The opinion
White, J.
(dissenting). I disagree with the view that the terms under which was granted the public franchise here involved, were at the same time both a contract and not a contract; that such contract while entered into by the municipality in pursuance of' express legislative authority from the state to have “the force and effect of a contract,” although a valid and binding contract between the parties to it, viz., between the municipality and the trolley company, is not such a contract as is protected by the federal and state constitutions. The municipality is a state agency, as is also the public utility commission. If the franchise restrictions were binding as a contract upon one agent they were as such equally binding upon the other, because they were binding upon the principal of both. Without authority from such principal to contract they were binding upon neither agent; with such authority they were binding upon the principal and consequently upon both agents. To concede that they were binding as a contract upon one agent is, it seems to me, to concede that they are binding upon the principal and upon both the agents.
It is suggested that this is not so because the subject-matter of the contract is subject to the state’s sovereign police and taxing power. I think that the doctrine that contractual property rights which are subject to the state’s police power and taxing power, and, I might add, to the power of eminent domain, are, because of this, not protected from confiscation, is both novel and unsound.
It is further said that the fact that the act provided that the restrictions imposed by the municipality if accepted by the trolley company should have the “force and effect of a contract,” shows that they were not in fact a contract because if they were it would not have been necessary to give *177 them the force and effect of a contract. I take the contrary view. It seems to me that in order to invite the investment of: capital in public transportation by giving it something definite to rely upon, and to negative the idea that the terms agreed upon were merely temporary regulations, subject to change from time to time at municipal or state legislative whim, the state authorized the municipality to put them in the shape of an inviolable contract.
Again, if it be true that these terms proposed by the municipality and accepted by the trolley company as to the rate of fare to be charged, do not constitute a contract, then they may he changed by the state or by any other of its duly authorized agencies without the consent of the municipality which exacted the terms for the protection of its own people traveling upon its own streets. If, on the contrary, they constitute a contract, it seems to me that contract was made by an agency of the state having, and recognized by the state at the time as having, an interest in the subject-matter of the contract, and that therefore, under the well recognized rule as to other agents, the contract cannot he altered by the state without the consent of the interested municipality.
For the above reasons, and for those expressed in the opinion of Mr. Justice Trenchard, speaking for himself and for the Chief Justice and Mr. Justice Black, in the Supreme Court, with which reasons I agree, I vote to affirm the judgment of that court. I am requested by Chancellor Walker to say that he concurs in the foregoing views.
For affirmance — Tite Chancellor, White, J. 2.
For reversal — Swayze, Parker, Bergen, Kalisch, Hepenheimer, Williams, TAYLOR, JJ. 7.