It was held in the ease of Wright v. Milwaukee Electrrie R. & L. Co., ante, p. 29, that the street railway’s franchise to operate a street railway upon the street in question had not lapsed or been lost at the time it commenced to relay its tracks. We shall not go over the ground again in the present case. Practically the only question remaining in the present case is whether the city can successfully maintain an action in equity to prevent the relaying of the tracks on account of the nonuse of the street for nearly five years. It will be readily seen that, if it can do so, the action will be practically an action brought to declare a-forfeiture of the franchise to operate a railway upon that piece of street. This question dan be answered logically in but one way, and that is in the negative. The franchise was the grant of the state. It was granted through the medium of the city, but, in making the grant, the city exercised the power of the state and acted on its behalf. While the state has delegated to the city the authority to grant franchises of this character, it has not, granted to the city the power to institute and maintain an action to forfeit the franchise for misuse or abuse. It has reserved to itself, acting through its attorney general and by leave of this court first *42obtained, this very important and delicate right and duty. This is the clear purpose and effect of the provisions of sec. 3241, R. S., and the decisions made thereunder. Such leave is a necessary prerequisite to the bringing of the action, and the granting or refusing thereof lies in the sound discretion of the court. State ex rel. Att'y Gen. v. Janesville Water Co. 92 Wis. 496. These considerations seem amply sufficient to dispose of this case. The franchise exists. It had not been lost by nonuser, or forfeited by surrender, or by judgment of the court; and, if it is to be forfeited, it must be done in the way pointed out by the statute. It follows that all the orders appealed from must be reversed. The company had a right to rebuild its track and resume the performance of its public duty, and it was therefore entitled to an order restraining interference with such right.
See note to this case in 3G L. R. A. 45.— Rep.The converse of the proposition necessarily follows, namely, that the city had no right to an order preventing the company from relaying its tracks. The counterclaim stated no cause of action, because a forfeiture cannot be declared by bill in equity brought by the city. It must be done by action in the name of the state, under sec. 3241, R. S.
By the Court.— Orders reversed, and action remanded for further proceedings according to law.