(dissenting) It is uncontroverted that the defendant city took all the legal steps necessary to establish its right and power to build a lighting plant to supply the city and the inhabitants thereof with light under ch. 143, Laws of 1901. These steps were taken and the plant built and in operation long prior to July 8, 1911, when the plaintiff became the owner of an indeterminate permit.- The city had acquired and built the plant and the plant was in operation during 1906, to say the least. It is argued that the city did not at once or did not prior to July 8, 1911, efficiently equip this plant for both kinds of lighting, but confined its work to *15municipal lighting, and that its efforts at commercial lighting were few and feeble. I regard this part of the argument of counsel as immaterial, mere dust-throwing with the effect of obscuring the real point.
We start out with the proposition that the city had a lawful charter for both kinds of lighting, had its site purchased and its plant in operation for municipal lighting, waiting, as it lawfully might, before making the additional outlay for further extension. That the city never abandoned its rights so acquired is uncontroverted, and is further shown by the express contract with plaintiff with reference to this condition, recognizing the right and power of the city to enlarge its plant for the purpose of commercial lighting. The real significance of this stipulation is to show that there was no abandonment by the city, but a mere ad interim authority given to the plaintiff, a passerby, an interurban railway with no plant in the city but carrying a current through the city, to do commercial lighting until such time as the city should further enlarge its plant acquired for that purpose. I think the city lost no rights which it had acquired under ch. 143, supra, by delaying to extend its activities to commercial lighting under such circumstances. It did not if a city has the same rights under ch. 143, supra, as corporations organized for private gain have. Such as street railways under sec. 1862, Stats. (Wright v. Milwaukee E. R. & L. Co. 95 Wis. 29, 69 N. W. 791), or such as an electric company has under sec. 1797m — 74 (Calumet 8. Co. v. Chilton, 148 Wis. 334, 135 N. W. 131). In the case last cited it is said at page 367:
“Excusable, temporary suspensions, involving no purpose to abandon, the owner being willing and seasonably, under the circumstances, able to resume and doing so, as in this case, satisfies the calls for a ‘public utility operating under,’ etc.”
Municipal corporations should not lightly be held to have abandoned their charter powers, nor should statutes conferring power upon such corporations to acquire and operate property in their proprietary capacity be considered repealed *16by Implication or modified by any loose construction of subsequent statutes after the city bas invested its money in such property. I regard tbe rights of the city as fixed prior to July 8, 1911, and think this case should be ruled by the principle deducible from Neacy v. Milwaukee, 151 Wis. 504, 139 N. W. 409. The city was therefore not required to obtain a certificate of convenience and necessity from the railroad commission. The legislative intention that such was the law prior to July 10, 1913, and therefore applicable to this case, is persuasively indicated by the enactment of ch. 621, Laws of 1913 (sec. 1797m — 74n).
I am authorized to say Mr. Justice Keewin concurs in this dissent:A motion for a rehearing was denied, with $25 costs, on May 1, 1914.