. 5, sec. 12. But it is not enacted, and (so far as we are advised) has not been held, that the terms “ bodies politic or corporate,” or “corporations,” must necessarily extend and be applied to individuals. The foregoing observations dispose of all the objections — 597 — taken to tke complaint. "We conclude that tke complaint states facts sufficient to constitute a cause of action. By the Court. — Order affirmed.