Oleson v. Green Bay & Lake Pepin Railway Co.

Repeal oe Statutes : Railroad Aid. (1) Repeal by implication. (2, 3) Construction and effect of ch. 182, Laws of 1872, as to railroad aid. Constitutional Law: Railroad Aid. (4) Statutes authorizing towns to aid railroads, valid. 1. A statute which revises the whole subject-matter of a former statute, works a repeal thereof, without any express words of repeal. 2. Ch. 182, Laws of 1872 (relating to the grant of railroad aid by towns, etc.), provides (section 11) that “ 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 law of this state.'" Held, that the words “ other law of this state ” must be understood of other laws existing at the time of the passage of said ch. 182, as it was not within the power of one legislature to bind future legislatures by such a provision, and the subsequent passage of an act in conflict with it would operate as a repeal of said chapter pro tanto. 3. In view of the foregoing provision of the act of 1873, and the absenee of any express words of repeal therein, or other words showing it to he intended as a revision, abrogating all former laws relative to the voting of railroad aid by towns, etc.: Held, that said act did not repeal ch. 93, P. & L. Laws of 1867. 4 The constitutionality of acts like that of 1867, permitting counties, towns, etc., to subscribe for the capital stock of railroad companies, and to issue their bonds and levy taxes to pay for such stock, is no longer an open question in this court.

APPEAL from tbe Circuit Court for Trempealeau County. The town of Arcadia, in the county of Trempealeau, having voted aid to the amount of $50,000 to the defendant railway company, and the bonds of the town for that sum having been placed in the hands of the defendant Worthington, who was selected by the town and the railway company to hold the same in escrow until the company should perform certain agreed conditions, this action was brought to restrain the delivery and negotiation of such bonds, and to have them declared void and delivered up to the town for cancellation. The plaintiff is a voter and tax payer of that town, and attempted to bring the action as well in behalf of all other tax payers of Arcadia as on his own behalf. The question was made in the argument, whether he had succeeded in such attempt; but the court has not found it necessary to determine it. In August, 1872, the defendant railway company submitted a proposition to the town of Arcadia to issue to that town certificates for five hundred shares of its capital stock, of the par value of $50,000, in exchange for a like amount of the bonds of such town. The total valuation of taxable property in such town in the year 1871, as appears by the assessment roll of that year, was a trifle over $240,000. It is stated in such proposition, that it was made under ch. 93, P. & L. Laws of 1867; and, in form, it is in strict accordance with the requirements of that chapter. An election was thereupon called and held, and a vote of the electors of the town taken on the question of accepting or rejecting sucb proposition, which resulted in an acceptance of it by a vote of 143 to 80. It is conceded that these proceedings were all in strict accordance with the act of 1867, and that when the bonds were deposited with the defendant Worthington, the railway company also deposited with him, for the town, the certificates for its capital stock mentioned in the proposition, to a like amount, to be delivered to the town when the bonds should be earned by, and delivered to, the railway company. After this action was commenced, the company completed the performance of the conditions specified in the proposition, and, by the terms thereof, became entitled to the bonds. The circuit court held that the bonds were lawfully issued, and rendered judgment dismissing the complaint, with costs ; and the plaintiff appealed from that judgment. made the following, among other points: 1. The statute under which the defendants claim to have acted (ch. 93, P. & L. Laws of 1867), is a general law (13 Wis., 432 ; 9 id., 279 ; 11 id., 470 ; 14 id., 378 ; 3 id., 513), and as such is repealed by implication by a subsequent general law whose provisions are inconsistent with its own. 1 Ashm., 179 ; 11 Wend., 329 ; 10 id., 547 ; Howev. Starhweather, 17 Mass., 240. 2. Ch. 182, Laws of 1872, is such a statute, and repeals the former by implication. During previous sessions of the legislature, an immense number of bills had been passed authorizing, in many cases, the unlimited bonding of towns in aid of railroad enterprises ; and the object of the legislature in passing this act was, undoubtedly, both to establish a uniform rule upon the subject throughout the state, and, more especially, to limit the amount of indebtedness to be contracted by any town, so as to guard against the ruinous and hasty action of reckless majorities. The intent of the legislature should govern the construction of the statute; and the presumption is, where the design is not apparent, that they intended the most reasonable and beneficial construction. 