Wis. River Improvement Co. v. Pier

• Citation: 118 N.W. 857,137 Wis. 325
• Parties: WISCONSIN RIVER IMPROVEMENT CO. v. PIER ET AL.
• Decision Date: 15 December 1908
• Court: United States State Supreme Court of Wisconsin

137 Wis. 325

118 N.W. 857

WISCONSIN RIVER IMPROVEMENT CO.

v.PIER ET AL.

Supreme Court of Wisconsin.

Dec. 15, 1908.

Appeal from Superior Court, Lincoln County; Almon A. Helms, Judge.

Condemnation proceedings by the Wisconsin River Improvement Company against Kate Pier and others. From an order refusing to vacate an order appointing commissioners, defendants appeal. Affirmed.

Among other references upon the part of the appellants were the following: Powers v. Bears, 12 Wis. 213, 78 Am. Dec. 733;State v. Hogue, 71 Wis. 384, 36 N. W. 860;W. U. R. R. Co. v. Dickson, 30 Wis. 389;Town of Eaton v. Williams, 51 Wis. 99, 7 N. W. 838;Baker v. State, 56 Wis. 568, 14 N. W. 718;Yellow River I. Co. v. Arnold, 46 Wis. 214, 49 N. W. 971;Verges v. Milwaukee County, 116 Wis. 191, 93 N. W. 44;State ex rel. v. Van Huse, 120 Wis. 15, 97 N. W. 503;Priewe v. W. S. L. & I. Co., 93 Wis. 534, 67 N. W. 918, 33 L. R. A. 645;In re Theresa D. D., 90 Wis. 301, 63 N. W. 288;Atty. Gen. v. Eau Claire, 37 Wis. 400;Maginnis v. Knickerbocker I. Co., 112 Wis. 385, 88 N. W. 300, 69 L. R. A. 833; section 1777a, St. 1898; Wisconsin W. Co. v. Winans, 85 Wis. 26, 54 N. W. 1003, 20 L. R. A. 662, 39 Am. St. Rep. 813.

Among other references upon the part of the respondent were the following: Wis. Cent. Ry. Co. v. Cornell University, 49 Wis. 162, 5 N. W. 331;In re Fleming's Petition, 16 Wis. 71; In re Incorporation of North Milwaukee, 93 Wis. 616, 67 N. W. 1033, 33 L. R. A. 638;Atty. Gen. v. W. Wis. Ry. Co., 36 Wis. 466;Black River I. Co. v. Holway, 87 Wis 584, 59 N. W. 126;Diana S. Club v. Lamoreux, 114 Wis. 44, 89 N. W. 880, 91 Am. St. Rep. 898;Linden L. Co. v. T. M. E. R. & L. Co., 107 Wis. 493, 83 N. W. 851;Pratt v. Brown, 3 Wis. 603;Mills v. Charleton, 29 Wis. 400, 9 Am. Rep. 578;Nazro v. Insurance Co., 14 Wis. 295; C. & N. W. Ry. Co. v. Morehouse, 112 Wis. 1, 87 N. W. 849, 56 L. R. A. 240, 88 Am. St. Rep. 918; Lewis, Em. Domain, § 166; Kuehn v. Neroz, 131 Wis. 610, 111 N. W. 724.Caroline H. Roemer and Quarles, Spence & Quarles (George Lines, of counsel), for appellants.

Smart & Curtis, for respondent.

TIMLIN, J.

Kate Pier and other owners of land sought to be condemned are appellants, and the Wisconsin River Improvement Company respondent.

1. The appellants first challenge the jurisdiction of the judge of the superior court for Lincoln county, and also that of said superior court, to appoint commissioners in condemnation proceedings, contending that chapter 292, p. 349, Laws 1880, under which this proceeding was brought, assuming it to be a valid statute, confers that power only upon “the circuit court or the judge thereof.” But chapter 295, p. 446, Laws 1905, relating to the superior court for Lincoln county, invests that court with “jurisdiction equal to and concurrent with the circuit court of Lincoln county in all civil actions and proceedings at law and in equity,” with an exception not relevant here. If we could consider the words “all civil actions and proceedings at law and in equity” as restrictive and as imposing a limitation upon the jurisdiction so as to confine the authority of the superior court for Lincoln county to proceedings in actions at law and proceedings in suits in equity, this construction would be permissible, and perhaps proper; but the words “actions and proceedings” have by statute an extended significance, so that they together cover all remedies to be obtained in courts. Sections 2594, 2596, St. 1898. So the words “at law and in equity” embrace all exercise of judicial or quasi judicial power on the part of courts, whether that power be conferred upon the courts by statute, common law, or equitable rules. The expression used in the statute must be construed as extensive and general, rather than restrictive and particular. This broad grant of jurisdiction is followed by express authority to issue all commissions provided by law, and there is also in the act a provision that whenever any statute of this state shall mention the circuit judge or judge of the circuit court, etc., these words shall be deemed to apply to the judge of the superior court for Lincoln county. We therefore hold that, assuming chapter 292, Laws 1880, to be a valid law, the power there conferred upon the circuit court or the judge thereof is, by chapter 295, Laws 1905, conferred upon the superior court for Lincoln county and upon the judge thereof.

