Dixow, C. J.
These are two appeals in the same action, the one by the plaintiff from a final judgment [181]*181dismissing Ms complaint, and the other by the defendants from a previous order of the court denying their motion to dissolve and vacate a preliminary injunction which had been granted in the cause on the application of the plaintiff. The question involved in these appeals is the same as that discussed in the recent case of Curtis v. Whipple (24 Wis. 350), and after what was there said in relation to it, a very lengthy examination will not be necessary. The question is as to the power of the legislature to raise money, or to authorize it. to be raised, by taxation, for the purpose of donating it to a private corporation. We there held that the legislature possessed no such power, and the ^conclusion in that case we think follows inevitably in this, from the principles stated in the opinion. The cases are not distinguishable, except in the single circumstance that the corporation here, to which it is proposed to give the money, is a railroad company in behalf of which the power of eminent domain has been exercised by the state for the purpose of enabling it to secure the land over which to build its road. It is contended that this circumstance so completely separates the cases as to render wholly inapplicable to a railroad company a fundamental principle with regard to the power -of taxation, which controls as to all other private corporations, and prohibits the making of similar donations to them — in other words, that it changes the corporate character of such company, and transforms it from a private into an altogether public corporation, so that the people may be taxed for the purpose of giving the money directly to it. If this position were correct, then undoubtedly the deduction would be that the taxation is valid. But we deny the correctness of the position, and, on the contrary, affirm that though a railroad company may be, as to its capacity to assume and exercise in the name of the state the power of eminent domain delegated to it, so far a public or quasi public corporation, yet in all its other powers, functions and capacities it is essentially a [182]*182private corporation, not distinguishable from any other of that name or character. As to the use of the land for th,e purpose of a highway, and the right of the public to pass and repass over it and enjoy the advantages afforded by it for the transporation of the merchandise and productions of the country from one place to another upon the payment of reasonable fare or charges, the corporation may perhaps be said to be public, but in all other respects it is private. The public having the power for itself to condemn the land on payment of júst compensation, and to build, equip and operate the road, and to charge toll or fare for'its use, or for the carriage and transportation of passengers and merchandise, that power, subject to the continued enjoy ment by the public as a matter of right, and not by permission of the corporation only, of the same benefits of carriage and transportation upon the same conditions as to payment of fare and charges, may be exercised in behalf of a private corporation, and so far changes its character, but no farther. That such is the true corporate character of a railroad company is a proposition, we think, requiring very little argument or elucidation. It is plain to the mind of every intelligent person who has given the subject the slightest consideration. The road, with all its rolling stock, buildings, fixtures and other property pertaining to it, is private property, owned, operated and used by the company for the exclusive benefit and advantage of the stockholders. This constitutes a private corporation in the fullest sense of. the term, and were we to attempt to distinguish between such a corporation and an incorporated institution of learning like that in Gurtis v. Whipple, and to show that money might be raised by taxation to be given to the former, but not to the latter, it would be a task which we should despair of accomplishing to the satisfaction of any one not far more skilled in. the subtleties of the law than we ourselves profess or ever expect to be.
