City of Madison v. S. Wis. Ry. Co.

• Citation: 156 Wis. 352,146 N.W. 492
• Parties: CITY OF MADISON v. SOUTHERN WISCONSIN RY. CO.
• Decision Date: 17 March 1914
• Court: United States State Supreme Court of Wisconsin

156 Wis. 352

146 N.W. 492

CITY OF MADISON

v.SOUTHERN WISCONSIN RY. CO.

Supreme Court of Wisconsin.

March 17, 1914.

Syllabus by the Judge.

In general, a statute covering the subject-matter of a former enactment repeals it.

Whether an entire statute was impliedly repealed by a later one covering, in general, the same subject is a matter of legislative intention.

Repeals by implication are not favored and so an earlier enactment is not deemed repealed by a later one, unless the two cannot reasonably consist with each other.

Where a revision of an earlier law expressly repeals all prior acts and parts of acts inconsistent therewith, a purpose appears to retain such parts of the former as are not clearly repugnant to the latter.

The last rule restricts the first but does not save a substantial characteristic of the earlier enactment, omitted from the later one; the earlier enactment, thus characterized, and the later one, not so featured, are, in general, to be regarded as inconsistent and the former as falling under the fourth rule.

A statute obviously intended to supersede an earlier enactment, so supersedes, without any express repeal, thus annulling any particular provision of the later not incorporated into the former.

The stated rules for statutory construction are general, in respect to the situation to which they respectively apply, but are subservient to the supreme rule that the purpose of the legislature should be vitalized by judicial construction when it can be discovered from the whole enactment, by itself, or in connection with others or any circumstances characterizing it,--the intention being regarded as matter of fact, determinable by evidentiary rules and circumstances.

In case of a city ordinance being ambiguous, in that, read literally, or from some permissible viewpoint, the legislative body evinced gross carelessness in conserving the public interests, it is to be presumed there was no such purpose, and that should prevail if, by any reasonable construction, a cast can be given to the enactment consistent with due care.

In case of a superseding street railway ordinance which is complete in itself, but omitting features of the former ordinance which characterized it as a whole or containing new features, giving significant cast thereto, with a repealing clause as in rule 3, the words “all acts” should, ordinarily, be regarded as not limited by the words “parts of acts.”

In general, in case of a public utility franchise being reasonably susceptible of two meanings, giving rise to uncertainty as to which was intended, the language used should be construed favorably to the public interests.

In case of a superseding street railway franchise, granted by a common council, containing a condition burdening the grantee to keep the railway zone “in proper repair” and “in proper order and cleanliness” in the words of the original franchise, but omitting a particular condition of the latter, common to such franchises, burdening the grantee with the duty to pave and repave, as needed, the street within the railway zone; but framed so as, in the whole, to clearly evidence a purpose to burden the grantee with responsibility for the proper condition of the railway zone, the words “proper repair” and “proper order” should be given the broad meaning of including pave and repaving, where “proper repair” and “proper order” would reasonably call therefor in the judgment of the governing body of the grantor.

A franchise duty, imposed on a street railway company to keep its railway zone in “proper order,” is a continuing obligation, including duty to conform the character of the railway zone to the physical condition of the street outside thereof, as such condition, in the judgment of the governing body of the grantee, may from time to time be changed to accommodate the needs of the people.

A legal principle having been developed and declared in general, it applies to all situations within its scope, and is not limited to the particular situation suggesting it. The rule for the future is a part of the unwritten law which rests in principles, not merely in cases referred to for illustration.

The omission from a street railway franchise of a specific requirement of the old grant requiring the grantee to pave and repave the railway zone, as needed in the judgment of the grantee, but retaining the former requirement to keep the railway zone in “proper repair” and “proper order” and adding a new feature expressly making the grant “subject to such reasonable rules and regulations respecting the streets and highways as such council may from time to time enact,” should be regarded as clearly intending to burden the grantee with the duty of keeping the railway zone in such condition as the grantor may reasonably require, changing the physical condition, from time to time, to that end.

