On a motion by the respondent for a rehearing, it was urged in the brief of Norris & Chynoweth, that sec. 33, ch. 119, R. S.,"* is applicable to a proceeding for the condemnation of land, *170"because, from the time of the application to the court for «the appointment of commissioners until judgment obtained, there is a judicial proceeding, an action, pending. Warren v. R. R. Co., 18 Minn., 384; In re Cooper, 22 N. Y., 67; Colby v. Dennis, 36 Me., 9; Peoria & R. I. Railway Co. v. Birkett, 62 Ill., 332; Kennett's Petition, 4 Foster, 139; and especially Kohl v. United States, 91 U. S. (1 Otto), 367, and authorities there cited. This being so, counsel further contended that the proceedings and award of the commissioners in this case, being in accordance with the provisions of defendant’s charter, were valid, even if those provisions were repealed by the act of 1872. In support of this view, they argued that the charter of the company merely provided a form of proceeding, or action, by which the right to condemn land for public use was enforced, but that the right itself existed independently of any statute. West River Bridge Co. v. Dix, 6 How. (U. S.), 507; Vattel, b. 1, ch. 20, pl. 244; Code Hap., b. 2, tit. 2, 545; 1 Black. Comm., 139 ; Cooley’s BL, 137, 139. Itis the right of the state which is enforced in all such proceedings; the state takes the land through the agency of the corporation. Pratt v. Brown, 3 Wis., 612; Attorney Gen. v. Railway Cos., 35 Wis., 580; Beekman v. R. R. Co., 3 Paige, 44; West River Bridge Co. v. Dix, supra; Weir v. R. R. Co., 18 Minn., 155. 2. Counsel also asked the court to reexamine Moore v. S. & S. Railway Co., 34 Wis., 173, in connection with ch. 119, Laws of 1872, and argued at length that the provisions of secs. 13 and 55 of that act relate only to railroad companies organized or reorganized under the act itself. Comm. v. Council of Montrose Borough, 52 Pa. St., 391. They further argued that the act of 1872 did not have the effect to repeal by implication the provisions of defendant’s *171charter (and other like charters), because there is no negative language in the later statute in respect to the charter, and the two statutes may well stand together. Attorney Gen. v. Brown, 1 Wis., 513; Dodge v. Gridly, 10 Ohio, 173; Attorney Gen. v. Railway Cos., 35 Wis., 554. Where a new remedy or mode' of proceeding is authorized, without negative words or express repeal of a former one relating to the same matter, it is to be regarded as merely cumulative. Crittenden v. Wilson, 5 Cow., 165; 6 Ohio St., 307, 316; 11 id., 16; 11 Ohio, 134; Goodrich v. Milwaukee, 24 Wis., 422, 438. Again, special legislation controls general, upon the subject matter of the special act. Potter’s Dwar., 272-3; Western Bank, etc., v. Tallman, 17 Wis., 532; Walworth Co. v. Whitewater, id., 193; Cramer v. Stone, 33 id., 212; Janesville v. Markoe, 18 id., 350; Johnston v. Hamburger, 13 id., 176-7; Mead v. Bagnall, 15 id., 156; Ellis v. Batts, 26 Tex., 703; Brown v. Comm’rs, 21 Pa. St., 37. Of course a special act is repealable by a general act, but the intent to repeal ought to appear clearly, especially in such a case. ’ The act of 1872 does not in terms repeal defendant’s charter. It does not even contain the usual final section repealing acts or parts of acts conflicting with it, differing in this respect strikingly from ch. 146 (sec. 14), and other general laws of the same session, which assumed to revise the subject matter of various preexisting laws. Sec. 13 declares that “ any railroad company * * shall have the right to acquire title * * in the manner prescribed by this act;” and sec. 55 declares that all existing railway corporations shall have the powers and privileges contained in the act; but neither section contains any negative or exclusive words. Moore v. Railway Co. seems to interpolate such words, contrary to the established principles of construction. Potter’s Dwar., 192; King v. Burrell, 40 E. C. L., 96; Lamond v. Eiffe, 3 Q. B., 910; Street v. Commonwealth, 6 W. & S., 209; Comm. v. Easton Bank, 10 Barr, 442; Brown v. Comm’rs, 21 Pa. St., 37; Meek v. Pierce, 19 Wis., 300, 304; *1726 Ohio, 503; 10 id., 173, 476; 10 