The following opinion was filed June 5, 1908:
WiNSLOW, C. J.
Limited powers of condemnation have been given to street and electric railway companies by our statutes (sec. 1863a, Stats.: Supp. 1906), but with the proviso that such powers shall not apply to any city or village street, alley, or viaduct unless the use thereof shall first be granted-to such company by a franchise duly passed by the governing body of the city or village. By sec. 940b, Stats. (1898), it is provided that no franchise shall be granted by [223]*223tbe governing body of any city or village until tbe application tberefor containing tbe substance of tbe privileges asked ■for shall be filed witb the village or city clerk and published in tbe official paper for not less than two weeks previous to ■action upon such application. Tbe principal contention made by tbe respondents in tbe trial court and in this court was that this latter statute bad not been complied witb prior to tbe passage of tbe street railway franchise, because tbe application specified certain streets upon one side of tbe river us tbe streets over which a right of way was desired, while tbe ordinance as finally passed gave tbe company an entirely ■different route over certain streets upon tbe other side of tbe river. Tbe trial court agreed witb this contention and held that- there bad been no application filed or published containing tbe substance of tbe privileges asked for, and on this account denied tbe petition for condemnation.
Tbe appellant strongly urges that tbe respondents cannot question in this proceeding tbe validity of tbe franchise on •account of mere irregularities in its passage, because such question can only be raised at tbe suit of tbe state; and in support of this contention tbe appellant relies upon the case of Stedman v. Berlin, 97 Wis. 505, 73 N. W. 57, and tbe cases which have followed and reaffirmed tbe doctrine there laid down. The appellant further contends that in any event tbe application was entirely sufficient under tbe statute, even if tbe question be one which can be raised in this proceeding. Tbe arguments in support of these propositions are persuasively made, but we find it unnecessary to consider them because of tbe conclusions reached upon another and more fundamental question which is fairly presented by the record, but to which little attention has been paid. Tbe petitioner is authorized by its articles of incorporation to build and operate interurban railways as well as purely urban or •city railways. It is in fact operating an interurban railway business upon the streets in question, and, while its petition [224]*224alleges only its intention to condemn for street railway purposes, it is manifest tbat in fact it seeks condemnation in its-character as an interurban railway and for interurban purposes alone, because no condemnation is either necessary or proper for purely city railway purposes. It bas a franchise from the city to build and operate a city street railway,, but none to build or operate an interurban railway. Does this satisfy the terms of sec. 1863a, Stats. (Supp. 1906), which-only gives the right to condemn a street where the use of the street has first been granted to the company by a franchise-duly passed by the city council ? In other words, Can there-be condemnation of a street for interurban purposes where the only right which has been granted by the city council is a right to use the street for purely city railroad purposes ? The answer to this question depends, of course, upon the proper construction of the section named, and this depends largely upon the history of the section as well as of the exigencies which called it into existence.
It is well understood that this court early held that the ordinary street railroad carrying passengers alone did not constitute an additional burden on the fee of the street, and hence that it could be built and operated without condemning the rights of adjoining property owners. When, however, in the natural course of events, the interurban railway came into existence by a process of evolution and commenced to carry passengers from city -to city, it was at once held that the use of highways for such purposes was an additional burden, for which the adjoining property owner must be compensated. Chicago & N. W. R. Co. v. R. & K. E. R. Co. 95 Wis. 561, 70 N. W. 678; Zehren v. M. E. R. & L. Co. 99 Wis. 83, 74 N. W. 538.
