The following opinion was filed May 8, 1908:
Bashroed, J.(dissenting). The record in this case' is so voluminous that the preparation of an opinion involves great labor and careful study to avoid error and misstatements. The labor of preparing a dissenting opinion has been greatly lightened by the very able decision and findings of the trial court, which meet my full approval. While this court in the controlling opinion sustains the authority of the municipality to adopt the resolution here challenged, it condemns, the exercise of the power as unreasonable and partial under the facts, which are said to be undisputed. The trial court ha's found that the city of Oshkosh exercised the power which it unquestionably possessed in a lawful and reasonable manner for the regulation of its streets in the interests of *488the public, as well as for the advantage of the two rival companies. A restatement of the facts may aid in a correct understanding of the situation confronting the municipality, and may tend to vindicate the justice and reasonableness of its action. The city of Oshkosh will hereinafter be referred to as the “City,” the Winnebago Traction Company as the “Traction Company,” and the Eastern Wisconsin Railway '& Light Company as the “Interurban Company.” An attempt will be made to state the facts which are deemed to be material in their chronological order. The organization of the two railway companies and the rights claimed by them upon the streets in the city of Oshkosh are stated in the opinion.
In February, 1902, the Interurban Company entered into a contract with the Traction Company, which is referred to as the traffic agreement, whereby the tracks of the two companies were to be connected, and the Interurban Company was to run its cars in the city of Oshkosh over the tracks of the Traction Company upon the terms and conditions therein stated. It does not appear that the city had official knowledge of this traffic agreement, and it never gave its consent thereto in any manner. It stands admitted that the Traction Company had no authority to operate an interurban road upon its street-car tracks, or to authorize the use of its street-car line for that purpose by another company. The city was not a party to the traffic agreement, and its power over its streets was in no way affected thereby. The city, by an ordinance approved November 10, 1903, granted a franchise to the Interurban Company to maintain a single or double track for an electric interurban street railroad in the streets of Oshkosh therein mentioned, which included South Main street to the Fox river, over and along Main-street bridge, and on North Main street to High street. This was the most direct and feasible route for that company to enter the city, and was the only one ever selected, and was the *489most convenient in all respects for public travel. There was .a provision in the ordinance that not more than two tracks should be placed upon said streets, including those theretofore laid, or which any other company had a right to lay under any existing franchise; but in lieu of laying such tracks the Interurban Company was authorized to operate its cars over and along such tracks of any other company, “subject to the existing rights of such other company.” At this time the Traction Company claimed the right to maintain double tracks upon Main street and across the bridge. Prior to the adoption of this ordinance, neither the Traction Company nor the Interurban Company had any right to operate an interurban railway or to carry interurban cars over or upon any of the streets or bridges of the city of Oshlcosh.
The common council, by an ordinance passed in November, 1903, and which has since continued in force, prohibited the passing of cars upon any of the bridges in the city of Oshlcosh. This was before any controversy had arisen between the two companies as to their right to lay tracks upon Main-street bridge. At the time the franchise was granted to the Interurbaai 'Company the Traction Company had a single track in Main street, with a switch or turnout commencing upon the incline at the Main-street bridge on the south and ending upon the incline of the bridge approaching the north, but which had never been used as a passing place for cars. It was the contention of the Traction Company at that time that it had the right to maintain a double track on Main street and across the bridge, and this doubtless prompted the proviso in the franchise granted to the Interurban Company -with respect to using the tracks of any other company. After the franchise was granted to the _Interur-ban Company it located its line of railway upon South Main street to the bridge crossing Fox river, thence over the Main-street bridge, and north on Main street to High street, the 'terminus of the interurban road running between Oshlcosh *490and Neenah. The court has found that the route so selected was the most direct and feasible and the one most advantageous to the public, and that it is essential to the success1 of the interurban railway. The road has been constructed and operated as far north as Main street ever since May, 1906, the construction thereof having been made at large expense under the ordinance of November, 1903.
