Tbe following opinion was filed December 9, 1913:

Counsel for plaintiff correctly state that tbe issue on tbe merits is whether tbe defendant bad a valid franchise on tbe streets in question. It is claimed to be invalid because tbe city bad no right to grant a franchise on a street not' opened, to take effect “when opened,” even though proceedings for tbe opening of tbe street were pending when tbe franchise was granted. Another ground of invalidity relied upon is that tbe defendant did not accept the franchise in writing. Tbe resolution provided that “the rights hereby conferred shall be subject to all the terms and conditions set forth in a certain street railway franchise granted to tbe Milwaukee Electric Railway S Light Company by tbe common council of the city of Milwaukee on January 2, 1900.” Tbe franchise of 1900 provided that “all tbe right's, privileges and franchises conferred by this ordinance shall be for and during tbe term commencing at the passage and publication of this ordinance and acceptance thereof, and ending December 31, 1934.” The resolution granting tbe franchise in question reads: “All tbe rights, privileges and franchises con*85ferred by this resolution shall be for and during the term commencing at the passage and publication hereof and ending December 31, 1934.” It is claimed the language of the ordinance of 1900 and not that of the resolution of 1906 governs as to when and how the franchise shall take effect, and that under the ordinance of 1900 there must be a written acceptance.

Such in brief are the issues raised by the merits of the case. They involve the validity of the franchise under which the defendant claims to operate. Such franchise was granted pursuant to the provisions of sec. 1862, Stats. 1911. When lawfully granted, it is a franchise grant from the state and not from the municipality, as the latter acts only as the agent of the state. Manitowoc v. Manitowoc & N. T. Co. 145 Wis. 13, 129 N. W. 925. Only the state, by an action of quo war-ranto, can question the validity of the franchise under which the defendant operates its cars on the streets in question. Ashland v. Wheeler, 88 Wis. 607, 617, 60 N. W. 818; Stedman v. Berlin, 97 Wis. 505, 73 N. W. 57; State v. Milwaukee E. R. & L. Co. 136 Wis. 179, 189, 116 N. W. 900, and cases cited. The trial court, therefore, properly sustained the plea in abatement.

Mindful of the rule of law announced in the above cited cases, this court extended to the state the privilege of becoming a party plaintiff to the end that, since the case was tried on the merits, it might be finally disposed of on the record made. The state, through the attorney general, for satisfactory reasons, declined to become a party, and the action must therefore be dismissed on the ground that plaintiff has no legal capacity to maintain the same. But we have carefully considered the record before us with the result that we find no merit in plaintiff’s case. This statement should not, however, be construed as in any way affecting the rights of the state should it see fit to test the validity of the franchise in question by a proper action.

*86The judgment of the circuit court is modified by ordering a dismissal of the action on the ground that plaintiff has no legal capacity to maintain the same, instead of a dismissal on the merits, and as so modified is affirmed.

By the Gourt. — Ordered accordingly.

A motion for a rehearing was denied, with $25 costs, on Eebruary 24, 1914.