sive. The facts stated also show that the of plaintiff's actual service. The facts and plan of combination would probably enhance circumstances thus alleged, with all the reathe efficiency of the service and that the patrons of each company would have the advantage of service connection with all the patrons of both lines, in place of service connection only with the patrons of one of the companies. It is therefore clear that so far as these public interests are concerned they are promoted by the contract and that there is no ground for objection to its enforcement in this regard. sonable implications, show that the objects of the contract are in harmony with the policy of the state, embodied in the legislative regulations of public utilities, namely, that the public welfare as regards these enterprises is best promoted through such means as affords the highest practical efficiency at the lowest cost, and that this may best be accomplished by uniting existing facilities, under proper control and regulation, ty, having regard for existing property interests and the rights and privileges appertaining thereto. Calumet Service Co. v. Chilton, 148 Wis. 334, 135 N. W. 131. It, however, is contended that the contract to meet the public convenience and necessiis void because it violates section 1791j, Stats., which provides: "Any corporation organized under the laws of this state which shall enter into any combination, conspiracy, trust, pool, agreement or contract intended to restrain or prevent competition in the supply or price of any article or commodity in general use in this state, or constituting a subject of trade or commerce therein, * shall, upon proof thereof, in any court of competent jurisdiction, have its charter or authority to do business in this state canceled and annulled." We are persuaded that the contract in question is not intended to restrain or prevent competition, nor does it so operate in conducting the defendant's telephone business, in the light of the provisions of this statute and the policy of the state respecting this subject of commerce. [2] It is contended that the contract deals with a transfer of personalty and with perIt is obvious that the statute is directed sonal services, and hence is not specifically against contracts which are violative of the enforceable, and that plaintiff has an adepublic policy of the state respecting re-quate remedy at law to compensate it for straints of trade and competition in the sup- any breach thereof. The defendant has comply of any commodity in general use consti-plied with many of the terms and conditions tuting a subject of commerce. The furnish- of the contract, but refuses to comply with ing of telephone service may be classed within the general terms of the statute as the supplying of a commodity constituting a subject of commerce. As heretofore indicated, the contract, in the light of the allegations of the complaint, does not operate to restrain the supply of this commodity to the public upon established telephone lines, nor does it tend to impose upon them arbitrary and oppressive burdens through the preven-ous refusals of the defendant to comply with tion of competition within the field of their operation. It is argued that the contract prevents the defendant corporation from seeking new fields of operation for the conduct of its business and thus operates to restrain it from supplying telephone service to the public in such new territory. An application of the provisions of the contract to the facts and circumstances as alleged in the complaint clearly show that the defendant is engaged in a local telephone business in the city of Cumberland and vicinity; that its long distance service is connected with the Wisconsin Telephone Company; that, under the contemplated arrangement, it is empowered to furnish telephone service direct to the patrons it retains and to furnish exchange service to all its former patrons who have been transferred to the plaintiff, and also to those who might contemplate securing such service on any of the lines embraced in the contract; and that the defendant is not precluded from making telephone connections with telephone companies other than the plaintiff in territory not embraced within the field the provision for the transfer to plaintiff of its rural lines, upon the terms agreed on, and refuses to refrain from constructing new rural lines. It is manifest from the nature of these contentions that the plaintiff's remedy at law, by way of compensation for breach of these conditions, falls short of doing complete justice between the parties. To ask compensation for repeated and continu the specified terms of the contract would also be impractical, in view of defendant's acceptance of the benefits of other terms of the contract. It is apparent that these different agreements constituted a mutual consideration, the one for the other. We are persuaded that the complaint states a good cause of action for specific performance. The order appealed from is affirmed. KERWIN and TIMLIN, JJ. (concurring). The case of