#### City of Milwaukee, Appellant, vs. Milwaukee Electric Railway & Light Company, Respondent.

*October 30, 1913*

February *24, 1914.*

*Street railways: Franchises: Validity: State only may question: Right to use streets not yet opened: Commencement of term of franchise: Acceptance.*

1. In granting a franchise to a street railway company under see. 1862, Stats., a city acts as the agent of the state; and only the state, by an action of *quo warranto,*can question the validity of such franchise.

2. *It seems*that a city may grant to a street railway company a franchise to use, “when opened,” streets for the opening of which proceedings are then pending.

3. Where the resolution granting' a franchise to use certain streets fixed a certain date for the commencement of the term of such franchise, without requiring acceptance thereof, *it seems*that such provision governs, although the resolution also provided that “the rights hereby conferred shall be subject to all the terms and conditions set forth in” a previous franchise ordinance, which provided that the term thereof should commence upon the passage and publication of the ordinance *and acceptance thereof.*

Appeal from a judgment of tlie circuit' court for Milwaukee county: Laweenoe W. Halsey, Circuit Judge.

*Modified and affirmed.*

In February, 1906, tbe common council of tbe city of *Milwaukee,*by resolution, granted to tbe defendant tbe right to use Tbirty-eigbtb and Fortieth streets “when opened” and Cold Spring avenue (Hillside Lane) “as it now exists or hereafter may be opened” for street railway purposes. Proceedings for tbe opening of each of said streets were pending at tbe time tbe resolution was adopted, and were afterwards completed, and tbe defendant laid its tracks in tbe streets when opened, and continued to use tbe same until this action was begun on May 29, 1912, to compel tbe defendant to remove tbe same on tbe ground that it bad no valid franchise *84covering tbe streets in question. Tbe defendant answered on tbe merits and also interposed a plea in abatement claiming tbe validity of tbe franchise could be tested only by tbe state in an action of *quo warranto.*Tbe trial court took evidence on tbe merits, reserving a ruling upon tbe plea in abatement, and at tbe close of tbe trial found for tbe defendant on tbe merits and also sustained its plea in abatement, and ordered tbe complaint dismissed on tbe merits. Erom a judgment entered accordingly tbe plaintiff appealed.

Eor tbe appellant there was a brief by *Daniel W. Iloan,*city attorney, and *Clifton Williams,*special assistant city attorney, and oral argument by *Mr. Williams.*

Eor tbe respondent there was a brief by *Miller, Mach & Fairchild,*and oral argument by *F. 8. Mach.*

Tbe following opinion was filed December 9, 1913:

ViNJB, J.

Counsel for plaintiff correctly state that tbe issue on tbe merits is whether tbe defendant bad a valid franchise on tbe streets in question. It is claimed to be invalid because tbe city bad no right to grant a franchise on a street not' opened, to take effect “when opened,” even though proceedings for tbe opening of tbe street were pending when tbe franchise was granted. Another ground of invalidity relied upon is that tbe defendant did not accept the franchise in writing. Tbe resolution provided that “the rights hereby conferred shall be subject to all the terms and conditions set forth in a certain street railway franchise granted to tbe *Milwaukee Electric Railway S Light Company*by tbe common council of the city of *Milwaukee*on January 2, 1900.” Tbe franchise of 1900 provided that “all tbe right's, privileges and franchises conferred by this ordinance shall be for and during tbe term commencing at the passage and publication of this ordinance *and acceptance thereof,*and ending December 31, 1934.” The resolution granting tbe franchise in question reads: “All tbe rights, privileges and franchises con*85ferred by this resolution shall be for and during the term commencing at the passage and publication hereof and ending December 31, 1934.” It is claimed the language of the ordinance of 1900 and not that of the resolution of 1906 governs as to when and how the franchise shall take effect, and that under the ordinance of 1900 there must be a written acceptance.

Such in brief are the issues raised by the merits of the case. They involve the validity of the franchise under which the defendant claims to operate. Such franchise was granted pursuant to the provisions of sec. 1862, Stats. 1911. When lawfully granted, it is a franchise grant from the state and not from the municipality, as the latter acts only as the agent of the state. *Manitowoc v. Manitowoc & N. T. Co.*145 Wis. 13, 129 N. W. 925. Only the state, by an action of *quo war-ranto,*can question the validity of the franchise under which the defendant operates its cars on the streets in question. *Ashland v. Wheeler,*88 Wis. 607, 617, 60 N. W. 818; *Stedman v. Berlin,*97 Wis. 505, 73 N. W. 57; *State v. Milwaukee E. R. & L. Co.*136 Wis. 179, 189, 116 N. W. 900, and cases cited. The trial court, therefore, properly sustained the plea in abatement.

Mindful of the rule of law announced in the above cited cases, this court extended to the state the privilege of becoming a party plaintiff to the end that, since the case was tried on the merits, it might be finally disposed of on the record made. The state, through the attorney general, for satisfactory reasons, declined to become a party, and the action must therefore be dismissed on the ground that plaintiff has no legal capacity to maintain the same. But we have carefully considered the record before us with the result that we find no merit in plaintiff’s case. This statement should not, however, be construed as in any way affecting the rights of the state should it see fit to test the validity of the franchise in question by a proper action.

*86The judgment of the circuit court is modified by ordering a dismissal of the action on the ground that plaintiff has no legal capacity to maintain the same, instead of a dismissal on the merits, and as so modified is affirmed.

*By the Gourt.*— Ordered accordingly.

A motion for a rehearing was denied, with $25 costs, on Eebruary 24, 1914.