C., M. & St. P. Ry. Co. v. State

• Citation: 10 N.W. 560,53 Wis. 509
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 22 November 1881
• Parties: C., M. & ST. P. RY. CO. v. STATE OF WISCONSIN.

53 Wis. 509

10 N.W. 560

C., M. & ST. P. RY. CO.

v.STATE OF WISCONSIN.

Supreme Court of Wisconsin.

Filed November 22, 1881.

In the year 1871 the plaintiff company leased a short line of railway in this state of another company for 20 years, and has ever since operated the same. In 1880 the plaintiff purchased three other short lines of railway of other companies by which the same were built, and has ever since owned and operated such lines. The gross earnings of each of these lines of railroad for the year 1880 were less than $3,000 per mile, and of one of them less than $1,500 per mile. The gross earnings of all the lines of railroad of the plaintiff company in this state (including the above lines) exceeded $3,000 per mile in 1880. The license fee which the plaintiff would be required to pay for 1881, computed at 4 per cent. on the gross earnings of all its lines in this state in 1880, is over $14,000 more than it would be were it computed separately upon the gross earnings of the lines thus leased and purchased, without reference to the plaintiff's other lines. The license fee was computed by the state treasurer on the former basis, and the plaintiff was compelled to pay, and did pay, one-half the required amount in February, 1881, in order to obtain a license for that year to operate its railways. In August, 1881, the plaintiff paid to the state treasurer, on account of the balance of its license fee for that year, a sum less than it was required to pay in February preceding, and less than the state treasurer demanded, by a little more than $14,000. This alleged deficiency is the difference between the two modes of computing the license fee above mentioned. This action was brought in this court. The complaint states the facts in detail, of which the foregoing is a summary. The prayer for relief is as follows:

“ First, that this honorable court will adjudge and determine that only the sum of $240,931.44 was due from said plaintiff to the state for license to operate said several railroads for the calendar year from January 1 to December 31, 1881, and restrain the said state treasurer and attorney general from any and all proceedings to collect any amount for said licence in excess of said sums; second, that it will restrain all proceedings on the part of said state to collect the pecuniary penalty of $10,000, mentioned in section 1214, Rev. St., or from taking any proceedings to have the rights, privileges, and franchises of said plaintiff forfeited, as provided in said section; third, and that, until the final hearing of said cause, a preliminary order may be made restraining said treasurer and attorney general from instituting any proceedings or taking any action for the collection of said penalty of $10,000, or the forfeiture of the rights, privileges, and franchises of said plaintiff; fourth, for such further relief as may seem meet and proper in the premises.”

The attorney general demurred to the complaint, assigning as grounds of demurrer that it appears on the face thereof “(1) that the court has no jurisdiction of the person of the defendant or the subject of the action; (2) that the complaint does not state facts sufficient to constitute a cause of action.”John W. Cary, for plaintiff.

Alexander Wilson, Atty. Gen., for defendant.

LYON, J.

The constitution ordains that “the legislature shall direct by law in what manner and in what courts suits may be brought against the state.” Art. 4, § 27. It is provided by statute (Rev. St. 826, § 3200) that “it shall be competent for any person deeming himself aggrieved by the refusal of the legislature to allow any just claim against the state, to commence an action against the state by filing a complaint, setting forth fully and particularly the nature of such claim, with the clerk of the supreme court, either in term time or vacation.” Were this action otherwise within the statute, the complaint fails to aver a refusal by the...