In 1904 the city determined to replace the Main-street bridge with an entirely new structure, and in December the old bridge was removed, together with all tracks thereon. The Traction Company was then insisting upon its right to maintain a double track on Main street and two- tracks across Main-street bridge as part of a double-track system. The interurban Company claimed the right to maintain one track across the bridge, and, as there could be but two tracks, a contest arose between them, which was determined by this court by a decision announced November 14, 1905, and reported in 126 Wis. 179, 105 N. W. 571. The court there held that the Traction Company did not have the right to maintain double tracks in Main street, but did not decide upon the right to a turnout or switch upon the bridge, as the so-called passing track was there denominated. At about the time the old bridge was removed a memorandum agreement was signed December, 15, 1904, by the Traction Company and by the mayor, clerk, and comptroller of the city, whereby the city was to lay the planking upon the bridge in process of construction and to lay and fasten upon said bridge the rails of the Traction Company, the latter “to furnish all rails for the laying of its double track across said bridge at its own cost and expense.” The Traction Company was to pay its proportionate share of the planking and of the laying of the rails, and ten per cent, in addition thereto. It is to be here noted that it does not appear that the contract contains any provision or suggestion that the tracks are to be usfed as turnout or passing tracks. It will be remembered that the ordi*491nance of 1903 was tben in forcé, probibiting the use of passing tracks upon any of tbe bridges in the city. Part of the rails had been furnished by the Traction Company and laid upon a portion of the new bridge when the decision of this court was announced November 14, 1905, holding that the Traction Company had no right to maintain double tracks upon Main street.
The common council thereupon adopted the resolution, approved November 28, 1905, which gave rise to this litigation, and which this court holds to be unreasonable and void. The preamble refers to the decision of this court with respect to the rights of the Traction Company to lay an additional track upon the streets of the city, the claim of the Interurban Company that it has a right under its franchise to lay its track upon South Main street, and that such tracks had been there laid to the east of the tracks of the Traction Company, and its purpose to extend its track north on Main street, across the bridge, to High street; to the safety and convenience of public travel, which required the removal of the tracks of the Traction Company on Main street north of the bridge from the center to the west side thereof, and that the tracks of the Traction Company be placed on the east side of said street; to the public safety, which demanded that the railway tracks on Main-street bridge and the approaches thereto should run as near as practicable to a straight line parallel thereto, and that no connection with said track be made by diagonal switch upon said bridge or approaches; and to the power of the city to regulate the use and occupation’of its streets and bridges. Thereupon it was resolved that no diagonal switch or connecting track running at an angle or otherwise be permitted to be placed either by the Interurban Company or the Traction Company upon the bridge or its approaches until plans and specifications therefor had been adopted, and directing the city engineer to prepare such plans .and specifications. It further directed the city attorney to take such action as to him *492should seem proper to prevent either of said companies from so laying its tracks upon the bridge or its approaches. This suit is the result of the adoption of the resolution.
The undisputed evidence demonstrates that the Traction Company was at this time asserting its right under its franchise to lay a switch or turnout track upon the bridge and its approaches, and that the Interurban Company was asserting its right under its franchise to lay its track upon the bridge and its approaches, and that the city asserted its authority to control the occupation of its own streets and to regulate the laying of the tracks upon the bridge and the approaches for the use and convenience of both companies and for the accommodation and protection of public travel. The power of the city to adopt the resolution cannot be questioned. The situation, it seems to me, required that this power 'should be promptly exercised, and that the action taken was just and reasonable and such as the circumstances demanded.
The city, in the franchise ordinance, under which the Traction Company here asserts its claim to the additional track upon the bridge, expressly reserves to itself the power to control at all times the improvement and repair of the streets to the sanie extent as if no grant of the right to use them had been given. The statute also provides that a street railway ■shall be subject-to such reasonable rules and regulations as the proper municipal authorities may from time to time prescribe. Sec. 1862, Stats. (1898). The grant to the Traction Company was not an exclusive franchise to occupy Main street or the bridge for railway purposes, and it cannot be construed as limiting the power of the city to permit another company to lay its tracks thereon, and if necessary to require the Traction Company to remove its tracks to one side, provided it be furnished a suitable and convenient location. This court holds that the regulations prescribed by the city, which are here challenged, are within the power possessed by the municipality, if reasonably exercised, but determines, contrary *493to the finding of the trial court, that the resolution adopted by the common council is void as partial and unreasonable. The reasons assigned for the last conclusion seem to me ■wholly untenable.
The court condemns the proposed regulations because of the supposed effect they may have upon the relations existing between the two railway companies. It is said in the opinion:
“One result was to abrogate the contract made by the city with the Traction Company one year before the passage of these resolutions, and to confiscate whatever property had been contributed in pursuance of said contract, or whatever payments, if any, had been made therefor by the Traction Company.”
