The Yellow River Imp. Co. v. Arnold
| Decision Date | 01 January 1879 |
| Parties | THE YELLOW RIVER IMPROVEMENT COMPANY v. ARNOLD |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Juneau County.
The defendant appealed from a judgment in favor of the plaintiff. The case is fully stated in the opinion.
Judgment affirmed.
For the appellant, there was a brief by John Turner, his attorney with L. S. Dixon, of counsel, and oral argument by Mr. Dixon. They argued the following, among other points: 1. Plaintiff bases its claim upon the acts amendatory of its charter. The first of these, ch. 398 of 1868, is entitled "An act to amend ch. 170 of the private and local laws of 1857, entitled 'An act to incorporate the Yellow River Improvement Company,' approved March 2, 1857." Secs. 2-7 purport to confer on said company powers, privileges and franchises of the same kind, and to be exercised in the same manner and to the same extent, as those then and theretofore possessed and exercised by the Yellow River Log-Driving Association under ch. 131, P. & L. Laws of 1864, and its amendments. The franchises thus attempted to be conferred upon the Yellow River Improvement Company are enacted as new and independent provisions of its charter, although copied literally from the then existing charter of said Log-Driving Association. The 8th section purports to repeal the original charter of the Yellow River Log-Driving Association, and the several subsequent acts amendatory thereof. This act of 1868 contravenes sec. 18, art. IV of the state constitution, which declares that "no private or local bill . . . . shall embrace more than one subject, and that shall be expressed in the title." It embraced two subjects: one expressed in the title, i. e., the amendment of the charter of the Yellow River Improvement Company; the other not so expressed, to wit, the repeal of the charter of the Yellow River Log-Driving Association. These were distinct subjects of a private or local nature, which could not have been embraced in one bill, even if both had been expressed in its title. The charter of each corporation was a separate local subject of legislation; and the business in which each could engage under the franchises conferred upon it, was distinct and separate from that of the other. The business of driving sorting, hauling, sacking and delivering logs and lumber upon a river is as disconnected from that of improving the navigation of the river, as the running of a line of boats upon a canal, or a line of stages upon a turnpike, from that of constructing the canal or turnpike. Two corporations for these objects could no more be created by a single bill, under the constitution, although both subjects were properly expressed in the title, than could a railroad company and an insurance company, or a banking corporation and a manufacturing corporation. And as both could not be created by a single bill, so, after both had been constitutionally created, neither could be destroyed, or its franchises modified or repealed, by a bill professing to operate upon both. The charter of the Log-Driving Association could be repealed only by a bill introduced for that purpose and expressing that as its subject in the title. The bill in question expressed no such subject in its title, but another and entirely different one, to which it also pertained; and it was therefore doubly obnoxious to constitutional objection. It was as if, under a bill to amend the charter of the Chicago, Milwaukee & St. Paul Railway Company, and so entitled, the legislature should insert a section repealing the charter of the Chicago & Northwestern Railway Company; or as if, in a bill to amend the charter of an insurance company, and so entitled, it should attempt to repeal the charter of a bank. To the point that the charters in question were private and local, or certainly local laws, within the meaning of the constitution, counsel cited People v. Supervisors, 43 N. Y., 10; People v. O'Brien, 38 id., 193; Gaskin v. Meek, 42 id., 186; People v. Hills, 35 id., 449; People v. Denahy, 20 Mich., 349; Durkee v. Janesville, 26 Wis. 697; Phillips v. Town of Albany, 28 id., 340; Mills v. Charleton, 29 id., 400; Evans v. Sharp, id., 564; Single v. Supervisors, 38 id., 363. 2. The act of 1868 being void, those of 1869 and 1871, purporting to be amendments of it, must fall with it. Such amendments cannot give validity to the original act, both because that was not the legislative intent, and because the legislature had no power thus to evade the constitution. Barden v. Supervisors, 33 Wis. 445, 449; Town of South Ottawa v. Perkins, 94 U.S., 260, 270, 271. 