The course of the legislative evolution of the interurban railway as a corporation distinct from the true city street railway corporation was quite fully traced in the case of Milwaukee L., H. & T. Co. v. M. N. R. Co. 132 Wis. 313, [225]*225112 N. W. 663. In. that case it was shown that tbe present interurban railway bad its legislative origin in cb. 221, Laws of 1880, wbicb authorized tbe formation of corporations for the building and operating by animal power of railways for tbe carriage of passengers or freight upon tbe highways of villages and towns, but not in cities. The various acts by wbicb tbe rural railway or tramcar corporation was given greater powers (until by cb. 425, Laws of 1901, it was authorized to enter and operate its lines in cities as well as in villages and country towns, and thus became a fully developed interurban railway) were sufficiently noticed in that case and need not here be repeated. One feature of the legislation, however, which was not particularly significant in that case, but is so in tbe present case, remains to be noticed. Every act governing such corporations from the rural tramway act of 1880 up to and including tbe interurban act of 1901 made it an absolute essential that tbe consent of the local governing body should be obtained before tbe corporation could lay a foot of track or operate a car upon a street or highway. That this consent was not a consent to tbe building and operation of a mere street railway for tbe carriage of local passengers only, but a consent to the building and operation of a rural or interurban road for carriage of through passengers or freight, seems very certain. Any other construction of tbe requirement would seem absurd. When, therefore, tbe first act was passed granting limited powers of condemnation to both street and electric (or interurban) railway corporations (cb. 175, Laws of 1897; sec. 1863®, Stats. 1898), tbe interurban railway could use no highway until it bad obtained the consent of tbe local government to use the same for interurban purposes. This first condemnation act forbade tbe condemnation of streets or alleys in cities, and tbe amending act of 1899 (Laws of 1899, cb. 306) contained tbe same limitation and extended it to village streets; but it -was realized two years later that tbe [226]*226interurban railway, in order to perform its proper functions, must be clothed with the power to condemn the right to use city and village streets, and by ch. 465, Laws of 1901, sec. 1863a, Stats. (1898), was rewritten, and the provision forbidding the condemnation of city or village streets was amended by adding the words “unless the use of such street, alley or viaduct shall first be granted to such street or electric railway company by a franchise duly passed by the board of trustees or common council of such village or city.”
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The following opinion was filed June 5, 1908:
WiNSLOW, C. J.
Limited powers of condemnation have been given to street and electric railway companies by our statutes (sec. 1863a, Stats.: Supp. 1906), but with the proviso that such powers shall not apply to any city or village street, alley, or viaduct unless the use thereof shall first be granted-to such company by a franchise duly passed by the governing body of the city or village. By sec. 940b, Stats. (1898), it is provided that no franchise shall be granted by [223]*223tbe governing body of any city or village until tbe application tberefor containing tbe substance of tbe privileges asked ■for shall be filed witb the village or city clerk and published in tbe official paper for not less than two weeks previous to ■action upon such application. Tbe principal contention made by tbe respondents in tbe trial court and in this court was that this latter statute bad not been complied witb prior to tbe passage of tbe street railway franchise, because tbe application specified certain streets upon one side of tbe river us tbe streets over which a right of way was desired, while tbe ordinance as finally passed gave tbe company an entirely ■different route over certain streets upon tbe other side of tbe river. Tbe trial court agreed witb this contention and held that- there bad been no application filed or published containing tbe substance of tbe privileges asked for, and on this account denied tbe petition for condemnation.
Tbe appellant strongly urges that tbe respondents cannot question in this proceeding tbe validity of tbe franchise on •account of mere irregularities in its passage, because such question can only be raised at tbe suit of tbe state; and in support of this contention tbe appellant relies upon the case of Stedman v. Berlin, 97 Wis. 505, 73 N. W. 57, and tbe cases which have followed and reaffirmed tbe doctrine there laid down. The appellant further contends that in any event tbe application was entirely sufficient under tbe statute, even if tbe question be one which can be raised in this proceeding. Tbe arguments in support of these propositions are persuasively made, but we find it unnecessary to consider them because of tbe conclusions reached upon another and more fundamental question which is fairly presented by the record, but to which little attention has been paid. Tbe petitioner is authorized by its articles of incorporation to build and operate interurban railways as well as purely urban or •city railways. It is in fact operating an interurban railway business upon the streets in question, and, while its petition [224]*224alleges only its intention to condemn for street railway purposes, it is manifest tbat in fact it seeks condemnation in its-character as an interurban railway and for interurban purposes alone, because no condemnation is either necessary or proper for purely city railway purposes. It bas a franchise from the city to build and operate a city street railway,, but none to build or operate an interurban railway. Does this satisfy the terms of sec. 1863a, Stats. (Supp. 1906), which-only gives the right to condemn a street where the use of the street has first been granted to the company by a franchise-duly passed by the city council ? In other words, Can there-be condemnation of a street for interurban purposes where the only right which has been granted by the city council is a right to use the street for purely city railroad purposes ? The answer to this question depends, of course, upon the proper construction of the section named, and this depends largely upon the history of the section as well as of the exigencies which called it into existence.
It is well understood that this court early held that the ordinary street railroad carrying passengers alone did not constitute an additional burden on the fee of the street, and hence that it could be built and operated without condemning the rights of adjoining property owners. When, however, in the natural course of events, the interurban railway came into existence by a process of evolution and commenced to carry passengers from city -to city, it was at once held that the use of highways for such purposes was an additional burden, for which the adjoining property owner must be compensated. Chicago & N. W. R. Co. v. R. & K. E. R. Co. 95 Wis. 561, 70 N. W. 678; Zehren v. M. E. R. & L. Co. 99 Wis. 83, 74 N. W. 538.