And if we examine any book of authority on the sub[183]*183ject, we shall find that such is and always Eas been tEe rule of tEe law as to tEe corporate character of sucE companies, notwithstanding tEe delegation of the power of eminent domain, and tEeir consequent subjection in a certain degree to public use and convenience. They are always classed among private corporations, such as banking, insurance and manufacturing corporations, and corporations ,f°r the building of bridges, turnpikes, canals, etc. Messrs. Angelí and Ames, in their work on corporations, section 40, expressly so classify them, and, speaking of them in connection with those last above named, say : “ TEe latter kind Eave a concern witE some of the expensive duties of the state, tEe trouble and charge of which are undertaken and defrayed by them in consideration of a certain emolument allowed to their members.” As a matter of law, the duties of railroad companies to receive and carry passengers and goods differ very slightly, if at all, from those of other common carriers of passengers and goods, whether private individuals or copartnerships, or incorporated bodies. All common carriers are bound to receive and carry when paid or tendered a reasonable compensation. The public use and convenience is the same with one class of common carriers as with another — the same with an incorporated stage coach or steamboat company as with a railroad company ; and yet no one, we think, would pretend that taxation could be resorted to for the purpose of aiding the former, while all the property, gains and emoluments belong to the individual stockholders. All private corporations are more or less for pubHc use. If they were considered of no public utility or advantage, it is presumed they would never be chartered. It enters into the very definition of a private corporation, that given in Bonaparte v. The Camden and Amboy Railroad Company (1 Bald. C. C. 223), that they are -for tEe public use and convenience. Mr. Justice Baldwin says: “Private corporations are for banks, insurance, roads, canals, bridges, etc., wEere tEe stock is owned [184]*184by individuals, but their use may be public’’ And Messrs. Angelí and Ames, section 31, after quoting this •language, add: “In all the .last-named, and other like corporations, the acts done by them are done with a view to their own interest, and if thereby they incidentally promote that of the public, it cannot be reasonably supposed they do it from any spirit of liberality they have beyond that of their fellow citizens. Both the property and sole object of every such corporation are essentially private, and from them the individuals composing the company corporate are to derive profit.”
But a railroad' company, like a company for running stage coaches or steamboats, might be incorporated, and the road built, equipped and operated, the public use and convenience being the same, without the delegation of the po.wer of eminent domain. Money will secure the .title to land, over which to build a road, by contract with the owners, and it is a matter of policy on the part of the state whether it will delegate the power of eminent domain or not. If a road were built and operated by such a company, could money be raised by taxation for the purpose of giving it to the company %
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Dixow, C. J.
These are two appeals in the same action, the one by the plaintiff from a final judgment [181]*181dismissing Ms complaint, and the other by the defendants from a previous order of the court denying their motion to dissolve and vacate a preliminary injunction which had been granted in the cause on the application of the plaintiff. The question involved in these appeals is the same as that discussed in the recent case of Curtis v. Whipple (24 Wis. 350), and after what was there said in relation to it, a very lengthy examination will not be necessary. The question is as to the power of the legislature to raise money, or to authorize it. to be raised, by taxation, for the purpose of donating it to a private corporation. We there held that the legislature possessed no such power, and the ^conclusion in that case we think follows inevitably in this, from the principles stated in the opinion. The cases are not distinguishable, except in the single circumstance that the corporation here, to which it is proposed to give the money, is a railroad company in behalf of which the power of eminent domain has been exercised by the state for the purpose of enabling it to secure the land over which to build its road. It is contended that this circumstance so completely separates the cases as to render wholly inapplicable to a railroad company a fundamental principle with regard to the power -of taxation, which controls as to all other private corporations, and prohibits the making of similar donations to them — in other words, that it changes the corporate character of such company, and transforms it from a private into an altogether public corporation, so that the people may be taxed for the purpose of giving the money directly to it. If this position were correct, then undoubtedly the deduction would be that the taxation is valid. But we deny the correctness of the position, and, on the contrary, affirm that though a railroad company may be, as to its capacity to assume and exercise in the name of the state the power of eminent domain delegated to it, so far a public or quasi public corporation, yet in all its other powers, functions and capacities it is essentially a [182]*182private corporation, not distinguishable from any other of that name or character. As to the use of the land for th,e purpose of a highway, and the right of the public to pass and repass over it and enjoy the advantages afforded by it for the transporation of the merchandise and productions of the country from one place to another upon the payment of reasonable fare or charges, the corporation may perhaps be said to be public, but in all other respects it is private. The public having the power for itself to condemn the land on payment of júst compensation, and to build, equip and operate the road, and to charge toll or fare for'its use, or for the carriage and transportation of passengers and merchandise, that power, subject to the continued enjoy ment by the public as a matter of right, and not by permission of the corporation only, of the same benefits of carriage and transportation upon the same conditions as to payment of fare and charges, may be exercised in behalf of a private corporation, and so far changes its character, but no farther. That such is the true corporate character of a railroad company is a proposition, we think, requiring very little argument or elucidation. It is plain to the mind of every intelligent person who has given the subject the slightest consideration. The road, with all its rolling stock, buildings, fixtures and other property pertaining to it, is private property, owned, operated and used by the company for the exclusive benefit and advantage of the stockholders. This constitutes a private corporation in the fullest sense of. the term, and were we to attempt to distinguish between such a corporation and an incorporated institution of learning like that in Gurtis v. Whipple, and to show that money might be raised by taxation to be given to the former, but not to the latter, it would be a task which we should despair of accomplishing to the satisfaction of any one not far more skilled in. the subtleties of the law than we ourselves profess or ever expect to be.
