(dissenting). I have to dissent upon the ground that the result violates the prohibition against taking private property without rendering just compensation therefor and the impairment of contract obligations.
If there is a question firmly settled in this court, notwithstanding doubt is somewhat cast upon it by expressions in opinions, it is that an unconditional legislative privilege, not corporate, granted and accepted, is property which may be "bought and sold like any other property, and can no more be taken away for public purposes without tendering just compensation therefor than any other thing of value. The confusion which found place in our opinions after Att’y Gen. v. Railroad Cos. 35 Wis. 425, 460, between such a privilege and an act of incorporation was eliminated by State ex rel. Att’y Gen. v. Portage City W. Co. 107 Wis. 441, 83 N. W. 697, followed by Pittsburg T. Lab. v. Milwaukee E. R. & L. Co. 110 Wis. 633, 643, 86 N. W. 592; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 498, 83 N. W. 851; In re *631Southern Wis. P. Co. 140 Wis. 245, 258, 122 N. W. 801; La Crosse v. La Crosse G. & E. Co. 145 Wis. 408, 420, 130 N. W. 530; Calumet S. Co. v. Chilton, 148 Wis. 334, 370, 135 N. W. 131.
The suggestion sometimes made that a legislative privilege, not corporate, is within sec. 31, art. IV, of the constitution and within the reserve power of sec. 1, art. XI, relating to corporations, I am utterly unable to understand. Sec. 1, art. XI, does not deal at all with mere legislative privileges, but does deal with the creation of corporations and defining their powers. A grant thereunder is not inherently assignable. No constitutional regulation of power to grant mere privileges, not corporate, was ever supposed to be necessary. It has been common, from time immemorial, for sovereign authority to mate such grants. It was with a new manner of granting corporate powers that sec. 31, art. IV, dealt. The term there “for granting corporate powers or privileges, except to cities” refers to the words “corporations without banking powers or privileges may be formed under general laws, but shall not be created by special act except for municipal purposes,” in sec. 1, art. XI. The purpose of the latter section was to prevent the formation of mere private corporations by special act, except in special cases, while the amendment to sec. 31, art. IV, entirely prohibited the formation of such corporations except under the general law. Both sections deal with the same thing — the granting of privileges by act of incorporation, and not privileges which may be granted irrespective of any constitutional provision as was distinctly decided in In re Southern Wis. P. Co., supra.
So the question of whether the grant of a mere privilege, not corporate, is subject to alteration or repeal is to be solved by the terms of the grant, construed in the light of characterizing circumstances, not by any constitutional provision. .It has been so repeatedly held here. Chapin v. Crusen, 31 Wis. *632209; Wright v. Milwaukee E. R. & L. Co. 95 Wis. 29, 69 N. W. 791. It will be seen by these cases that whether any change in such a franchise as we have here, is legitimate, is referable solely to the terms of the grant. True, the court failed to distinguish, as it did later, between a franchise and a corporate franchise. But reading that distinction into the opinions they clearly hold that such a franchise, whether granted to a person or a corporation, is not subject to change except according to its terms, and such is the law necessarily.
We do not overlook the fact that in Manitowoc v. Manitowoc & N. T. Co. 145 Wis. 13, 129 N. W. 925, the court, arguendo, spoke of a franchise owned by a corporation, as a corporate franchise, and so under the reserve power; but I think that was unnecessary to the case and the merest inadvertence. It is clearly contrary to In re Southern Wis. P. Co. and all the other cited cases. It requires but a moment’s reflection to appreciate that if such a privilege is really corporate and so within the reserve power, it cannot be granted to a corporation by special act at all, — the very question at issue in the Southern Wis. P. Co. Case. There the contrary in Stevens Point P. Co. v. Reilly, 44 Wis. 295, was overruled, and the logic of State ex rel. Att’y Gen. v. Portage City W. Co. 107 Wis. 441, 83 N. W. 697, and Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 83 N. W. 851, followed.
It is unfortunate that after all efforts made to distinguish between a franchise and a corporate franchise, the former governed by the terms of the grant and the latter by the constitutional reservation, confusion keeps cropping out, now and then, and even passes unnoticed for a time by those who have to deal specially in respect to it. I take a measure of this to myself, though I endeavored, with the concurrence of some of my brethren to whom I submitted the matter, to correct my inadvertence at the earliest possible moment. Calumet S. Co. v. Chilton, 148 Wis. 334, 370, 135 N. W. 131. I think all *633said in tbe Manitowoc Case about a privilege under sec. 1862 of the Statutes being a corporate franchise subject to the constitutional right of alienation or repeal, is beside the case.
In this case there was a corporation in operation. The privilege was in no sense a corporate privilege. The opinion of the court practically concedes that. I am led to say what T have respecting the legislative power because the subject was advanced in this case and found some favor. However, the decision goes wholly on a construction of the statute. The idea is that, by a proper construction thereof, the right to regulate the charge for fares was not parted with by the legislature. I cannot agree with that.
It is conceded that it was competent for the state to make a bargain with the railway company as to the rate of fare to be charged and that such a bargain under legislative authority is within the constitutional guaranty against impairment, the same as one between private parties, The federal supreme court has spoken very decisively on that subject many times, particularly in Detroit v. Detroit Citizens’ St. R. Co. 184 U. S. 368, 22 Sup. Ct. 410, and Minneapolis v. Minneapolis St. R. Co. 215 U. S. 417, 30 Sup. Ct. 118.
