(concurring).. While I am fully in accord ■with the decision reached in this case, I do not agree with some of the reasoning contained in the opinion. .If I rightly understand it, the opinion holds that the contract features of the ordinance (such as the fixing of rates, the payment of a part of its revenues to the city, and the like) constitute of themselves public privileges or franchises which the city had no authority to grant, and it is only by reason of the existence of these provisions that the ordinance is condemned and the defendant found to be guilty of usurping a franchise. I cannot agree with this idea. In my judgment the unlawful franchise consists in the attempted grant of the right to use the public streets and ways of the city and to carry oil its business therein. The many contract provisions cannot in any sense be considered as franchises or grants of privileges, but they simply serve to demonstrate very clearly that the city in attempting to grant the use of its streets to the company was attempting to grant a franchise and was not attempting simply to exercise its police power. As said in the case of State ex rel. Vilter Mfg. Co. v. M., B. & L. G. R. Co. 116 Wis. 142, 92 N. W. 546, such contract provisions and exactions tend very strongly .to stamp the ordinance as an attempted franchise, and repel the idea that it was intended simply as a police regulation. Eor this purpose they seem to be very significant, but not otherwise.
The grant of the right to use the streets for the purpose of conducting its business being the real franchise which is attacked, we are met with the proposition that the company already had this right by grant from the state, and hence that the attempted grant by the city is not a franchise in any sense, and quo warranto will not lie when no franchise has been usurped. This is the serious question in the case, and one upon which there is very little authority so far as my researches have gone. In the California case cited in the opinion (Ex parte Henshaw, 73 Cal. 486, 15 Pac. 110) it *600was held that one who was assuming to exercise the duties of an office which had been abolished by the repeal of the statute creating it was estopped, in an action brought against him for usurpation of the office, from denying the existence of the office. The argument in support of this conclusion is persuasive, but there is another view which I think logical and satisfactory. ■ The city council has legislative powers within certain prescribed limits. Presumably, when it attempts to legislate and passes an ordinance with all the required formalities, such ordinance is a valid exercise of its legislative power. On its face the ordinance appears to be a valid grant of privileges, and especially would it havO such appearance to business men and investors who could not be presumed to know that it was worthless. Thus it might easily be used as a basis of credit or as an inducement to invest money in the company obtaining it and might well deceive innocent third persons. It is not the case of an attempted grant of privileges or franchises by a person or body having no legislative power, which attempt might well be regarded as an absolute nullity. On the other hand, it takes the form of a local law solemnly passed by a lawmaking body and spread upon its 'records. It seems that there should be some way of testing the validity of this apparently valid legislation and of eliminating it from the records by an authoritative judgment and thus preventing its use for any purpose. In my judgment quo warranto may rightly and logically be used for this purpose, and hence I concur in the judgment.
Maeshall, J. I concur in the above opinion by Mr. Justice Winslow.