The undisputed evidence showed that no such result can follow. After the adoption of the resolution of November 28, 1905, here in question, the attorneys for the Traction Company addressed a communication to the common council, dated December 16, 1905, containing a stipulation for the speedy completion of the bridge, which was accepted on behalf of the city. In order to hasten the completion of the Main-street bridge and give the public the immediate benefit of its use, the Traction Company proposed that the city should lay the rails on the east side of the bridge in the manner specified. The rails were to be^so laid that neither company could make use of the track until the right thereto should be determined by the court. The Traction Company was to furnish the rails and to be reimbursed on the conditions stated. The east track was to remain in the possession of the city until title thereto should be adjudicated. If it should be determined that the Traction Company was not entitled to maintain and operate said east track, it agreed to convey the rails so laid to the city, or to whomsoever it should direct, upon the payment to the Traction Company of the actual cost of the rails, with five per cent, added. This stipulation continues in *494force and fully protects the rights of .the Traction Company to the property which it had contributed and the money which it had expended in connection with the track on the east side of the bridge. The track on the west side remained in its possession. The stipulation so readily entered into shows beyond question that it was not the purpose of the city, in adopting the resolution of Uovember 28th, to appropriate to itself the rails and other material furnished by the Traction Company toward the construction of the bridge, or that either party contemplated any such result.
In this connection it may be well to' state that on December 14, 1905, the common council adopted what is known as the “Randall plan” for laying the tracks of both companies on Main street, which obviated the necessity of any switch or turnout track for the use of either company upon the bridge or its approaches. This plan contemplated an interchange of tracks between the two companies, giving the west track to the Traction Company and the east track to the Interurban Company, the Traction Company to come in from the south on the east track and go out on the west track, and the Interurban Company to come in from the south on the east track and go out on the west track. There was provided a double cross-over track near High street, north of the bridge, so as to fully accommodate the running of the cars of both companies. There was, therefore, no confiscation of the property of the Traction Company under the contract of December 15, 1904, as provision had been made for reimbursement under the agreement above mentioned.
. This court, it seems to me, has given too much importance to the contract entered into between the city and the Traction Company on December 15, 1904. It does not seem to have been expressly authorized by the common council, nor does it in form or in fact grant a franchise to the Traction Company or enlarge the terms of any franchise theretofore granted. The Traction Company was then asserting a legal *495right to construct a double-track railway system upon Main street across tbe bridge. Tbe city could not determine tbe legal question involved, and it did not attempt to. It was engaged in tbe construction of tbe now bridge, and deemed it advisable to lay tbe track as part of tbe bridge, permitting tbe Traction Company to furnish tbe rails and to pay part of the cost. Tbe Traction Company agreed “to furnish all rails for tbe laying of its double track across said bridge,” and not ■for a switch, turnout, or passing track. Tbe situation was changed by tbe decision of this court, a year later, that tbe Traction Company bad no right to maintain a double track in Main street and across tbe bridge, and tbe city then bad tbe right to take such action with respect to tbe matter as it ■deemed for tbe public interest, making proper compensation for any property that might have been furnished for its use •on tbe bridge. The ordinance adopted in November, 1903, prohibited cars from passing on this bridge; hence tbe city by tbe contract of December, 1904, could not have intended tbe ■construction of a passing track by tbe Traction Company upon tbe bridge or its approaches. It is apparent that a contract providing for tbe cost of laying the rails on the new bridge in no way contemplated or recognized any claim by the Traction Company to operate a switch or turnout or passing track upon the bridge, to be connected at each end thereof with the single-track system for the purpose of allowing cars to pass on tbe bridge while going in different directions. Tbe right to maintain the additional track for such purpose was not asserted by the Traction Company until its right to maintain a double track bad been denied by this court, and tbe ■claim was then promptly repudiated by tbe city, which refused to construct a passing track upon the bridge under tbe •contract relating to tbe construction of double tracks upon the bridge. It did construct one track upon the west side of the bridge-for the use of the Traction Company, and constructed the east track on the bridge under tbe subsequent agreement *496above referred to, and then made provision for its use by both companies, which furnished them proper facilities and the traveling public the necessary accommodations. The adoption of the resolution of November, 1905, did not, therefore, deprive the Traction Company of any property or of any property right which was not subject to compensation by the city or by the Interurban Company, and which, if denied, might not be enforced by proper legal proceedings.