A street railway company franchise granted upon the conditions mentioned, emphasizing the duty of the grantee under section 1862 of the Statutes, should be construed in the light of State ex rel. Atty. Gen. v. Madison, 72 Wis. 612, 40 N. W. 487, 1 L. R. A. 771, as reserving to the grantor authority to make regulations, from time to time, as regards paving and repaving the railway zone.

The term “regulation,” as used in respect to the police power, is very comprehensive, extending to requirements as to creation of physical conditions and of preserving the same and of creating other conditions from time to time.

The term “reasonable rules and regulations” of “the highway as the council may from time to time enact,” when used in a street railway franchise and as used, in effect, in the statute, § 1862, should be construed with regard to the broad comprehensive meaning of the term regulation, the length of such a grant, the probable necessity for changes, from time to time, in the structural character of streets, the importance of absence of divided responsibility for the physical condition of the railway zone and all other characterizing circumstances.

A municipality, with the broad powers of regulation as regards streets, may make reasonable regulations burdening a public utility using the street with the duty to make, at its own expense, reasonable changes in the physical condition of the zone so used, irrespective of anything contained in the public utility franchise, and this broad power, it is under disability to contract away.

Appeal from a Judgment of the Circuit Court for Dane County; E. Ray Stevens, Judge. Affirmed.

Barnes, J., dissenting.

Action to recover of defendant the cost of paving that portion of a street between its railway tracks and one foot outside the rails.

The question was whether defendant's franchise required it to bear the expense of the pavement in the particular region. From the time of its organization up to 1892, defendant operated under a franchise containing the following provision:

“Section 3. Whenever any street upon which any of said tracks may be located shall hereafter be paved or macadamized, the said railway company shall pave or macadamize the roadbed between and one foot on either side on the outside of the rails of the track of their said road, and shall at all times make and keep the track between and one foot on either side on the outside of the rails thereof equally as good as the streets shall be outside of their tracks, and shall correspond in surface and improvements with said street outside of said track.”

That franchise was in existence when the paving in question was done unless repealed by a franchise granted defendant in 1892 under which it was operating when such work was done. The new franchise was complete, in itself, being so framed as to cover all features of street railway construction, maintenance and operation. It was granted to authorize displacement of the old horse car system by a modern electric system, and contained this repealing language:

“All ordinances or portions thereof heretofore adopted which conflict with the provisions of this ordinance are hereby repealed.”

The new franchise, in general, was worded the same as the old one with such changes as would make it adaptable to the use of electricity as a motive power. It differed in sufficient respects to be, as a whole, in conflict with the old franchise, though by far the greater part was substantially a re-enactment of the existing ordinance. The provision before quoted from the old franchise with reference to paving between the tracks was not carried into the new one. The language of the old franchise preceding the particular clause, and the language following, were substantially reproduced in the new one leaving the particular clause wholly absent from the latter. The remaining language which, without material difference, is common to both franchises, is as follows:

“(b) It shall be the duty of said company to repair any and all damages done to the streets, macadamized curbs, cross or sidewalks, gutters or other public or private property by the construction or repairing of the tracks along the streets as herein provided for; and further to protect and save harmless the City of Madison against all claims for damages arising from the construction, operation or management of the railway provided for herein.”

In 1910 the common council of plaintiff, by due proceedings, determined to pave University Avenue between Charter Street and Park Street with asphalt on a concrete foundation, and by ordinance passed June 10, 1910, ordered the defendant to likewise pave that portion of the street between its tracks and for one foot outside its rails. Defendant denied liability in that regard. Whereupon it was agreed that plaintiff should incur the expense of paving the entire street and then test its claim against the defendant by an action to recover the reasonable value of the work done within the railway zone. Such proceedings were duly had pursuant thereto that judgment was recovered against defendant for...