Ohio St., 15, 331, 362. Moreover, sec. 56 expressly repeals certain laws, without any general repealing clause added. This shows that the legislature did not contemplate a general repeal of all other laws on the subject. Under such circumstances, the specification of certain laws as repealed, is equivalent to a declaration that other laws shall continue in force. Lee v. Evans, 8 Cal., 431; Bird v. Dennison, 7 id., 307; Perkins v. Thornburgh, 10 id., 191; Attorney Gen. v. McDonald, 3 Wis., 807. Moreover, sec. 58 declares that “ whenever any commissioners appointed wider any laxo of this state for the purpose of appraising, etc., shall be, by the 1cm wider which they hme been appointed, limited to a time less than ninety days in which to perform their duties,” they shall have ninety days from the time of their appointment “ in which to discharge the duties imposed upon them, any law of this state heretofore enacted to the contrary notwithstanding.” This is an express recognition of past appointments, of the power to make future appointments, and of the continued force of laws theretofore enacted in this state in relation to the making of such appointments, the modes of proceeding prescribed in such laws, and the powers and jurisdiction of the commissioners under and in accordance with them. State v. Miller, 23 Wis., 634. 2. If the court should not accept these views, counsel asked that its judgment should at least be modified by providing that no injunction should issue if the defendant, within a reasonable time, to be designated by the court, should institute proceedings to condemn the plaintiff’s land, and promptly prosecute them as the court should direct. 17 Minn., 228; 1 Eng. Railway Cas., 684; 22 Wis., 588; 59 Pa. St., 433.
Lyon, J.A very able argument against the correctness of the decision in the case of Moore v. The Superior & St. Croix Railroad Co., 34 Wis., 173, has been submitted by the learned counsel for the defendant in support of the motion for a re-*173Rearing. Because that side of tRe question was not tRere argued, we Rave, on tRis motion, carefully reviewed tRat decision, and are firmly convinced tliat it is correct in principle and sRould not Re disturbed. TRe grounds upon wRicli tRat case was decided are sufficiently stated in former opinions, and no further statement or discussion thereof is required here.
Our adherence to that decision may result in some inconvenience to those railway companies which took a different view of the scope and effect of the act of 1872, and attempted to condemn lands under their respective charters after the passage of the act; but the danger of such inconveniences does not authorize us to construe the act differently from what we Relieve the legislature intended, and in derogation of the rights of the citizen whose property is liable to be taken from him without his consent.
Eor reasons already sufficiently stated by the chief justice in the former opinion in this case, the judgment of the circuit court is not supported or aided by Dillon v. Linder, 36 Wis., 344, or the statute there under consideration.
The motion for a rehearing must be denied, with $25 costs.
In the usual course of practice, the defendant will probably have sufficient time before the injunction prayed for will be likely to issue, in which to procure a valid condemnation of the plaintiff’s land. In any event, no good reason is perceived why the circuit court may not, after the cause is remitted, withhold the injunction a reasonable time to enable the defendant to procure such condemnation. It is not necessary or proper that this court should now make any order or give any direction in that behalf.
The section cited reads as follows: “ No action at law or criminal prosecution now pending, or which shall hereafter be commenced, founded upon any statute of this state, shall be defeated by a repeal of such statute; but any *170such action or prosecution shall proceed to issue, trial, and final judgment, in the same manner and to the same purpose and effect as though the statute upon which the same is or shall be founded was continued in full force, virtue and effect to the time of such trial, issue and final judgment/’