The Attorney General vs. Railroad Companies. convey; on the title to the thing purchased, not on the license. to the purchaser to hold it. The authority given to the purchasers to organize a corporation to operate the railroad, is very similar to authority given to an alien to hold real estate. Both take the authority from the state, but not the title. All these state enabling acts might be repealed without impairing the franchises of the territorial charter, however the repeal might affect the title to them. We have no doubt of this position; and we think that it is fairly recognized in Vilas v. Milwaukee & P. du C. R. R. Co., 17 Wis., 497. It was suggested with much ingenuity that, as the territory was the creature of the United States, the state upon its organization succeeded to the sovereign rights of the United States in the territory, as well those reserved by the United States as those delegated to the territorial government; full sovereignty subject only to the federal constitution; and that, as the organic act of congress reserved to that body the right to annul all acts of the territorial legislature, the state succeeded to that right. We cannot think so. Waiving all question of the sovereign rights of the United States over the territory, the state came into the union "on an equal footing with the original states in all respects whatever." The United States derive their powers from the states, not the states theirs from the United States. And though Wisconsin became a constituent of the United States 'as one born out of due time,' it is none the less an equal constituent with the original states. On its establishment, it took no governmental rights or powers from the United States, as a state. As a member of the union, it took, in common with all the other states, such rights as the federal constitution confers on the original states, as members of the union. The sovereignty and rights of sovereignty of this state came from no organized power. They are inherent in and are derived from its people. The power of congress over territorial legislation was an incident to the territorial condition, and lapsed, with the territorial government, when the state The Attorney General vs. Railroad Companies. came into being. The state, ipso facto, assumed all political authority within its boundaries, not limited or surrendered by the constitution of the United States. And the source of all legislative authority within its bounds must now be found in the state and federal constitutions, and nowhere else. On the argument of the principal motion, it was not suggested at the bar, and it wholly escaped our attention, that a general act concerning corporations in the territorial revision of 1839 reserved to the territorial legislature power to amend, alter or repeal all subsequent acts of incorporation. This act remained in force until the first state revision in 1849, when it, with many others, was repealed; the repeal to take effect January 1, 1850; with a saving clause, that the repeal should not affect any right accrued under any of the statutes so repealed. The attorney general has now called our attention to this act. And it was argued that the reserved right to amend, alter or repeal the territorial charter, entered into and became a part of the contract of the charter, when accepted; and thus became a right accrued, which was not affected by the repeal; that the repeal could not take effect as to the territorial charter, so long as the charter itself remained unrepealed; the reserved power continuing so far to exist, by force of the charter itself, as a contract. These are nice questions, not necessary to the disposition of this motion, and on which we shall therefore not express an opinion. If the territorial charter be a contract, as is held, it became such only upon acceptance by the corporators. Before that, as already seen, it rested in proposition, to ripen into a contract upon acceptance in the manner which it provided. And being so accepted after the territory had ceased to exist, it never became a contract between the territory and the corporation. The state constitution, as already observed, continued in force all territorial acts not repugnant to it. The charter thus became a statute of the state. And its acceptance, after the organization of the state, so far as it is a contract, makes it mani The Attorney General vs. Railroad Companies. festly a contract with the state. There was then no other public authority or political body with which the corporators could contract. It is either not a contract, or it is a contract with the state. The state adopted the charter, then a mere statute, not a contract, so far only as it was not repugnant to the constitution. With the reserved power of the territorial act of 1839 entering into it and forming part of it, as a proposition, it was in no way repugnant to the constitution. Without that power, it manifestly was. It is true that the language of sec. 1, art. XI, is expressly prospective. But it is prospective not only as to acts of incorporation, but also as to the formation of corporations. "All general and special acts enacted under the provisions of this section may be altered