State ex rel. Attorney Gen. v. Madison St. Ry. Co.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtORTON
Citation72 Wis. 612,40 N.W. 487
Decision Date08 November 1888
PartiesSTATE EX REL. ATTORNEY GENERAL v. MADISON STREET RY CO.

72 Wis. 612
40 N.W. 487

STATE EX REL. ATTORNEY GENERAL
v.
MADISON STREET RY CO.

Supreme Court of Wisconsin.

November 8, 1888.


Appeal from circuit court, Dane county; ALVA STEWART, Judge.

Action by the state of Wisconsin at the relation of Charles E. Estabrook, attorney general, against the Madison Street-Railway Company, to vacate its charter, and wind up its affairs. Demurrer to petition overruled, and defendant appeals.

[40 N.W. 487]

Gregory, Bird & Gregory, for appellant.


The municipal ordinance and acceptance thereof by defendant constitute a contract, whereby the city grants to the defendant certain privileges, in consideration of which the defendant agrees to perform the conditions mentioned in the ordinance. That such ordinances are simply contracts is held in the following and many other cases: Mayor, etc., v. Railroad Co., 49 N. Y. 657;City of Waterloo v. Railway Co., (Iowa,) 32 N. W. Rep. 329. So such licenses, when granted by ordinance of a city to a street railway, and accepted and acted upon by the railway, have been held to be contracts within the constitutional protection, and could not be rescinded by the subsequent act of such municipal corporation. People v. Railway Co., 18 Bradw. 125;State v. Railway Co., 85 Mo. 263, and see page 282; Quincy v. Bull, 106 Ill. 337;Burlington v. Railway Co., 49 Iowa, 144;Sims v. Railway Co., 37 Ohio St. 556;People v. Gas-Light Co., 38 Mich. 154.Quo warranto is an extraordinary remedy, and, if relief can be afforded in the ordinary form of civil actions, proceedings by quo warranto cannot be maintained. High, Extr. Rem. § 617; 5 Field, Briefs, § 158; People v. Turnpike Co., 2 Johns. 190;State v. Marlow, 15 Ohio St. 114. The acts of misuser or non-user must be touching matters which are of the essence of the contract between the sovereign and the corporation, and they must be willful and repeated. High, Extr. Rem. § 648; Com. v. Bank, 28 Pa. St. 383; Harris v. Railroad Co., 51 Miss. 602-608;State v. Turnpike Co., 2 Sneed, 254.

[40 N.W. 488]

C. E. Estabrook, Atty. Gen., ( R. G. Siebecker, City Atty., and Pinney & Sanborn, of counsel,) for respondent.


The common council, in passing the ordinance in question, by virtue of its delegated authority from the legislature, in conferring the franchise to use the streets, acted on behalf of the state as public officers, and not as agents of the local municipal corporation. The duty of protecting the public streets for public travel is a public, and not a corporate, duty. Schultz v. Milwaukee, 49 Wis. 259, 5 N. W. Rep. 342;Little v. Madison, 49 Wis. 605, 6 N. W. Rep. 249;Williams v. Yorkville, 59 Wis. 119, 17 N. W. Rep. 546. Public streets are for the public use, and the use is not the less for the public at large, as distinguished from the municipality, because they are situate within the limits of the latter, and because the legislature may have given the supervision and control of them to the local authorities. 2 Dill. Mun. Corp. § 655. The highways of a state include the streets of cities, and are under the permanent and primary control of the legislature, and the power of municipalities with respect thereto is entirely derived from the legislature. The city is simply the trustee of the public use. In laying down or raising the grade of streets, the city officials act, not as agents of the city, but as public officers. Kittredge v. City of Milwaukee, 26 Wis. 46-50. See Griggs v. Foote, 4 Allen, 195;Manners v. Haverhill, 135 Mass. 165;McCarthy v. Boston,Id. 197; People v. Auditors, 75 N. Y. 316;Transportation Co. v. Chicago, 99 U. S. 635;Smith v. Washington, 20 How. 135;People v. Road Co., 23 Wend. 193.“An information in the nature of quo warranto presented by the attorney general, acting ex officio, in behalf of the state, is the appropriate remedy in all cases of non-feasance or malfeasance, abuse of power, and misuse of privilege, by a corporation chartered by the state, and a judgment of ouster or seizure against the delinquent is the proper judgment thereon.” Reed v. Canal Corp., 65 Me. 132; Com. v. Turnpike Co., 5 Cush. 509, 11 Cush. 171; High, Extr. Rem. § 651 et seq.

ORTON, J.

