I concur in the judgment of affirmance, but not in the approval of the proviso in the ordinance levying an occupation tax on street railways. The recitals in the records introduced in. evidence disclose that prior to 1905 *334the city of Lincoln, had granted franchises to several street railway companies whose rights .vested in the Home Street Railway Company. By virtue of a foreclosure suit in the United States circuit court for the district of Nebraska, those franchises and the other properties, real and personal, of the last named company were sold to said city. In February, 1905, all franchises and other property, tangible and intangible, thus acquired by said city were sold by it to the Citizens Railway Company for the consideration of $1,000 cash and 1 per cent, of the gross receipts of said company during 15 years, and 2 per cent, of said receipts thereafter. It seems plain that the city did not exercise any legislative function in said transaction. It did not grant a franchise, because the franchises it transferred had been granted theretofore to the Home Street Railway Company, the North Lincoln Street Railway Company, the Capitol Heights Street Railway Company, the Lincoln Electric Railway Company and the Lincoln Rapid Transit Company, but as proprietor sold what it had theretofore granted, plus the added permission given by the electors of the city to said various companies to operate street railways therein.
In State v. Citizens Street R. Co., 80 Neb. 357, it was held that said transaction was a sale of the property rights of the city. The provision for payment of a percentage of the gross receipts was unquestionably the chief consideration moving to the city. The $1,000 cash would not have paid the expense of the elections held whereby consent was given the original holders of the franchises to operate their lines of railway.
There is nothing in the title to, or body of, the ordinance to suggest that the council was exercising legislative pOAver. If the obligation of the Citizens company to pay for said property is not contractual, then there is no legal power to prevent the council from amending the ordinance and thereby relieve said company from paying the consideration it agreed to pay. If said obligation is not contractual, then, if the legislature should repeal the *335statute authorizing the council to levy and collect occupation taxes in the city of Lincoln, the city could not collect the purchase price of said property even though it were worth thousands of dollars. The logic of the chief justice does not satisfy the writer that the right of the city to its percentage of the receipts of the Citizens Street Railway Company rests on so unstable a foundation as the discretion of the city council or that of the legislature.
The title to the ordinance sought to be enjoined provides for the levy and collection of an occupation tax upon street railways in said city. The proviso can only apply to the Citizens company, and is an attempt to modify the contract between that corporation and the city. Such legislation is not expressed in the title to said ordinance, as required by section 73, ch. 13, art. I, Comp. St. 1905, and is, for that reason, if no other, void.
The remaining part of the ordinance is complete without the proviso, and capable of enforcement. While its burdens are considerable, they are not confiscatory, and the judgment of the district court is properly affirmed.
Lettqn, J.I agree with the foregoing opinion of Judge Root.