lution to extend a road extends it, just so much as a resolution to fence a road fences it. And the resolution rested wholly within the power of the directors, to alter or rescind, as virtually happened with this resolution, obliterating the extended railroad with the motion of the pen. Where one power is made dependent on the execution of another, the former cannot be put in motion by a resolution to execute the latter. Promise cannot take the place of performance. If there were power granted to the defendant to alter the road away from Tomah, after the extension, the extension must precede the alteration. Tomah certainly remained the actual terminus of the road, when the alleged alteration was made. And it was a change of terminus, not of route. Were this otherwise - had the road been legally extended, we cannot say that the power to change the route of the road away from Tomah would have followed. The principal road, the road extended, would still be the road from Tomah to St. Croix: the extension going from Tomah. The franchise would still be to build and operate an extension from Tomah. The extension would still be dependant on the road extended: an accessory to its principal. If the statute authorizing the extension should be repealed, where would the franchise of the defendant under the original charter end, as applicable to the actual road as it is to day? We are inclined to think at Warren's Mills, because the extension really proceeds from there. And there is no doubt that, in that case, the defendant would have, as it now has, a franchise to restore and operate its road from Warren's Mills to Tomah. We see nowhere indication of legislative intention to authorize the defendant to abandon the terminus of the road once fixed under its authority. So far as the charter of the defendant is concerned, we have already shown that the power to alter the road is limited to alteration between the termini. The general railroad act of 1872, as amended, confers on the defendant, in addition to the powers of its charter, the powers contained in that act itself. That requires parties seeking incorporation under it, to execute articles of association stating, amongst other things, the places from and to which their road runs or is intended to run, the length of the road, and the counties through which it is made or intended to be made, but no particular or other statement of its route. These articles are the basis of incorporation, to be filed in the Secretary of State's office. Upon these articles is issued the State patent of incorporation to construct, maintain and operate the road from one terminal point to the other, without stating the counties through which it is to run. And the corporation takes a franchise for a road between the terminal points specified, and for no other road. In the body of the act power is given to the corporation to change the route or any part of the route of their road, or any part of their road; filing in the office of the clerk of the circuit court of the proper county a certificate of the change. Here also we take the power to change the route of the road to be a power to change it between the terminal points specified in the patent, "their road;" and not to change the termini themselves. The jurisdiction of the State officers to issue the patent rests on the articles of association; and both the articles and the patent are limited by the terminal points stated. Neither are to give the route in detail, which is not jurisdictional; and therefore power is given to change the route for convenience of the road between the terminal points. And when such change is made, the certificate of it, going to local arrangement and not to the fundamental franchise, is filed in the local office and not in the secretary's office. It is even matter of doubt whether the change of route authorized can involve a change of the counties specified in the articles. This view seems to us to be necessarily implied in the word route, which, as the dictionaries tell us, implies passage to and from. The word is a French one, and we find it defined in Fleming & Tibbins' standard French dictionary, as "a way used for going from one place to another." And, corresponding with its defined meaning, its common acceptation excludes terminal points, and makes it dependent on them. We feel quite satisfied that the legislature, in giving liberal power to change the route for convenience, intended to give no power to change the places between which the road is to run, and so to leave railroad corporations free, by a little management, to change specific charters into roving commissions throughout the state. The legislation of the state is liberal enough of franchise to these corporations, in all conscience, to leave them without excuse for licentious construction of their charters. Were the position of the defendant well founded, we can see no reason why, in this case, the defendant might not have changed the whole road, abandoning it from its terminus on Lake St. Croix, and selecting at will any route to the south line of the state; wholly disregarding the legislative policy in its creation, and overlooking that the operation of the road chartered was a public trust committed to it and accepted with its charter. This follows logically from the position taken, and involves the absurdity that authority to extend a road operates as authority to abandon and remove the road to be extended, and to build a road different in all respects except one terminal point, to be in turn abandoned and deserted in a future reformation of the route of the new road, making railroads, as suggested by the defendant's counsel, chartered vagrants. It will be noticed that we have not rested our conclusions on any of the provisions of ch. 58 of 1859; and that the question of the repeal of that statute by ch. 119 of 1872 is not involved or considered in this case. Neither have we taken any aid from the view that the defendant's road is a land-grant road, for the construction of which the state has paid a consideration. It is said