There was no constitutional prohibition in the way of the city of Milwaukee, by legislative authorization, bargaining with the street railway company as it is claimed to have done. That it possessed such authority in very plain language cannot well be gainsaid. What could be plainer than sec. 1862: “Any municipal corporation . . . may grant to any such corporation . . . upon such terms as the proper authorities shall determine, [the use] of any streets,” etc. ? What could be plainer, inter partes, in ordinary matters ? Who would be bold enough to contend that the legislative intent was not to afford opportunity to make a contract so that a railway company could safely finance its operations ? Such certainly is as important to the public as to the railway company. The *634uncertainty, in the experience of any street railway company as to whether it has anything which it can really count on, forms a large element of expense in many ways, which, in the end, has to be charged up to the investment and liquidated in the charges for service; The idea that the public really gains any advantage by holding over an investment in such property the disturbing uncertainty, is a great mistake. The best way to get the best of service at the lowest obtainable price is to remove just as far as possible, all dangers to the reasonable income paying quality of the investment.
Now conceding, as must be done, in view of the constitution and decisions here and in the federal supreme court, that the city of Milwaukee had authority by contract to confer upon the railway company authority to charge whatever fare it might see fit, up to a specified limit, was such contract made ? That the adversary parties came together to make a contract, goes without saying, as it does that the dominant mutual idea was an exchange of equivalents. The railroad company surrendered certain things and incurred certain obligations on its side. The city in return promised the railway company enjoyment of a contract right to charge for fare, “not exceeding five cents,” except for children, etc., the right to one transfer to be incident to each ticket and opportunity to be •offered to patrons to purchase “tickets in packages of twenty-five for one dollar, or six for twenty-five cents,” usable at certain times and within certain limits. Now that seems to me to be plain. Language which is plain from every viewpoint, does not admit of judicial construction. The mutual agreement that the company may charge specified rates for service, seems by necessary inference, to mean that at its option it may charge up to the maximum. If that were not the intention of the parties, what were they contracting for? The principal thing was matter of fare. All else depended on that. Would a company leave that to be changed at the *635pleasure of the municipality, when it was tbe very foundation element of competency to economically finance its operation ? It baying relied thereon, and arranged all its financial matters accordingly, and investors having taken its securities in the same reliance, should the plain language of the contract between the parties be twisted out of the natural, ordinary meaning in the interests of municipal control ?
There is much which might be written on this matter, but there is no good which can come from my doing so. I have assumed the cause would be removed to the federal supreme court, as it seems to me to be in conflict with the federal decisions. True, the court rests the matter on the construction of the statute, but if the construction is unreasonable from the standpoint of the decisions of the federal supreme court under substantially the same circumstances, as in my judgment it is, there can be no escape by means of statutory construction from the effect of violation of the constitutional guaranties. If that were not so, a very easy way would exist of violating such guaranties and defying the supreme judi-. cial authority in respect to the matter.
I appreciate there is no purpose on the part of my brethren to circumvent the constitution. They have reached a conclusion as to the meaning of the statute which renders Detroit v. Detroit Citizens' St. R. Co. 184 U. S. 368, 22 Sup. Ct. 410, inapplicable. That is all there is to it. They have reached that conclusion by applying, in my judgment, the doctrine of Chapin v. Crusen, 31 Wis. 209, and similar cases away beyond their legitimate limits. After resolving all reasonable doubts in favor of the municipality, it yet seems clear to me that the very thing the street railway company, and the common council of the city as well, were after was settlement for a long period of the vexed question of fares. The records show, and it is a matter of public knowledge, that disputes as to fares for years have been *636causing a very disturbed condition of affairs in Milwaukee. It bad entered into the political activities of the city as no other question had, and doubtless rendered the future of the corporation so uncertain as to almost paralyze it as regards making advantageous arrangements for rehabilitation and extensions. The only thing to bring peace between the people and the corporation and enable the latter to perform its public duties in the most advantageous way to the public, was to stop, absolutely, for the length of time covered by the ordinance, the disputes over whether the rates of fare were reasonable or not. How can it be fairly said that the really prominent thing which led to the arrangement, sought to be disturbed by the rate commission under its assumption of ■authority, was not done at all ?
Where did the Railroad Commission get its authority to supersede the contract? I appreciate the answer of the court’s opinion is that it has not attempted to supersede a contract, but to enforce its terms; that, not to exceed the ordinance limit as to fares, left the field of activity to which the Commission succeeded as to what is a reasonable fare; that the meaning of the contract is the railway company shall be privileged to charge a reasonable fare not exceeding the stated rate. That comes back to the question of construction and concedes that if the construction be wrong the decision is wrong. It is appreciated that the law under which the' Railroad Commission operated expressly reserved from the grant of administrative power, power to interfere with existing contracts which were not inherent in the corporate franchise. So if there was a contract, exempt from legislative interference, fixing the rate of fare as to the railway company, the Railroad Commission usurped authority in making the order complained of. If there was a contract which left the question open to investigation as to what was the reasonable fare it could charge, leaving the ascertainment of that a matter of *637administration, then the Commission acted within tbe scope of its power. I think the former is correct.