And if we examine any book of authority on the sub[183]*183ject, we shall find that such is and always Eas been tEe rule of tEe law as to tEe corporate character of sucE companies, notwithstanding tEe delegation of the power of eminent domain, and tEeir consequent subjection in a certain degree to public use and convenience. They are always classed among private corporations, such as banking, insurance and manufacturing corporations, and corporations ,f°r the building of bridges, turnpikes, canals, etc. Messrs. Angelí and Ames, in their work on corporations, section 40, expressly so classify them, and, speaking of them in connection with those last above named, say : “ TEe latter kind Eave a concern witE some of the expensive duties of the state, tEe trouble and charge of which are undertaken and defrayed by them in consideration of a certain emolument allowed to their members.” As a matter of law, the duties of railroad companies to receive and carry passengers and goods differ very slightly, if at all, from those of other common carriers of passengers and goods, whether private individuals or copartnerships, or incorporated bodies. All common carriers are bound to receive and carry when paid or tendered a reasonable compensation. The public use and convenience is the same with one class of common carriers as with another — the same with an incorporated stage coach or steamboat company as with a railroad company ; and yet no one, we think, would pretend that taxation could be resorted to for the purpose of aiding the former, while all the property, gains and emoluments belong to the individual stockholders. All private corporations are more or less for pubHc use. If they were considered of no public utility or advantage, it is presumed they would never be chartered. It enters into the very definition of a private corporation, that given in Bonaparte v. The Camden and Amboy Railroad Company (1 Bald. C. C. 223), that they are -for tEe public use and convenience. Mr. Justice Baldwin says: “Private corporations are for banks, insurance, roads, canals, bridges, etc., wEere tEe stock is owned [184]*184by individuals, but their use may be public’’ And Messrs. Angelí and Ames, section 31, after quoting this •language, add: “In all the .last-named, and other like corporations, the acts done by them are done with a view to their own interest, and if thereby they incidentally promote that of the public, it cannot be reasonably supposed they do it from any spirit of liberality they have beyond that of their fellow citizens. Both the property and sole object of every such corporation are essentially private, and from them the individuals composing the company corporate are to derive profit.”
But a railroad' company, like a company for running stage coaches or steamboats, might be incorporated, and the road built, equipped and operated, the public use and convenience being the same, without the delegation of the po.wer of eminent domain. Money will secure the .title to land, over which to build a road, by contract with the owners, and it is a matter of policy on the part of the state whether it will delegate the power of eminent domain or not. If a road were built and operated by such a company, could money be raised by taxation for the purpose of giving it to the company % Or if a railroad were built by one or more individuals, without any act of incorporation, and without the exercise of the power of eminent domain, as it is conceived might be done, could the people be taxed in order to give the . Inoney to such individual or individuals ? Can a rail-toad be built and put in running order by direct taxation, and then the whole property transferred by act of ■the legislature, without compensation or equivalent, to one or more private individuals, or to a corporation composed of such individuals, created for the purpose of receiving it ? . Or can a corporation, composed of one or ■ more individuals, be created for the purpose of owning and operating a railroad, and holding and enjoying all its gains and emoluments, and at the same time the charter, provide that the corporators or stockholders shall pay nothing, but that the road shall be built, [185]*185equipped and put in running order at the expense of the people, to be defrayed by taxation ? The majority of this court are constrained to believe that the legislature possesses no such powers, and that all these questions must be answered in the negative. Such proceedings, provided they were proper or could be sustained, would deserve the opprobrious epithet given to them by Judge James, in Sweet v. Hulbert, 51 Barb. 316, where, speaking of an act of the legislature of New York, precisely like that involved in these appeals, he says : “If this can be done, it is legal robbery ; less respectable than highway robbery, in this, that the perpetrator of the latter assumes the danger and infamy of the act, while this act has the shield of legislative irresponsibility.”