9 Wheat., 881; 8 Cow., 89; 1 Pet., 64; 2 id., 662; 1 Mo., 147; 3 id!, 496; 15 Johns., 358; 3 Mass., 523; 4 id., 534, 537; 7 id., 523 ; 10 id., 235; 12 id., 383-5; 1 Pick., 248; 20 id., 267. 8. If the statute of 1872 docs not repeal the former in tolo, it must do so so far as they are repugnant, and as to such points the later statute must govern. 3 Mass., 17, 21; 1 Pick., 248, 254; id., 296; 8 id., 418; 10 id., 285; 2 Bailey, 41. It is conceded that the defendants have not complied with the provisions of the latter act. 4. The statute of 1867 is unconstitutional, in that the power of bonding is unlimited. The state itself is limited by constitutional provision in the amount of indebtedness to be incurred by it; and how can it, by its legislature, confer upon a fraction of the state a right which it does not itself possess? Though not a municipal corporation in the full sense of the term, a town is a quasi corporation, and would seem to come within the rule laid down in Foster v. City .of Kenosha, 12 Wis., 616. See Norton v. Peck, 8 id., 714. The law of 1867 is also in conflict with the constitutional provision requiring uniformity of town government. Const! of Wis., art. X, sec. 23. argued that plaintiff had shown no right to maintain the action ; first, for want of sufficient interest; and second, because he had shown no spe-. cial injury; citing numerous authorities upon both points. 2. The complaint states no equity for an injunction. If it does not show that the defense against the bonds is perfect at law, it at least wholly fails to show otherwise. There is no pretense that the bonds were issued under the law of 1872, and if, as claimed by the appellant, that statute repeals the act of 1867, the bonds arc void even in the hands of an innocent purchaser, for want of power to issue them. Rochester v. Alfred ■Bank, 13 Wis.,. 432, Marsh v. Fulton Co., 10 Wall., 676; 19 Wis., 280; Marshall Co. v. Cook, 38 Ill., 44; Steines v. Franklin County, -48 Mo., 167; Clay v. Nicholas County, 4 Bush (Ky„), 154. In order to make bonds, irregularly issued, valid in the bands of innocent purchasers, they must import or recite a compliance with a valid, subsisting law authorizing their issue, or be executed by public agents who are themselves vested with jurisdiction to decide upon the proper performance of the conditions precedent. Oomrri'rs of Knox Go. v. Aspin-wall, 21 How. (U. S.),545; Grand Ohute v. Winegar, 15 Wall., 855 ; Mercer County v. Hacket, 1 id., 83 ; St. Joseph Township v. Rogers, 16 id., 644. The complaint does not show the existence of either of these facts; and as the court cannot say that the bonds are not wholly void at law, equity will not interfere. 14 Wis., 618; 28 id., 593. 3. The act of 1867 is not repealed by that of 1872. It is not a general law, except in a limited sense, and upon the subject matter embraced in it must control or supersede all general legislation. Potter’s Dwarris on Stats.. 272-3; 17 Wis., 532; Johnston v. Hamburger, 13 id., 176; Mead v. Bagnall, 15 id., 156; 17 id., 253; 19 id., 55. Repeal by implication is not favored, but the doctrine is applied only when reconciliation is impossible. Atl'y General v. Brown, 1 Wis., 513. Not only does the law of 1872 fail to repeal the former act by express words, but it expressly recognizes its existence, differing in this respect from Kellogg v. Oshkosh, 14 Wis., 623 ; Burlander v. R. R. Go., 26 id., 76 ; and Howe v. Starkweather, 17 Mass., 240. Where the language of a statute is plain, it is unnecessary to look outside of it to determine the intent of the legislature. State v. Gram, 16 Wis., 343. The effect of the law of 1872 was simply to provide a new mode of procedure in bonding of towns, and to exclude those who adopted its provisions from the benefits of any former acts. This did not annul the former act. Goodrich v. Mil? waukee, 24 Wis., 422; Meek v. Pierce, 19 id., 300. 4. Conceding that the act of 1867 is in any way^ affected by that of 1872, the bonds are yet valid; for both they and all proceedings precedent to their issue have been ratified and confirmed by chaps. 289 and 218, Laws of 1873, both passed before the commencement of this action. As to the power of the legislature to do this, see Campbell v. Kenosha, 5 Wall., 194; Fish v. Keno-sha, 26 Wis., 33; St. Joseph v. Rogers, 16 Wall., 644; Steines v. Franklin County, 48 Mo., 167; Dillon on Corp., 412, note.