State ex rel. Bell v. Harshaw

• Decision Date: 18 March 1890
• Parties: STATE EX REL. BELL v. HARSHAW, TREASURER, ET AL.
• Court: Wisconsin Supreme Court

76 Wis. 230

45 N.W. 308

STATE EX REL. BELL

v.HARSHAW, TREASURER, ET AL.

Supreme Court of Wisconsin.

March 18, 1890.

This is an application on behalf of the counties of Bayfield and Burnett for a writ of mandamus to compel the apportionment and payment of $47,207.09, now in the hands of the state treasurer, pursuant to chapter 22, Laws 1879. The relation alleges, in effect, the acts of congress of June 3, 1856, and May 5, 1864, granting to this state a large quantity of public lands to aid in the construction of a railroad from the St. Croix river or lake to the west end of Lake Superior and Bayfield, upon conditions specified in said acts; that by chapter 126, Laws 1874, the legislature of this state, for the purpose of aiding in the construction of said road, granted to the North Wisconsin Railway Company all the right, title, and interest which said state then had, or which it might thereafter acquire, in and to all of said lands applicable to said line of road, upon the performance of the conditions therein prescribed. The relation then sets out in full said chapter 22 of the Laws of 1879, which went into effect February 21, 1879, and further alleges, in effect, that May 25, 1880, articles of consolidation by and between said North Wisconsin Railway Company and the Chicago, St. Paul & Minneapolis Railway Company, a corporation then duly organized and existing under the laws of Wisconsin, were executed and recorded as required by law, by which articles there was created and incorporated pursuant to the laws of this state, and has ever since continued to exist, a new corporation, under the name of the “Chicago, St. Paul, Minneapolis & Omaha Railway Company,” and which, for convenience, will be hereafter called the “Omaha Company;” that by said articles of consolidation and incorporation the Omaha Company thereupon became, and ever since has been and now is, the successor, owner, and entitled to the possession, of all the property, franchises, rights, powers, privileges, and immunities, including all exemptions from fees and taxes, which had been provided by law, acquired by, granted to, or was at the time of said consolidation owned by, its predecessors; that said North Wisconsin Railway Company duly accepted all the terms and conditions contained in both the acts mentioned, and began within the proper time the construction of said railroad, and its successor continued such construction, as provided by said acts, until December 3, 1883, when the same was fully completed and duly accepted by the state; that from time to time during the progress of and subsequent to the completion of said railway, upon due proof of the compliance of said North Wisconsin Railway Company and its successor with the terms of said laws, the governor of the state caused to be issued to said last-named company and its said successor proper patents to said lands; that a large amount thereof was so patented in each of the years 1874 and 1875, and each of the years 1880 to 1885, inclusive; that said North Wisconsin Railway Company and its said successor have in all things fully performed and fulfilled, or are ready and willing to do so, all the provisions of said laws, and each of them, on their part; that the North Wisconsin Railway Company and its said successor have from year to year, since the passage of said chapter 22, made a report of its gross earnings for the preceding year, paid to the state treasurer the 5 per centum thereof, and prepared and filed with the state treasurer and the several county treasurers the list of exempt lands, at the times and in the manner prescribed by sections 6 and 7 of said act; that during 1889 the said Omaha Company, as such successor, has paid to the state treasurer the sum of $47,207.09 as a 5 per centum of the gross earnings of its Northern Division, for the respective months of the year 1888, aggregating $944,141.77, as required by said chapter 22, and no other act, and the same was known to said treasurer at the time, and that he receipted for one-half the amount thereof February 9, 1889, and the other half thereof August 5, 1889; that, on the gross earnings of the other divisions of said Omaha Company's road for 1888, it paid at the same time, to said state treasurer, a 4 per centum license fee, as provided in sections 1211-1213, Rev. St.; that said Omaha Company, as such successor, was, August 1, 1889, the owner, under patents from the state issued since 1880, of 163, 186 acres of land, the larger portion of which was situated in said counties of Bayfield and Burnett. The relation also shows the number of acres exempt under said chapter 22, each year since its passage, the names of the counties within which they are situated, and the amount apportioned to each of said counties for each of said years pursuant to that chapter. It is also therein alleged, in effect, that by the terms of said chapter 22 it became and was the duty of said state treasurer, upon the receipt of said list or statement of exempt lands for 1889, to apportion the said $47,207.09 among said several counties upon the basis of the total acreage of land so exempt, and thereupon transmit, before September 15, 1889, to the county treasurer of each county in which such exempt lands are situated, the amount to which such county was, upon said basis, entitled; that, disregarding his said duty, in violation of said chapter 22, said state treasurer, upon receiving said list, refused and neglected, and still refuses and neglects, to either apportion or pay over to any or either of said counties the amount mentioned, or any part thereof; that the several counties named in which such exempt lands are or were situated have fully observed the provisions of said law; that subsequent to September 15, 1889, and prior to the regular annual meeting, in November, of the several county boards of said counties, due demand was made on said state treasurer that he apportion and pay over said sum to said several counties in the manner provided in said chapter 22, but that he refused, and still does refuse, to so apportion or pay over said sum, or any part thereof; that among the reasons given by said state treasurer for such refusal is that said chapter 22 expired by its own limitation February 21, 1889, and that said counties have no right or interest in the sum named, or any part thereof.

To such relation the said Harshaw made return as required by law, which return consisted largely of admissions, and among other things admitted, in effect, that said North Wisconsin Railway Company and its successor has since the passage of said chapter 22 made report of its gross earnings for the preceding year, and paid to such treasurer 5 per centum of said earnings upon its Northern Division, now owned and occupied by the Omaha Company, and that said 5 per centum of its gross earnings for the year 1889 amounted to the sum stated, and that said sum was received by him from said company; but he expressly therein denies, in effect, that said amount was paid by said Omaha Company or received by said state treasurer as and for said 5 per centum provided by said chapter 22, and alleges, in effect, that said moneys were paid at the same time with the other license fees referred to in the relation, and received from said company, and, in a gross sum, was transmitted to said treasurer, he receiving the same, and the whole thereof, as a license fee for the operation of all the lines of said Omaha Company in Wisconsin; that in the year 1879, and after the passage of said chapter 22, and on or before August 15, 1889, the said North Wisconsin Railway Company duly prepared and filed in the office of the state treasurer a list of all lands for which they had received patents which were exempt under the provisions of said chapter 22, showing the location of such lands as were located in the counties of Barrow, Burnett, Polk, and St. Croix, and that said company paid to the state treasurer during the year 1879, and on or before August 10, 1879, a sum of money equal to 5 per centum of the gross earnings received by said company, as shown by its record then on file in the office of said treasurer, and that the said moneys received were apportioned between the above-named counties, and duly transmitted and paid to them, the amounts paid each of said counties appearing upon Exhibit D, attached to said relation; that said North Wisconsin Railway Company and the said Omaha Company, as its successor, have for each year subsequent to 1879, up to and including 1888, duly filed said list of exempt lands, and paid to the treasurer of the state the sum of 5 per centum upon the gross earnings of the North Wisconsin Railway Company, now known as the “Northern Division,” and that the amount received during said years, respectively, from said company or companies, has been duly apportioned between the counties in which said lands were located, as shown by said Exhibit D; that the Omaha Company duly filed the list of lands before August 15, 1889, showing the location of lands still held by it, being the number of acres and in the counties as shown by said Exhibit D, but that said treasurer has refused to apportion the amount of license fee paid by said...