With respect to the adoption of the resolution of December, 1905, it is said in the opinion: “Another result was to deprive-the Traction Company of its rights under the traffic contract with the Eastern Wisconsin Railway & Light Company, such as they were.” The city had never been informed officially of the existence of any such contract, it was not a party to- it,, and it never recognized it in any manner as having any controlling power over its own action in the regulation of its streets. It is said in the opinion: “Both the city and the Eastern Wisconsin Railway & Light Company had by ordinance of November 10, 1903, recognized the right of the-Winnebago Traction Company to compensation.” It is respectfully submitted that the ordinance, as passed by the-common council and as accepted by the company, contains no such recognition on the part of the city. That ordinance-grants a franchise to the Interurban Company to lay single or double tracks and operate its road upon the streets of the-city therein named for a strictly interurban business, the company to hold the city harmless from any damages of whatever-kind or nature resulting to property owners by reason of the construction or operation of its railway. The proviso has already been referred to which prohibits the laying of more-than two tracks upon the streets, including those theretofore laid, or which any other company has a right to lay under existing franchises, and authorizes the company to operate its cars over the tracks of any other company, “subject to the-existing rights of such other company.” The Interurban. *497Company could not operate its cars over the tracks of the Traction Company without the permission of the city, nor could the Traction Company operate cars over its own tracks without such permission. The city could not grant to the Interurhan Company the right to use the tracks of the other company without the consent of the latter, and the clause quoted was doubtless inserted as a matter of precaution, and to ingraft -what the court would supply in case of any controversy upon the subject. The language can be nothing more than the recognition of a. legal condition — the statement of a conclusion of law with respect to the rights of the parties. The Traction Company was not a party to this grant, and its rights were in no way affected thereby; hence the proviso' cannot be fairly construed as a recognition of any right to compensation which would limit the power of the city to control its own streets in the interest of the public. The reasonableness of the resolution cannot be tested by simply referring to the permissive grant of this franchise, whether it recognizes the right to compensation or not, or by affirming that the regulation was in fact detrimental to one and beneficial to the other company. The power of the city cannot be thus limited- or the reasonableness of the act thus siunmarily determined. Moreover, if the traffic agreement is valid, it may be enforced in any proper proceeding brought for that purpose. The trial court has found that the Interurhan Company is solvent, and it has given a sufficient bond to insure its part of the agreement. The action of the city has not and could not prevent the enforcement of any legal rights which one company then had or now has against the other under any existing contract. It seems to- me dangerous to hold that the municipality can be restricted in the exercise of its police powers and in the control of its own streets by an independent agreement entered into- by third parties without its knowledge or consent.
The court states as a further result of the adoption of the resolution that the Traction Company was deprived of its *498right to compensation in any condemnation proceeding instituted by the Interurban Company for the purpose of acquiring the right to cross the bridge. No such consequence could follow the action of the city unless the Traction Company has acquired a vested right to occupy the east side of the bridge with its turnout track. But the court concedes that the city has the power to adopt the resolution in question, and hence it may order the removal of the track whenever necessary for public convenience and safety. Such removal might be ordered at any time, .and might now be held reasonable by this court but for the fact that the Interurban Company thereby derived some benefit. What compensation would the Traction Company be entitled to- recover for the loss of a turnout track held by such uncertain tenure ? Moreover, the Interurban' Company may never commence condemnation proceedings; if so, nothing more than nominal damages might be awarded. Can the reasonableness of municipal regulation of the streets be made to depend upon circumstances so remote and speculative when important public interests are involved ? The resolution does- not take away any vested right of the Traction Company and has not deprived it of the use of the east track upon the bridge, which has been placed there at the expense of the city for the accommodation of both railways. As already shown, the Randall plan adopted by the city furnishes adequate facilities-for the use by both companies of the tracks upon the bridge in connection with their tracks upon both sides thereof, and the public is provided with better accommodations and with adequate protection from dangerous obstructions.
The consideration controlling the decision of the court is •the supposed injury inflicted upon the Traction Company and the possible advantage derived by the Interurban Company by the adoption of the resolution in question. It is said in the opinion:
*499“Rut tlie city Rad no right to intervene in such, an ex igency and in effect annul and take away such, rights of the Traction Company, even if the public interest did: require that the passing track or turnout be removed from the bridge, because such exercise of its police power would be unreasonable under the circumstances above shown.”