The course of the legislative evolution of the interurban railway as a corporation distinct from the true city street railway corporation was quite fully traced in the case of Milwaukee L., H. & T. Co. v. M. N. R. Co. 132 Wis. 313, [225]*225112 N. W. 663. In. that case it was shown that tbe present interurban railway bad its legislative origin in cb. 221, Laws of 1880, wbicb authorized tbe formation of corporations for the building and operating by animal power of railways for tbe carriage of passengers or freight upon tbe highways of villages and towns, but not in cities. The various acts by wbicb tbe rural railway or tramcar corporation was given greater powers (until by cb. 425, Laws of 1901, it was authorized to enter and operate its lines in cities as well as in villages and country towns, and thus became a fully developed interurban railway) were sufficiently noticed in that case and need not here be repeated. One feature of the legislation, however, which was not particularly significant in that case, but is so in tbe present case, remains to be noticed. Every act governing such corporations from the rural tramway act of 1880 up to and including tbe interurban act of 1901 made it an absolute essential that tbe consent of the local governing body should be obtained before tbe corporation could lay a foot of track or operate a car upon a street or highway. That this consent was not a consent to tbe building and operation of a mere street railway for tbe carriage of local passengers only, but a consent to the building and operation of a rural or interurban road for carriage of through passengers or freight, seems very certain. Any other construction of tbe requirement would seem absurd. When, therefore, tbe first act was passed granting limited powers of condemnation to both street and electric (or interurban) railway corporations (cb. 175, Laws of 1897; sec. 1863®, Stats. 1898), tbe interurban railway could use no highway until it bad obtained the consent of tbe local government to use the same for interurban purposes. This first condemnation act forbade tbe condemnation of streets or alleys in cities, and tbe amending act of 1899 (Laws of 1899, cb. 306) contained tbe same limitation and extended it to village streets; but it -was realized two years later that tbe [226]*226interurban railway, in order to perform its proper functions, must be clothed with the power to condemn the right to use city and village streets, and by ch. 465, Laws of 1901, sec. 1863a, Stats. (1898), was rewritten, and the provision forbidding the condemnation of city or village streets was amended by adding the words “unless the use of such street, alley or viaduct shall first be granted to such street or electric railway company by a franchise duly passed by the board of trustees or common council of such village or city.”
Now the simple question is: What is the character of “the use” of a street which must first be granted to an interurban company before it can condemn? In view of the history of the legislation, and the fact that the law had always required that the consent which an interurban company must obtain from the local governing bodies was the consent to the use of a street or highway for interurban purposes, must it not be held that "the use” referred to in the last-named act was the same use consent to which the law had always required, namely, “the use” for interurban purposes, and this alone? It seems to us that this question must be answered in the affirmative. The fact that the same company may have been granted “the use” of the street for purely city street railway purposes cannot logically be held to meet the requirement that “the use” of the street must first be granted by the public authorities before condemnation for interurban purposes can be had. As well might it be claimed that a grant of “the use” of the street for the erection of poles and carrying of wires for an electric lighting system would satisfy the requirement.
The question has not been met before in this court. It doubtless might have been raised in the cases of Abbott v. Milwaukee L., H. & T. Co. 126 Wis. 634, 106 N. W. 523, and Marsh v. Milwaukee L., H. & T. Co. 134 Wis. 384, 114 N. W. 804, but in both these cases the right to condemn was not challenged, and hence the question before us in the pres[227]*227ent case was waived. This construction is' also in accord with the principles governing condemnation by general commercial railway companies, for these last-named companies acquire the right of condemnation only by virtue of their adoption of statutory articles of incorporation which under the statutes operate as a grant by the state to cross or occupy streets. The idea in both cases is that the grant of the public consent must precede the condemnation of the private interest. This seems entirely logical and eminently reasonable.
The necessary conclusion is that the judgment below was right. If, as alleged in the appellant’s petition, this proceeding is brought to condemn the right to maintain and operate a city street railway only, then it was rightly dismissed because no such condemnation is necessary. If, on the other hand, it is brought to condemn the right to maintain and operate an interurban railway, it was rightly dismissed because the petitioner had never, acquired from the common council the right to use the street for that purpose.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied September 29, 1908.