A petition for a writ of mandamus was brought by the city of Milwaukee in a lower court of the state of Wisconsin to compel the Milwaukee Electric Railway & Light Company to pave at its own expense with asphalt upon a concrete foundation that portion of Centre street, called the railway zone, which lies between the trakcs and for one foot outside of them. The paving had been specifically ordered on November 8, 1915, by a city ordinance after the city had laid such a pavement on all of the street except the railway zone. Theretofore the street had been paved from curb to curb with macadam. The company admitted that the railway zone was in need of repaving at that time; but it insisted that under an ordinance of January 2, 1900, which constituted its franchise to lay tracks on Centre street, it was entitled to repair with macadam and could not be compelled to repave with asphalt.
The case was heard in the trial court on a demurrer o the amended return. The demurrer was sustained, and the decision was affirmed by the Supreme Court. 165 Wis. 230, 161 N. W. 745. The company having failed after remittitur to file an amended return or take further action, judgment was entered by the trial court awarding a peremptory writ of mandamus directing it to pave the railway zone as directed in the ordinance. This judgment also was affirmed by the Supreme Court. 166 Wis. 163, 164 N. W. 844. The case comes here on writ of error under section 237 of the Judicial Code (Comp. St. § 1214). The single question presented is whether the ordinance of November 8, 1915, is void either under section 10 of article 1 of the federal Constitution, as impairing contract rights of the company, or under the Fourteenth Amendment, as depriving it of property without due process of law. The ordinance of January 2, 1900, which is the contract alleged to be impaired by the later ordinance, provides as follows:
'Sec. 2. * * * It shall be the duty of said railway company at all times to keep in good repair the roadway between the rails and for one foot on the outside of each rail as laid, and the space between the two inside rails of its double tracks with the same material as the city shall have last used to pave or repave these spaces and the street previous to such repairs, unless the railway company and the board of public works of said city shall agree upon some other material, and said company shall then use the material agreed upon. * * *'
The company contends that when this section is read in connection with section 9, it clearly appears that the obligation to repave cannot be imposed.
First. The Supreme Court of the state held that the language of section 2 was not distinguishable from that involved in earlier cases in which it had held that a duty to keep 'in proper repair' without qualification was broad enough to require repaving and repairing with the same material with which the street was repaved. When this court is called upon to decide whether state legislation impairs the obligation of a contract, it must determine for itself whether there is a contract, and what its obligation is as well as whether the obligation has been impaired. Detroit United Railway v. Detroit, 242 U.S. 238, 249, 37 Sup. Ct. 87, 61 L. Ed. 268. But, as stated in Southern Wisconsin Railway v. Madison, 240 U.S. 457, 461, 36 Sup. Ct. 400, 401 (60 L. Ed. 739):
'The mere fact that without the state decision we might have hesitated is not enough to lead us to overrule that decision upon a fairly doubtful point.'
Among the cases relied upon by the state court is State ex rel. Milwaukee v. Milwaukee Electric Railway & Light Co., 151 Wis. 520, 139 N. W. 396, Ann. Cas. 1814B, 123, which was cited by this court in the Madison Case, 240 U.S. 461, 36 Sup. Ct. 402 (60 L. Ed. 739), as a 'persuasive decision that the obligation to keep the space 'in proper repair' * * * extends to' repaving the railway zone with asphalt when the rest of the street is being repaved with that material. But the company points to the clause in the ordinance of January 2, 1900, which provides for repair 'with the same material as the city shall have last used to pave or repair these spaces and the streets,' and insists that its obligation is, in any event, limited to repaving with such material as the city had last used between the rails. This would put upon the city the burden of paving the whole street in case of any innovation in paving save by agreement of the company and the city. It is not a reasonable construction of the provision.