3. Acts passed in violation of this constitutional provision are utterly void, and no part of them can be sustained for any purpose. But if that were otherwise, still secs. 2-7 of the act were undoubtedly enacted upon the supposition that sec. 8 was valid as a repeal of the charter of the Log-Driving Association. The legislature could not have intended to confer upon two corporations precisely the same franchises, where the exercise of the one would necessarily destroy the exercise of the other. In such a case, were the legislature to attempt a second grant where one already existed, it would seem that such second grant must fail for want of power to make it. Sellers v. Union Lumbering Co., 39 Wis. 525. But, however that might be, it is obvious that the legislature intended nothing of the kind here, and the act must fail upon the principle established by Slauson v. Racine, 13 Wis. 398; Lynch v. Steamer "Economy," 27 id., 69; State ex rel. Walsh v. Dousman, 28 id., 541. 4. As to the third item of plaintiff's demand, which is for tolls on logs, the only remedy given for their collection was that specified in sec. 5, ch. 170, P. & L. Laws of 1857, which was by seizure of the logs by process of attachment, and the holding of the same by such process until the tolls were paid. The statute gives no lien for the tolls, no right of action to be proceeded in to judgment, and no authority for the sale of the property seized. 5. There was no statute giving a lien for the $ 153 demanded for labor performed on the east branch. 6. The judgment includes $ 1,201, balance of old accounts against the defendant, the lien for which (if any ever existed) had been lost by the lapse of time and neglect to file petition, etc. It appeared on the face of the account rendered to defendant, and produced and proved before the court, of which this item of $ 1,201 formed a part, that the supplies furnished by defendant, the wages paid to men employed by him, and the orders paid by him, in aid of the drive of 1876, had never been applied by plaintiff in payment of this balance of the old account, as alleged by plaintiff. Not only was there no evidence of any attempt to make such application, but it was incompetent for plaintiff to make it. The evidence shows that the invariable custom and mode of doing business between the company and the owners of logs was to credit such owner with the supplies and men furnished and orders paid, against the expenses of the drive for which they were furnished and paid. And so the defendant in this case was credited in fact, as appears on the face of the account sued upon. Moreover, the plaintiff having made no application, defendant was entitled to have the application made to that part of the account for which plaintiff had a lien. 1 Bouv. Inst., sec. 834, and cases there cited.
For the respondent, there were briefs by Winsor & Veeder, its attorneys, with G. C. Prentiss, of counsel, and oral argument by Mr. Veeder and Mr. Prentiss. They contended, among other things, 1. That the act of 1868 does not embrace more than one subject, and that is sufficiently expressed in the title. Had the provisions of that and subsequent amendatory acts been embraced in the original act of 1857, it could not have been thought that incongruous subjects had been grouped in one law. The evidence shows that the stockholders in the plaintiff company and those of the Log-Driving Association were the same. The operative powers of the association were transferred to the plaintiff company, and the useless charter of the association was thereupon repealed. The addition to an act, of a provision which declares all acts and parts of acts conflicting with it to be repealed, does not add another subject to the law, and so render it unconstitutional. State v. Supervisors, 2 Pinney, 552; Phillips v. Town of Albany, 28 Wis. 340; Mills v. Charleton, 29 id., 400; Evans v. Sharp, id., 564; Lawson v. M. & N. Railway Co., 30 id., 597; Gabbert v. Jeffersonville R. R. Co., 11 Ind., 365; Guilford v. Cornell, 18 Barb., 615; Cooley on Con. Lim., 143. 2. That ch. 398 of 1868 is not a private or local law within the meaning of sec. 18, art. IV of the constitution. The act of 1857, to which it is an amendment, is declared by one of its own provisions to be a public act; and this declaration of the legislature is entitled to great weight. Moreover, the provisions of the law involve public interests of such magnitude as to give it the character of a public act. State ex rel. Cothren v. Lean, 9 Wis. 286; Clark v. Janesville, 10 id., 135; State ex rel. Voight v. Hoeflinger, 31 id., 257; W. R. Imp. Co. v. Manson, 43 id., 255. 3. That defendant had admitted that judgment must go against him for the whole amount of the demand, in case plaintiff had a lien for any sum.
[Counsel on both sides discussed the questions, whether defendant was estopped from denying plaintiff's corporate powers and franchises; and whether, where an association of persons has in fact exercised corporate powers, the existence of such corporation can be inquired into by any other person than the government.]
This action was brought by the...
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