*373The following opinion was filed October 21, 1909:
Mabshaix, J.(dissenting in pa/i'i). It seems proper, 'though it is unusual, for one, after having written the opinion •of the court, with which the writer is in harmony in the main, by an independent opinion to state such individual views as :are not in such harmony. I have taken that method on other ■occasions and am constrained to follow it as a practice where it can be done without prejudice to vindicating fully the court’s judgment of the case. So much for what may seem somewhat novel in writing at the same time the main and a dissenting opinion, in' part, as well.
I will not add here more than a suggestion to what is said in the decision indicating doubt as to whether the contract for maintenance of the telephones indicates with sufficient certainty the time of its termination to take it out of the rule as regards terminability at the option of either party. Much ■could be said on that question. I rather incline to the view that the parties to the contract did not intend that the agreement should be substantially perpetual.
The conclusion of the court that the demurrer for improper joinder of causes of action was well taken, involved a decision that two good causes of action were, in form, stated in the complaint, one against the Railroad Commission to secure judicial ■condemnation of the order to discontinue the telephone service under the contract upon the ground of such order being unlawful, and one against the telephone company to prevent its terminating such service. Probably the latter cause of action, had the question been raised properly, would have been hard to maintain in equity in face of the general rule that any party to a contract may breach it and submit to responsibility for. damages. That is subject to exceptions, perhaps, covering cases where the injury is irreparable by an award of damages, but it would be difficult to bring this case within such exception and we pass that. - .
Th'e cause of action against the Commission is expressly *374provided for by cb. 499, Laws of 1907. Tbe legislative plan is that tbe validity of any order of tbe Commission shall only be challenged in an action in wbicb such Commission is-a party defendant, commenced in Dane county. See.. 17 97m — 64. That provides for quite a summary way of testing such a question and was clearly designed to he exclusive,, tbe idea being that business interests should not be prejudiced by long-continued uncertainty as to validity of a Commission regulation, and that in case of such validity being challenged by judicial proceedings to annul it tbe officials charged with the duty of enforcing it and who originated it should have opportunity to be heard, representing tbe state. That such is tbe scheme written into sec. 1797m — 64 and the associate sections is made plain beyond reasonable doubt in tbe fact that by sec. 1797771- — 65 a short limitation, upon tbe right to- challenge the validity of a Commission order, is created. It is there provided, in effect, that unless an action shall be brought in Dane county against tbe Commission to test tbe validity of any determination made by it within ninety days after tbe entry thereof, no question in that regard shall be regarded as open to judicial interference. All rights in that regard “shall terminate absolutely at the end of ninety days after such entry or rendition” are the unmistakable words of the law.
Pursuant to the statute this action was commenced in Dane county, It is clear that the dominant purpose was to test tire validity of the order requiring discontinuance of the telephone service. The able lawyer who commenced the action should not be condemned as having made such a blunder as to commence an action seeking to prevent the telephone company from removing its telephones from the city buildings, yet left the order requiring such removal unchallenged, so that, in case of a judgment in plaintiff’s favor as to the telephone company, the latter would be immediately brought face to face with a written law, in effect, plainly requiring it to do the very thing-it was prohibited from doing by the judgment.
*375Had, the plaintiff not joined the two canses of action, so really dependent upon each other as aforesaid, and made the telephone company alone a party, under competent legal advice, such company would, doubtless, have seasonably moved the court for an order bringing in the Commission, to avoid being ultimately placed in the probable uncomfortable situation of inability to obey the final judgment without violating an unimpeachable order of the Commission, and inability to obey such order without defying the judgment of the court.
Again, in case of the nonjoinder the circuit court would have observed, at once, that it was impossible to deal effectually, fairly, with the relations between the plaintiff and the telephone company, without at the same time passing upon the validity of the Commission’s order. .-So it would have faced a situation unmistakably within the contemplation of the legislature when it incorporated into the Code the direction that “when a complete determination of the controversy cannot be had without the presence of other parties, or any persons not parties to 1h.e action have such interests in the subject matter of the controversy as require them to be made parties for their due protection, the court shall order them to be brought in; . . Sec. 2610, Stats. (1898).
A failure under such circumstances to observe that very salutary Code provision would, it seems, have been such plainly fatal error as to require a reversal on appeal in case of this court obtaining jurisdiction of the cause, even if the question was not raised by any party to the litigation. McDougald v. New Richmond R. M. Co. 125 Wis. 121, 129, 103 N. W. 244; Washburn v. Lee, 128 Wis. 312, 320, 107 N. W. 649.
I am unable to see any escape from the foregoing; neither can I see any warrant for holding that in creating the method prescribed in the act of 1907 for challenging the validity of a Commission order by action, the legislature did not intend that all the Code provisions for the orderly and proper conservation of the rights of parties should apply to the statutory *376action. On the contrary, it seems the lawmaking power must have had that in contemplation and not have thought to create a system that might cause such a clash of duties as must inevitably sometimes occur under such a practice as the decision in this case lays down. I cannot escape the conclusion that such practice runs directly counter to the plain mandate of the Code, and the familiar principles of equity which such mandate dignified by incorporating them into the written law.
The validity of the contract is germane to the validity of the order, since if the former be valid it is beyond the jurisdiction of the Commission to interfere with its execution, as indicated in the decision of the court. The validity of the order is, for the same reason, germane to the validity of the contract.
So the two matters were joinable upon the most familiar of equitable principles. The Commission was a proper party, since the scheme of the law of 1907 is that it shall represent the state in such a matter, if the dominant purpose of the action were to prevent the telephone company from removing the telephones from the city buildings, and the telephone company was a proper party if the dominant purpose of the action were to nullify the Commission’s order, while if the dominant purpose were to deal with the telephone service, as such, then the validity of the contract and of the order were both germane thereto.
Thus in any aspect of the matter, the Commission and the telephone company were properly brought into court in one action to settle all the questions so inseparably dependent upon each other. In no other way could complete or real justice be done to any party to the litigation.
“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.” Sec. 2603, Stats. (1898) ; Gager v. Marsden, 101 Wis. 598, 607, 77 N. W. 922.
*377Further discussion does not seem necessary to demonstrate the correctness of my. position that, by the plain provisions of the Code, the Commission was not only a proper but was a necessary party to the litigation against the telephone company, and the latter was not only a proper but was a necessary party to the litigation against the former, — and to absolve myself from personal responsibility for upholding the contract and at the same time dismissing the Commission from the suit, so that the telephone company may not be able to enjoy the relief it obtained by the judgment without incurring the severe penalties of the Commission law for violation of its order, which, if not valid at the start, may become so by limitation upon the use of judicial remedies for questioning such validity.