(dissenting). Sec. 1863, Stats. (Supp. 1906: Laws of 1901, ch. 425), empowers street and interurban railroad companies to run cars in the streets “with the consent of the common council.” Such consent “shall be given by ordinance, and upon such terms and subject to such rules and regulations and the payment of such license fees as the com*429mon council . . . may prescribe.” In tbe case of Manitowoc v. Manitowoc & N. T. Co., ante, p. 13, 129 N. W. 925, tbe decisions of various courts involving statutes substantially like that quoted were reviewed, and tbe conclusion was reached that under such a provision tbe city might impose, upon a public utility, as a condition upon which its streets might be used, any terms that were not in themselves unlawful. Sec. 1780&, Stats. (1898), being the statute here involved, provides that an electric light corporation may use the streets of a city “with the consent of and in the manner agreed upon with the authorities of” the city.
I fail to see where there is any material difference between the provisions of those two statutes and why they are not in pari materia so that one should receive the same construction as the other upon the question under consideration. The exaction in the case before us was denominated a tax in the ordinance, but in reality the transaction amounted to an agreement upon the part of the defendant to pay the amount stated for the privilege of using the streets of the city. There was no law prohibiting the city from entering into such an agreement, and I think the city had a perfect right to make it, and the defendant likewise was of the same opinion else it would not have paid the tax for a long series of years. It seems to me to be a mistake to say that the provision quoted from sec. 1780Z» confers only the police power of regulation on cities. Cities under the general police powers conferred on them had this power irrespective of such provision. State ex rel. Wis. Tel. Co. v. Sheboygan, 111 Wis. 23, 86 N. W. 657; Wis. Tel. Co. v. Milwaukee, 126 Wis. 1, 104 N. W. 1009; State ex rel. Smythe v. Milwaukee Ind. Tel. Co. 133 Wis. 588, 114 N. W. 108, 315. Under the grant of general police power a city could not prohibit a public utility operating under a franchise from the state from using its streets. It could only regulate such use. State ex rel. Wis. Tel. Co. v. Sheboygan, supra. Does any one doubt that under sec. 1780b *430the right to use the public streets might be denied to a lighting company organized in the manner provided in that section ? Wherein is the difference between the expression “with the consent of . . . and upon such terms” as may be prescribed, in the one statute, and the phrase “with the consent ■of and in the manner agreed upon,” in the other ? In either case the city may refuse its consent; in either case there must ■be an agreement between the parties; and in either case, as I view it, they may agree upon any terms that are not in themselves unlawful.
It seems to me we are in effect though not in words over- - ruling the Manitowoc Traction Company Case almost before it has had time to get to the printer. So I feel impelled to dissent from the view of the court herein that this ordinance was invalid in its inception in so far as it required the defendant to contribute two per cent, of its gross income to the •city. I also disagree with the other proposition decided in the case.
The indeterminate permit provided for by ch. 499, Laws ■of 1907, is nothing more nor less than a franchise. That law confers no franchise upon public utilities. Prior to its passage franchises were granted to some public utilities directly by the state by virtue of certain statutes, the statutes ■defining the nature and extent of the right conferred. Since the passage of the law, franchises, now called “indeterminate permits,” are conferred under these identical statutes. Prior to the passage of the law certain other franchises were •conferred by local municipalities acting under delegated power from the state. Since its passage indeterminate permits are granted by these local municipalities under this same delegated power. The former statutes under which franchises were granted have been amended in some particulars by the public utilities law. Eormerly a time limit was usually fixed. Now franchises are perpetual, subject as before to the legislative right of repeal. All corporations ac*431■cepting indeterminate permits by so doing agree to sell the utilities which they own in the manner provided by the 1907 law. Before its enactment they were not compelled to do so. Where a public utility is acting under an indeterminate permit the local municipality cannot grant a permit to another corporation to engage in the same line of business, unless a ■certificate is obtained from the railroad commission stating that the public convenience and necessity demand that the second utility be authorized to go into competition with the ■older corporation. These in the main are the modifications •of existing laws in relation to the granting of franchises that were made by the public utilities law. We must still go to the statutes in existence when that law was passed to ascertain the scope and extent of the powers conferred on corporations receiving an indeterminate permit since ch. 499, Laws ■of 1907, became effective, if the permit comes directly from the state. If it comes from a local municipality we must ■examine the statute delegating the power to such municipality to grant the particular franchise and to the ordinance passed by virtue of the statute, in order to arrive at the scope -of the powers conferred.
Except as the power of a city to impose terms as a condition of granting the right to use its streets is expressly or by reasonable implication taken away by the 1907 law, it exists to the same extent that it did before. There is no express provision in the law abrogating such power, and I am unable to see where there is any repeal of these former statutory provisions by implication. There are some obvious advantages in placing the construction on the public utilities law that has 'been placed thereon in the majority opinion of the court, but this does not argue that the legislative intent has been expressed in that opinion. Laws are frequently the result of -compromises between conflicting interests. It is a matter of history that the public utilities law as originally drafted, was ■opposed by many of the cities in the state because it would *432take away from them tke right to determine questions that, were assumed to he of local interest only. It was in response-to this opposition that sec. 1797m — 87, Stats. (Laws of 1907,. ch. 499), was incorporated in the law, which section reads-as follows:
“Every municipal council shall have power: (1) To determine by contract, ordinance or otherwise the quality and character of each kind of product or service to be furnished or rendered by any public utility furnishing any product of [or] service within said municipality and all other terms and conditions not inconsistent with this act upon which such public utility may be permitted to occupy the streets, highways or other public property within such municipality, and such-contract, ordinance or other determination of such municipality shall be in force and prima facie reasonable.”
Here we have an express declaration that cities may prescribe the terms and conditions under which a public utility may be permitted to use its streets, provided such terms are-not inconsistent with said ch. 499. I fail to see where there-is a single requirement of the public utilities law that might not be carried out to its full, extent if we were to hold the provisions of the defendant’s franchise valid and binding in regard to the payment of the money involved. Ho provision of that law is pointed out that would conflict with this provision of the ordinance. There is no-satisfactory reason why cities may still grant rights and privileges under statutes existing when the public utilities law was passed, but must not couple these rights and privileges with conditions which they are empowered to impose by these same statutes.
Considerable stress is laid on sec. 1797m — 77 of the law,, which relates to the surrender of its franchise by an existing-corporation. It is very apparent that the legislature did not intend to differentiate between an existing corporation electing to come under the law and a new corporation organized after its passage. ,"Where there is a surrender of an existing-franchise the corporation receives in lieu thereof an inde*433terminate permit which confers all the rights and imposes all the obligations that were conferred or imposed by the franchise surrendered, except in so far as these rights and liabilities are modified by the public utilities law, and where such law makes no modification of the obligations imposed they remain in full force.