(dissenting). It is pointed out in tbe Milwaukee Case (151 Wis. 520, 139 N. W. 396) tbat tbe weight ■of authority is to tbe effect tbat an obligation imposed on a ■street railway company to keep tbe portion of tbe streets between and adjacent to its tracks in a proper state of repair does not impose tbe duty of repaving. Some stress is laid •on tbe fact tbat tbe duty imposed was not simply to repair tbe pavement, but to “keep and maintain in good and thorough repair during tbe continuance of said term” a certain portion ■of tbe street. Page 529. In tbe case before us for decision now tbe street railway company is required to keep tbe street in “proper repair.” It was held in tbe Milwaukee Case tbat tbe language of tbe ordinance was broad enough to include repaving if tbe parties intended tbat it should be included, and, there being doubt about what tbe intent was, it was held tbat tbe ordinance should be construed strictly against tbe railway company and liberally toward tbe public. Proceeding on this line of reasoning, tbe court decided that tbe street railway company was bound to repave. Were it not for tbe ordinance granted defendant’s predecessor in 1884, I should find no difficulty in saying tbat tbe decision in tbe Milwaukee Case should govern tbe present one.
It must be conceded (1) tbat tbe ordinance before us does not by express language cover repaving; (2) tbat tbe majority of courts bold that it does not do so by implication; and (3) tbat tbe ordinance, being ambiguous, must be construed so as to carry out tbe intention of tbe parties, if tbat inten*384tion can be ascertained with reasonable certainty. There is no question of private or public consideration that can ever justify a court in placing a construction on an ambiguous contract known to be one that defeats the intention of the parties thereto, and neither is there any justification for construing an ambiguous act of the legislature or of a common council so as to defeat the intent of the legislative body, if that intent is manifest.
To my way of thinking it is perfectly clear that the parties to this franchise did not intend to impose the cost of repaving on the railway company.
The council when it adopted the 1884 franchise had clearly in mind that the obligation to repair did not or might not include that of repaving. Sec. 2 of that ordinance covered repairing and was literally copied into the ordinance of 1892. Sec. 3 of the 1884 ordinance expressly and definitely covered the matter of repaving. This was entirely omitted from the ordinance of 1892 and was repealed by it. So we have a case where the council had before it an existing ordinance which required both repairing and repaving to be done and where it repealed the section imposing the duty to repave and re-enacted the one which imposed the duty to repair, and yet it is said that it intended to impose both duties on the defendant. I can well see how a council might ordinarily think that the duty to repair included the duty to repave. But where the ordinance which was about to be superseded and repealed specifically imposed both duties, it is inconceivable that, if it was intended to impose both by the new ordinance, the part of the old which provided for one of them should be actually repealed. The attention of the council was sharply called to the fact that repairing and repaving were two different things.
The ratiocination by which the conclusion is reached that the council of 1892 was guilty of gross negligence, if not something worse, unless it was intended to impose the duty to *385repave, seems to me to be passing strange. Within their delegated powers common councils can grant snch franchises as they see fit. It is a perfectly harmless occupation if no one is willing to accept the thing granted. Franchises are essentially contracts, generally arrived at as the result of mutual concessions. In all probability the defendant was not in as prosperous a condition twenty-one years ago as it is now. It was then operating cars propelled by horse power. The city no doubt desired rapid transit, and the principal purpose of the 1892 ordinance was to permit the street railway company to electrify its lines. There was plenty of consideration for relieving it from the burden of repaving, and it would be assuming altogether too much to say that such relief was granted because the . council was either incompetent or dishonest.
The right to lay tracks in the street was granted subject “to such reasonable rules and regulations respecting such streets and highways and operation of cars as the said council may from time to time enact.” I do not conceive that this general provision covers anything aside from the manner in which the streets should be used and in which cars should be operated therein. It seems to me to be far fetched to say that the reservation of the right to pass the rule or regulation referred to comprehended the right to compel the construction of a part of a street. If a part, why not the whole? If the whole, then an easy way has been discovered to relieve .the city from the expense of street building along the line of defendant’s road. I confess that I am too dense to see how the right to pass a rule or regulation respecting a street gives authority to compel a user to build it. • The city having by express provision in the franchise specified what the defendant was required to do in the way of repairing streets, and haying repealed the provision of the old ordinance in regard to the repaving, it is perfectly manifest that the general provision above quoted was not intended to cover repairing or repaving.