If, as we have supposed, the granting of the right of eminent domain to a railroad company may so far change its corporate character as to clothe it with the power of the state, and, in consideration of the emoluments allowed to its members, charge it with the performance of a duty of the state, namely, that of providing suitable and proper thoroughfares through it for the benefit and convenience of the people, we have still endeavored to show that the character of the company remains in every other respect the same as if no such grant had been made. Nor is this mixed public and private character of the company any thing strange or anomalous in the law of corporations. It is well known, for example, that a state may take upon itself the character of a private citizen or corporation, by becoming a partner or stockholder in a private trading company or corporation, and that public and municipal corporations may stand in respect to some things, as grants made to them by the state or under its authority, on the same footing as would any individual or private corporation, upon whom a like special franchise may have been conferred. Angelí and Ames on Corp., §§ 31, 32, 33, and cases cited. Our conclusion, therefore, is, that though a railroad company may pos[186]*186sess this single exceptional corporate characteristic, it is, nevertheless, essentially a private corporation, coming fully within the operation of the principles laid down in Curtis v. Whipple, and that the taxation complained of cannot be sustained. This conclusion i& fully supported by the case of Hansen v. Vernon, as yet unreported, in the supreme court of Iowa, December term, 1868, and the case of Sweet v. Hubert, above referred to, which are the only cases known to us where the question here presented has been directly raised and decided by the courts. The opinions in both cases are very able, and clearly and fully sustain the position taken by counsel in the able arguments made at the bar in this case.
It only remains for us to add a few words, if, indeed, the same can be thought necessary, by way of distinguishing between this, and those numerous cases where it has been held that cities, towns and counties can subscribe for the stock in a railroad company, and discharge the debt thus incurred by the assessment and levy of taxes. The principle upon which such taxation has been sustained will readily appear by a reference to the opinion in Curtis ». Whipple. The city, town or county becomes a part owner of the road, to the extent of the stock taken, and the work being one which the public might have engaged in as the sole owner, and paid for entirely out of the public funds, it has been considered that there was no valid objection to its becoming a part owner thereof as a stockholder in a private corporation which has undertaken to do the same work. To the extent of the stock taken, the city, town or county is directly interested and benefited by the money expended in the work, the same being a matter of public concern, and it is, in our judgment, upon this principle, and this alone, that the taxation in that class of cases can be sustained. In saying this, we, of course, do not intend to exclude the idea, found in all the cases, that the road must be one situated within or passing through the corporate limits of the municipality to be taxed, and so [187]*187promoting the general prosperity and welfare of the people who are to pay the taxes. Cooley’s Constitutional Limitations, 214, and cases cited. The two things must unquestionably concur, in order to sustain the tax, but the last alone, which may be termed the benefit incidentally arising to the public, is clearly insufficient for the purpose. The property in the road having, by the creation of the corporation and the franchises granted to it, been converted into private property, devoted exclusively to the gains and emolument of the individual stockholders, the incidental benefits accruing to the public by reason of the investment, can no more sustain a tax than the like incidental benefits arising to the public from the employment of the capital or labor of the citizens in any other business or enterprise of a purely private character. For, if such incidental public bene- . fits or advantages alone will support a tax for a donation of money to persons or corporations engaged in one kind of private business, then they certainly must in another, and if it should be shown, as it undoubtedly can in numerous towns and places, that the establishment of mills and manufactories would be greatly beneficial to the inhabitants, far more so, perhaps, than the building of a railroad, then it would follow that the people of such towns and places could be taxed for the purpose of giving the money to persons or corporations proposing to build such mills or manufactories. This laist is a proposition upon which no one will insist; and we are clearly convinced that that contended for in this case is equally untenable.