that, the road being built, the contract is executed. If this implies that, having obtained the grant, the defendant is at liberty to discontinue the road, we cannot assent to it. The charter, being in perpetuity, and being a contract upon consideration proceeding from the state to the corporation, appears to us to be binding in perpetuity, unless and until sooner determined by law. And, until determined, or until it be so changed by the law governing it, we do not perceive how the defendant can evade the duty of maintaining and operating the road, without breach of contract. It would be a strange disposition of the bounty of the United States and of the State, for the endowed company to build twenty miles of road and receive corresponding twenty miles of grant; take up the twenty miles of road built, build other twenty miles of road and receive other twenty miles of grant; take that up in turn, and so on to the end; absorbing the whole grant and leaving no vestige of road in the route of the grant. This the defendant can do, if it can without legislative authority take up one mile of the land grant road built. The acceptance of the franchise, in any case, involves a public trust; in this case it involves a public trust upon valuable consideration in addition to the consideration of the franchise. We apprehend that the bare statement of the scope of the proposition is sufficient to show it is as deficient in morality as in logic. We have dwelt upon this subject, perhaps, undue length, not because there appeared to us to be any difficulty involved, but in deference to the length and earnestness and ability with which the opposite positions were pressed upon us. These views compel us to hold, that the defendant, in discontinuing and taking up its road from Tomah to Warren's Mills, violated the provisions of its charter and its duty to the State under its charter. And it follows, that the road which the defendant is required by ch. 31 of 1873 to relay and equip, is part of its chartered road, which it had built and was bound to maintain, and not a new road coming within the principle stated in Kenosha etc. R. R. Co. v. Marsh, 17, Wis., 13, and at the present term in Attorney General v. Railroad Companies, 35 id., 425. II. On principle and authority there seems to be little room for doubt, or even for discussion, that this case comes within the first and second subdivisions of sec. 4, ch. 160, R. S., and that the act of the defendant, in discontinuing and taking up its road, as set up in the information, constitutes an offense rgainst the provisions of its charter and a violation of public law, working forfeiture. The case of the Albany & Vermont Railroad is, in many respects, very similar to this. There the company was incorporated for a road from Albany to Eagle Bridge, which was built the whole distance, and then discontinued and dismantled for some twenty-one miles from Waterford Junction to Eagle Bridge; the rest of the road being operated with other roads. There, as here, it was claimed, that this was done under resolution of the directors as an exercise of the corporate right to change the route of the road. In that case the New York courts discuss the distinction between the original obligation to build the road, and the right to discontinue part of it, when built. But the right to abandon and take up part of the road is denied, and the duty to maintain the whole road, when once completed, is asserted, in all the reports of the case. The discussion is interesting, but we have space for only a single extract. The court of appeals says: "The defendant has abandoned all its road east of Waterford Junction, whilst it is continuing the operation of that part between Albany and Waterford, in connection with the Rensselaer & Saratoga Railroad. It is exercising its corporate rights and privileges and the franchise granted by the State to maintain and operate a railroad between Albany and Eagle Bridge, in the operation of one between Albany and Waterford Junction, without any assent by the legislature to the abandonment of any part of its rad, or any legislative modification of the franchise granted to it This cannot be legally done. It is the exercise of a franchise or privilege not conferred on the defendant by law." People vs. Albany & V. R. R Co., 19 How. Pr., 523; 37 Barb., 216; 24 N. Y., 261. The general principle is very ably and elaborately discussed in People vs. Kingston & M. T. R. R. Co., and People vs. Bristol & R. T. Co., 23 Wend., 193, 222. The English King's bench holding the same view issued a mandamus for the restoration of part of a road dismantled by the corporation. Rex vs. Severn & W. R. R. Co., 2 Barn. & Ald., 646. These authorities in which we entirely concur, seem to us to govern this case. Some of the provisions of ch. 31, laws of 1873, well discussed at the bar, raise important and interesting questions which we have not noticed, because as has been seen, we hold that this proceeding can be maintained without aid from that act. We have arrived at this view with somewhat of reluctance, because as the facts are placed in the defendant's answer, which we must assume to be correct on the demurrer, the defendant's road appears to have been improved, without special injury to any locality. But conceding that, it appears to us to have been a grievous error of the defendant to attempt to evade its charter and take the law into its own hands. With its views of its interest, it should have appealed to the legislature for authority to do what it has done without authority. And we have the less reason to regret any apparent hardship in this decision, because the distinguished gentlemen who argued the demurrer for the State, declared the purpose of the State to be the restoration of the discontinued road, and not the forfeiture of the charter, unless in case of obstinate resistance by the defendant. By the Court.-Let an order be entered sustaining the demurrer to the defendant's answer, with leave to the defendant to answer over to the information by the first day of next term. |