2. It is next contended that chapter 292, Laws 1880, is a private or local act and invalid because the subject of the act is not expressed in its title. Const. art. 4, § 18. The title of the act is: “An act to amend chapter 171 of the Private and Local Laws of 1868 entitled ‘An act to incorporate the Wisconsin River Improvement Company and to amend chapter 298 of the Laws of 1876 amendatory thereof.’ ” Chapter 171, p. 343, Priv. & Loc. Laws 1868, is not entitled, “An act to incorporate the Wisconsin River Improvement Company,” does not relate to that subject at all, but is an act to authorize the town of Springfield, Dane county, Wis., to establish and maintain a high school. Chapter 298, p. 644, of the Laws of 1876, contains in its title the same erroneous reference to chapter 171 of the Private and Local Laws of 1868, but also purports to amend chapter 171, p. 313, of the Private and Local Laws of 1866, which last-mentioned act is entitled, “An act to amend chapter 30 of the Private and Local Laws of 1853 entitled, ‘An act to incorporate the Wisconsin River Improvement Company.’ ” In the body of the last-mentioned act the corporation is, however, described as the Wisconsin River Improvement Company. There was a statute of 1868 amending the charter of the Wisconsin River Improvement Company, but it was chapter 394, p. 925, instead of chapter 171; so, also, there was a statute numbered 171 amending the charter, but it was enacted in 1866 as aforesaid, and not in 1868.

It will thus be seen that in the title to the act of 1880 there is: First, a false description of chapter 171, Priv. & Loc. Laws 1868; second, a correct description of chapter 298, Laws 1876, which latter contains a false description; and, third, a correct description of the subject of the law sought to be amended as, “An act to incorporate the Wisconsin River Improvement Company.” The body of the act of 1880 expressly confers on the Wisconsin River Improvement Company authority to erect and maintain dams at such places as may seem advisable on the Wisconsin river between certain designated points, and to acquire by condemnation proceedings land along the banks of the Wisconsin river for the purpose of facilitating and cheapening the driving and floating of logs, timber, and lumber in said river. Application to the court is necessary, and the court upon such application is required to determine whether said company is entitled to take the whole or any part of the land sought to be acquired. This is similar to the language found in section 1847, St. 1898. By chapter 194, p. 318, Laws 1895, the respondent's corporate existence was recognized, and it was authorized to improve the Wisconsin river in the manner provided in the original act of A. D. 1853, or in such other manner as it might deem expedient or advisable, from Stevens Point, Portage county, to the head waters of the Wisconsin river. Assuming, without deciding, that the act of 1880 is private or local, is the subject of that act expressed in the title? The subject of the act is an amendment to the charter of the Wisconsin River Improvement Company by conferring thereon the powers aforesaid. The title expressly declares that it is to amend a law entitled, “An act to incorporate the Wisconsin River Improvement Company,” but describes the latter statute, which it purports to amend, incorrectly, by reference to the chapter number of the act and the year of its passage. There is in this way a reference in the title of the act to its subject, but coupled with a false description. Two very ancient maxims of the common law are applicable: “falsa demonstratio non nocet.” Broom's Legal Maxims (7th Ed.) 629 marg. et seq. “Utile per inutile non vitiatur.” Id. 627; Madison, etc., Co. v. Reynolds, 3 Wis. 287; 26 A. & E. Ency. of Law, pp. 579-583.

Applying another test, it seems to us that any one reading this title would be at once informed that it expressed the subject of the act, which is an amendment to an act incorporating the Wisconsin River Improvement Company and also an amendment to an amendment of that act. Upon further inquiry, he would find that the statute of 1868 referred to in the title of the act of 1880 was not entitled as described in the title of the act of 1880; but the same investigation would bring him to chapter 298, Laws 1876, which would direct him to the original incorporation act, namely, chapter 30, p. 48, of the Private and Local Laws of 1853. Thus he who made no investigation, but heard the title read, would be informed that the act of 1880 was an act to amend the corporate charter of the Wisconsin River Improvement Company, and he who made full investigation would inevitably ascertain the exact and true condition of the statutes relative to this corporation. Therefore neither the casual hearer nor the investigator would be misled, and the requirements of the state Constitution are satisfied.

3. It is next argued that the condemnation in question is sought for a private, and not for a public, purpose, and that the private use is the principal or paramount use to be derived from the erection of the dam in question and the real purpose for which this condemnation is sought. To maintain this contention, it is said that the only public purpose which can be considered in the condemnation proceedings in question is the improvement of the river for the purpose of facilitating and cheapening the driving and floating of logs, timber, and lumber, and that the evidence submitted by respondent on the hearing fails to show that the dam and consequent overflow...