This is an action brought by the attorney general in the circuit court, by leave of the court, for the purpose of vacating the charter, and annulling the existence of the defendant as a corporation, and for the purpose of having a receiver appointed, and of winding up its affairs. The defendant demurred to the complaint, and the demurrer was overruled, and from said order this appeal is taken. The material allegations of the complaint are, in substance, as follows: By an ordinance of the common council of the city of Madison, authority and permission was given to the defendant to lay and maintain, within certain streets of said city, a street railway, within certain specified times, in a good and substantial manner, and in accordance with the approved plans for the construction of any such road, and to obviate as far as possible...

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28 practice notes
  • Chi., St. P., M. & O. Ry. Co. v. Douglas Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 8, 1908
    ...College v. Woodward, 4 Wheat. (U. S.) 518, 4 L. Ed. 629;Pratt v. Brown, 3 Wis. 603;State ex rel. Atty. Gen. v. Madison S. R. Co., 72 Wis. 612, 40 N. W. 487, 1 L. R. A. 771;Stedman v. City of Berlin, 97 Wis. 505, 73 N. W. 57;Am. Smelting Co. v. Colorado, 204 U. S. 103, 27 Sup. Ct. 198, 51 L.......
  • Superior Water, Light & Power Co. v. City of Superior
    • United States
    • United States State Supreme Court of Wisconsin
    • January 11, 1921
    ...a legislative franchise as if it had been granted by an act of the Legislature. State ex rel. Attorney General v. Madison Street R. Co., 72 Wis. 612, 40 N. W. 487, 1 L. R. A. 771;State ex rel. Cream City R. Co. v. Hilbert, 72 Wis. 184, 39 N. W. 326;City of Ashland v. Wheeler, 88 Wis. 607, 6......
  • State v. Birmingham Waterworks Co.
    • United States
    • Alabama Supreme Court
    • November 25, 1913
    ...directly by its Legislature. Port of Mobile v. L. & N.R.R. Co., 84 Ala. 129, 4 So. 106, 5 Am.St.Rep. 342; State v. Railroad Co., 72 Wis. 612, 40 N.W. 487, 1 L.R.A. 771; State v. Railway Co., 140 Mo. 539, 41 S.W. 955, 38 L.R.A. 218, 62 Am.St.Rep. 742; San Antonio Trac. Co. v. Altgelt, 20......
  • State ex rel. Rose v. Superior Court of Milwaukee Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 27, 1900
    ...granting such corporate rights and franchises, “has the force and effect of a statute of the state.” State v. Madison St. R. Co., 72 Wis. 612, 40 N. W. 487;State v. Hilbert, 72 Wis. 184, 39 N. W. 326;State v. Janesville St. Ry. Co., 87 Wis. 78, 57 N. W. 970;City of Ashland v. Wheeler, 88 Wi......
  • Request a trial to view additional results
28 cases
  • Chi., St. P., M. & O. Ry. Co. v. Douglas Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 8, 1908
    ...College v. Woodward, 4 Wheat. (U. S.) 518, 4 L. Ed. 629;Pratt v. Brown, 3 Wis. 603;State ex rel. Atty. Gen. v. Madison S. R. Co., 72 Wis. 612, 40 N. W. 487, 1 L. R. A. 771;Stedman v. City of Berlin, 97 Wis. 505, 73 N. W. 57;Am. Smelting Co. v. Colorado, 204 U. S. 103, 27 Sup. Ct. 198, 51 L.......
  • Superior Water, Light & Power Co. v. City of Superior
    • United States
    • United States State Supreme Court of Wisconsin
    • January 11, 1921
    ...a legislative franchise as if it had been granted by an act of the Legislature. State ex rel. Attorney General v. Madison Street R. Co., 72 Wis. 612, 40 N. W. 487, 1 L. R. A. 771;State ex rel. Cream City R. Co. v. Hilbert, 72 Wis. 184, 39 N. W. 326;City of Ashland v. Wheeler, 88 Wis. 607, 6......
  • State v. Birmingham Waterworks Co.
    • United States
    • Alabama Supreme Court
    • November 25, 1913
    ...directly by its Legislature. Port of Mobile v. L. & N.R.R. Co., 84 Ala. 129, 4 So. 106, 5 Am.St.Rep. 342; State v. Railroad Co., 72 Wis. 612, 40 N.W. 487, 1 L.R.A. 771; State v. Railway Co., 140 Mo. 539, 41 S.W. 955, 38 L.R.A. 218, 62 Am.St.Rep. 742; San Antonio Trac. Co. v. Altgelt, 20......
  • State ex rel. Rose v. Superior Court of Milwaukee Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 27, 1900
    ...granting such corporate rights and franchises, “has the force and effect of a statute of the state.” State v. Madison St. R. Co., 72 Wis. 612, 40 N. W. 487;State v. Hilbert, 72 Wis. 184, 39 N. W. 326;State v. Janesville St. Ry. Co., 87 Wis. 78, 57 N. W. 970;City of Ashland v. Wheeler, 88 Wi......
  • Request a trial to view additional results

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