The situation might, as I think it did in this case, demand the immediate exercise by the municipality of its control over the street and bridge. Nevertheless it must postpone action until rival companies asserting adverse claims to occupy the locality with their tracks have settled their differences amicably or in the courts; otherwise its action is subject to con.demnation as unreasonable and partial; The reasonableness of the regulation is made to depend upon the effect it may have upon the disputed rights of third parties as between themselves, and not upon the safety and convenience of the public. Every police regulation necessarily affects persons subject thereto, abridging the rights of some, possibly enlarging the privileges of others; but the reasonableness of the exercise of the power cannot be determined upon any such indirect consequences. The exercise of such power in the public interests cannot, as a matter of law,-be denounced as unreasonable because it naturally and necessarily affects existing conditions, and operates to the injury of one and to the advantage of another person. This court does not impugn the good faith of the city authorities in adopting the resolution, but it assumes to challenge their judgment in the attempted exercise of the power of regulation. The judgment of a legislative body, based upon a knowledge of existing conditions which no judicial tribunal can be presumed to possess, has not generally been considered the subject of review by the courts.
“The honest judgment of the municipal authorities as to what is promotive of the public welfare must ordinarily control, although not in accord with the views of the com-t.” Le Feber v. West Allis, 119 Wis. 608, 613, 91 N. W. 203.
*500Tilly v. Mitchell & L. Co. 121 Wis. 1, 98 N. W. 969, has, it seems to me, controlling weight in the determination of the question here under consideration. While the court there holds that the reasonableness of a municipal regulation may be judicially reviewed, it points out that such review involves the question of power to pass the act, and not an inquiry into its expediency, justice, or propriety. It is there said:
“The claim is and was that the ordinance of vacation was passed solely for the private benefit of the defendant corporation, and that the public good in no way demanded it, and hence that it was illegal and void. So the question really is whether in this action the validity of the ordinance can be challenged on the ground that the council acted from a wrong’ motive. Corruption is not claimed, fraud is not claimed, and want of power is not claimed; but the simple claim is that the members of the council, in exercising their legislative powers, acted from improper motives and subordinated the public interest to the private interests of the defendant corporation. The general principle that legislative acts, within the power of the legislative body to pass, are not subject to revision or control by the courts on the ground of inexpediency, injustice, or impropriety, is well settled, and has nowhere been stated with greater vigor than by this court. ... In, both of the cases quoted from, acts of the legislature were under considerationbut the same general principle has been frequently recognized as applicable” to the acts of the common council which are legislative in their character, as is the ordinance under consideration.”
And further:
“The sole claim is that the council have vacated a part of a street for a private use when it was needed by the public. This means that the motives of the councilmen were wrong and their judgment unsound. We think the courts will not entertain an inquiry into the truth of these charges. The ordinance was within their power to pass. On its face it purports; to be passed for a purely public purpose. Such a' purpose is entirely possible, notwithstanding a private benefit may at the same time inure to the defendant. Even though the council may have been wrong in its judgment, or *501■may Rave mistaken a private interest for a public one, our conclusion is that tlie courts cannot arrest the operation of the ordinance for those reasons.”
The result of the decision of the court is to deprive the city .of OsliJcosh of the authority delegated to it by the legislature to regulate and control the use of its streets in the interests of the public, and to confer that power in a limited though in a Very important degree upon the Traction Company, to be exercised by it for its own private interest and advantage. Tho municipality should determine upon what terms and conditions an interurban company should occupy its streets for interurban traffic; but this right which is to be exercised for tlie public benefit is taken away by the grant of a franchise, which is not in terms exclusive, to a street railway company, which has thereby acquired the right to maintain a turnout track upon the bridge at the main entrance of the city, and impose such terms as it deems fit for its private advantage as a condition for the admission of interurban traffic. The claim so asserted on behalf of the appellant ought not to receive the ■solemn sanction of this court.
I respectfully but emphatically dissent from the doctrine that the power of the municipality to control its own streets in the interest of the public can be subverted by an independent .agreement between third parties entered into without its knowledge or consent, or by the grant of a franchise to a street railway company which is not in terms exclusive as to a particular location therein specified, or by a contract entered into on its behalf with such company, unless authorized by the common council and approved in the manner prescribed by law for the adoption of a franchise ordinance.