or repealed;" and, "corporations may be formed," etc. The whole section, taken together, signifies clearly, not only that no charters should be passed, but also that no corporations should be formed, not subject to the reserved power. It seems to us quite plain that a territorial charter, not subject to the reserved power, and not yet accepted, was "a law in force in the territory, repugnant to this constitution." Art. XIV, sec. 2. And the position that its acceptance from the state, after the adoption of the constitution, was an acceptance subject to the reserved power in the territorial act of 1839, and in sec. 1, art. XI of the constitution, is certainly a very strong one. There is high authority for going even further. After saying that a private corporation may forfeit its franchises by misuser or nonuser, Mr. Justice STORY says: "This is the common law of the land, and is a tacit condition annexed to the creation of every such corporation. Upon a change of government, too, it may be admitted that such exclusive privileges attached to a private corporation as are inconsistent with the new government, may be abolished." Terrett v. Taylor, 9 Cranch, 43. A fortiori may this be said of a charter passed before and accepted after a change of governThere is indeed some conflict between these views and ment. The Attorney General vs. Railroad Companies. those expressed in State v. Roosa, 11 Ohio St., 16. But we shall not comment on that case, or pursue this consideration further, because we shall not rest our decision wholly on it, as there appears to us to be safer and clearer ground for it to stand upon. It was quite competent for the state constitution to have repealed all laws of the territory which had not ripened into contracts, under the rule in Dartmouth College v. Woodward, 4 Wheat, 518. So was it competent for it to adopt them. So, also, to adopt them sub modo. This last is what the constitution did. Sec. 1, art. XIV, provides that all rights, actions, contracts, etc., as well of individuals as of corporations, shall continue and be as valid as if no change from territorial to state government had taken place. This provision is in favor of rights and contracts, and is properly absolute. It might have applied to the territorial charter, if then accepted. Sec. 2 provides that all laws then in force in the territory, not repugnant to the constitution, should remain in force, until they should expire by their own limitation or be altered or repealed by the legislature. This provision has relation to public policy, and is properly subject to absolute legislative control. The distinction is a just one, and is very marked and manifest. It may be that the territorial laws would have survived the change, without this constitutional provision, as the laws of conquered countries are said to survive conquest. Even in that case, they would have been subject to repeal. But the territorial laws actually survived the change by force of no such principle, but by the express provision of the constitucion. That instrument expressly continued them in force, until altered or repealed by the legistature, and no longer. The effect is to render subject to subsequent alteration or repeal, all territorial laws which were then subject to alteration or repeal. This makes all such laws expressly subject to alteration or repeal, the identical words of the reserved power in sec. 1, art. XI. And this use here of the very words used Kleinsteuber vs. Schumacher and another. there, and the provision for laws expiring by their own limitation, raise a very strong presumption that sec. 2, art. XIV, has special relation to corporate charters. For there was probably no statute of the territory which would expire by its own limitation, except such charters. Indeed the whole provision for alteration or repeal is nugatory, except so far as it has relation to charter contracts within the Dartmouth College rule; for all other laws would be subject to repeal without any provision for it. The provision was probably intended to take the place of the reserved power in the territorial R. S. of 1839, which, being so replaced, was accordingly repealed in the first state revision in 1849. We therefore hold that the unaccepted territorial charter of the Milwaukee & Waukesha Railroad Company, till then subject to alteration or repeal by the territorial legislature, was continued in force by sec. 2, art. XIV of the constitution, subject to alteration or repeal by the state legislature, just as a charter granted by the state; and all the positions of our former opinion in regard to state charters apply equally to the territorial charters of 1847-1848. The present motion of the attorney general must therefore be granted. By the Court. So ordered. KLEINSTEUBER VS. SCHUMACHER and another. JUSTICE'S COURT. (1-3) Entry of judgment on verdict. Taxation of costs within reasonable time. Loss of jurisdiction. (4) Review of judgment on certiorari. (5) Rule for further return of writ of certiorari. (6) Power of justice as to amending his judgment. 1. If a justice of the peace, immediately upon receipt of a verdict, states, in words audible to the parties and bystanders, present in court, that |