(dissenting). I base my dissent upon the following propositions, which I state without argument to support them:
1. Sec. 1780b, Stats. (1898), conferred a franchise directly from the state to the defendant, granting to it the right to use the streets of the city to erect poles therein and string wires thereon subject to the consent of the city to such use and •occupation of its streets. Oconto City W. S. Co. v. Oconto, 105 Wis. 76, 83, 80 N. W. 1113.
2. By making a contract with the defendant obligating it under a penalty of $25,000 to erect poles and string wires thereon and to have a complete lighting plant in operation in less than four months, the city by necessary implication gave its assent to the use of the streets for such purposes, else it would be impossible for the defendant to carry' out its contract obligation with the city.
3. By virtue of sec. 1780b, Stats. (1898), and the contract made on April 17, 1909, the defendant secured an indeterminate permit under ch. 499, Laws of 1907 (secs. 1797m — 1 to 1797m — 108, Stats.), to place poles and wires in the streets to whatever extent was necessary to enable it to carry out its municipal lighting contract.
4. Sec. 1780b, Stats. (1898), was not repealed by sec. 959 — 49, Stats. (1898), nor by sec. 940b, Stats. (1898), nor by ch. 165, Laws of 1907 (sec. 1778, Stats.), nor by ch. 499, Laws of 1907 (secs. 1797m — 1 to 1797m — 108). There is no pretense that any of the statutes referred to ex*349pressly repeal sec. 17805. The question of repeal by implication is treated in State ex rel. Milwaukee v. Milwaukee E. & L. Co. 144 Wis. 386, 129 N. W. 623, and it is apparent under tbe decisions therein referred to that there was no repeal of sec. 17805 by implication.
5. The 'elator, haying surrendered the franchise under which it was operating after the appellant made its contract with the city and before the ordinance of June 7th was passed, received an indeterminate permit to engage in a commercial lighting business, but did not secure any such permit to engage in the business of furnishing lights to the city; so that when the ordinance was passed the relator could lawfully engage in the one species of the lighting business and the appellant in the other.
6. The ordinance of June 7th regulated in detail the conditions under which the streets were to be used by the appellant, the manner of replacing them when tom up, the size of the post holes, the height of the poles, the matter of changing* them from one location to another as occasion might require. Omitting the words “and private” from one sentence in the ordinance, every part and parcel of it was a proper and necessary enactment to define the rights and fix the liabilities of the appellant under its contract, and one which the city had the right to pass and the relator had the right to accept.
7. The fact that the appellant had no franchise coupled with municipal consent which entitled it to maintain poles or string wires for the purpose of doing a commercial lighting business, did not render the remaining portion of the ordinance void.
8. The appellant justified its right to insist on the validity of the ordinance because of the indeterminate permit which it held. Its answer set up a perfect defense to the cause of action set forth in the complaint, except in so far as its right to engage in a commercial lighting business was attacked. The answer therefore set up a good defense in part to the *350relator’s cause of action, and a demurrer thereto should not be sustained and the entire ordinance in effect be declared inoperative, and this without the city being made a party or being given an opportunity to be heard.
9. By the ordinance of June 7th a franchise was conferred on the appellant to erect poles and string wires for furnishing “power and heat.” The relator had no right under its franchise to furnish electricity for the purpose of furnishing power or heat, and, when it surrendered its franchise, of course took under its indeterminate permit only such powers as it had under the franchise surrendered. The city had a perfect right to grant the franchise to whomsoever it chose to erect poles and string wires to convey electricity for the purpose of conveying heat and power, and for this reason if for no other the answer states a good defense in part to the relator’s cause of action.
10. The appellant is called upon by the relator to show by what warrant it assumes the right to erect poles and string wires thereon in the public streets. It answers by saying in part that it does so by virtue of a valid franchise empowering it to use the streets in so far as may be necessary to light them and to convey electricity for heat and power' purposes. In my judgment this answer is true. I am unable to see why it does not state a good defense in whole or in part to the cause of action set forth in the petition.
WiNsnow, C. J., and Siebeokee, J., concur in the views of Mr. Justice BaeNes.A motion for a rehearing was denied March 14, 1911.