(concurring). I agree with the result solely on the ground that the policy of this state as evidenced by the Public Utilities Act contemplates and provides for just such situations as will be produced by the contract here attacked, namely, situations where the public will be served by one public utility to the exclusion of competing companies of the same kind, and where the ordinary effects of such a monopoly, to wit, the raising of rates of service to excessive figures, will be prevented by the utilities commission. The idea of the law is that monopoly so regulated is preferable to ruinous competition ending in unregulated monopoly.
In my judgment the public utilities law changed the policy of the state with reference to competition between utilities of this kind, and modified sec. 1791/, Stats., so as to make agreements of this kind possible and legal, which before the passage of that act would have fallen within the inhibition of sec. 1791/.
Rearing that the opinion of the court may be understood as intimating that the agreement in the absence of the public utilities law could be upheld in the face of sec. 1791/, I wish to make my position clear.
BarNes, J. I concur in the above. KeewiN J., and TimliN, J.The case of Calumet S. Co. v. Chilton, 148 Wis. 334, 135 N. W. 131, is cited in the opinion of the court, and fearing that this citation and our silence would be considered as an approval of some dicta in that case we append this note. The opinion therein by Justice Marshall filed March 4, 1912, is not the opinion of the court and reflects only the personal views of the learned jus*365tice wbo wrote it. It was not submitted to tbe court for approval.
We do not agree that there was in tbe particular mentioned in tbe opinion last referred to a mistake in La Crosse v. La Crosse G. & E. Co. 145 Wis. 408, 130 N. W. 530. We cannot assent to any suggestion that tbe reserved power of repeal found in sec. 1, art. XI, Const., is confined to tbe mere power to repeal tbe act creating a corporation, leaving tbe owners of tbe property formerly owned by tbe corporation free to rein-corpórate under tbe general incorporation laws and exercise and enjoy all other former corporate franchises as irrepealable grants. We are not sure that tbe opinion in question means this or will be so understood, but we desire to leave no doubt of our attitude on this question. Tbe language of sec. 1, art. XI, is from one viewpoint narrow, because it was intended thereby merely to obviate tbe effect of tbe Dartmouth College Case, 4 Wheat. 518 (Black River Imp. Co. v. Holway, 87 Wis. 584, 59 N. W. 126), and it-was then thought unnecessary to go further in order to vindicate tbe power of tbe state to control its corporations notwithstanding tbe clause in tbe federal constitution forbidding tbe passage by tbe state of laws impairing tbe obligation of contracts. In the Water Power Cases, 148 Wis. 124, 134 N. W. 330, this court held that an act of tbe legislature conferring upon a corporation tbe right and power to build and maintain a dam in a navigable stream, which grant tbe corporation accepted, was nevertheless repealable at tbe pleasure of tbe legislature, even where tbe corporation bad expended large sums of money in complying with said grant. This grant included all tbe corporate powers and franchises of tbe corporation defendant except tbe mere right to exist as a corporation, and yet was repealable at tbe pleasure of tbe legislature, although of course subject to other provisions of tbe constitution in force and applicable notwithstanding this conceded right of repeal. Tbe precedents cited in that opinion sup*366port tbis view, and, omitting mere dictum and argument and considering tbe points actually decided, the great weight of judicial authority is to this effect.
Further, with reference to the opinion of the court in Calumet S. Co. v. Chilton, supra, we desire at the earliest practicable moment to withdraw any acquiescence in the dicta found in that opinion to the effect that a municipality may not do its own lighting if there is present in that municipality an electric lighting company holding an indeterminate permit and standing ready to supply the city with such lighting at rates fixed by it or by the railroad rate commission. The contrary would be to hold that through the railroad rate commission the taxpayers of the municipality may be taxed for the purpose of paying dividends or aiding to pay dividends on the stock or interest on the bonds of an impecunious public service company. We do not think the legislature could do this, nor could any commission deriving its power from the legislature. This would be the result of a ruling which would forbid the city to do its own lighting and compel it to buy from the single public utility within its boundaries, at the same time permitting this utility itself, or the railroad rate commission, to fix rates adequate to give the private investors in the stock and bonds of such public utility a fair return upon their investment, if without such public lighting there would not be a fair return. Patrons or consumers of electric light are free to contract or refuse to contract with such public utility, but in the case mentioned the taxpayer would have no such option.