Calumet Service Co. v. City of 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 Justice who wrote it. It was not submitted to the court for approval. We do not agree that there was in the particular mentioned in the 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 the reserved power of repeal found in section 1, art. 11, Const., is confined to the mere power to repeal the act creating a corporation, leaving the owners of the property formerly owned by the corporation free to reincorporate under the general incorporation laws and exercise and enjoy all other former corporate franchises as irrepealable grants. We are not sure that the opinion in question means this or will be so understood, but we desire to leave no doubt of our attitude on this question. The language of section 1, art. 11, is from one viewpoint narrow because it was intended thereby merely to obviate the effect of the Dartmouth College Case (Black River, etc., Co. v. Holway, 87 Wis. 584, 59 N. W. 126), and it was then thought unnecessary to go further in order to vindicate the power of the state to control its corporations notwithstanding the clause in the federal Constitution forbidding the passage by the state of laws impairing the obligation of contracts. In the Water Power Cases, 148 Wis. 124, 134 N. W. 330, 38 L. R. A. (N. S.) 526, this court held that an act of the Legislature conferring upon a corporation the right and power to build and maintain a dam in a navigable stream, which grant the corporation accepted, was nevertheless repealable at the pleasure of the Legislature even where the corporation had expended large sums of money in complying with said grant. This grant included all the corporate powers and franchises of the corporation defendant except the mere right to exist as a corporation, and yet was repealable at the pleasure of the Legislature, although of course subject to other provisions of the Constitution in force and applicable notwithstanding this conceded right of repeal. The precedents cited in that opinion support this view, and omitting mere dictum and argument, and considering the points actually decided, the great weight of judicial authority is to this effect. Further with reference to the opinion of the court in Calumet Service Co. v. City of 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. WINSLOW, C. J. (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 section 1791j, 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 section 1791j. Fearing 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 section 1791j, I wish to make my position clear. BARNES, J. I concur in the above. KROM et al. v. ANTIGO GAS CO. et al. (Supreme Court of Wisconsin. Feb. 18, 1913.) DESTRUCTION 1. GAS (§ 20*)-— NEGLIGENCE OF BUILDING-LIABILITY OF GAS COMPANY. Plaintiff used gas furnished by defendant gas company through a pipe which froze, whereupon the company sent an employé to care for the pipe. He entered the basement of plaintiff's store negligently carrying an uncovered torch, and, the gas having escaped from the feed pipe by the company's negligence in failing to provide a stopcock or to shut off the gas elsewhere, the liberated gas ignited from the torch exploded, and set fire to the store, which with its contents was burned. Held, that a complaint alleging such facts stated a cause of action against the gas company. [Ed. Note. For other cases, see Gas, Cent. WATERWORKS-FAILURE TO PROVIDE ADE- Prior to the enactment of Public Utilities Law (St. 1911, §§ 1797m-3 and 1797m-93), a water company was not liable to an individual For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes property owner for the loss of property by fire due to the water company's failure to provide an adequate supply. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 301; Dec. Dig. § 206.*] STATUTES-COMMON-LAW DUTY. The the two defendants to the complaint. essential facts stated in the complaint are these: On and prior to December 14, 1910, the plaintiffs Krom and Wolpert conducted a large general store in Antigo, and the other 3. WATERS AND WATER COURSES (§ 202*)-plaintiffs were insurance companies carrying PUBLIC SUPPLY-PRIVATE CORPORATION- insurance on the goods in said store in various amounts aggregating $40,500. The defendant gas company was a corporation manufacturing and selling illuminating and heating gas in said city, and the defendant water company was a corporation furnishing water to said city for fire protection, and to private consumers for domestic use. The gas company at the date named was furnishing the plaintiffs Krom & Co. with gas through a supply pipe which became frozen, and the gas company sent a careless and negligent 4. WATERS AND WATER COURSES (§ 206*)- employé to care for the frozen pipe, who enPUBLIC WATER SUPPLY-ADEQUATE SERV-tered the basement of the store carelessly ICE-DUTY TO FURNISH-INJURED." Public Utilities Law (St. 1911, § 1797m-3), providing that every public utility is required to provide reasonably adequate service and facilities, as applies to a public water company, is merely declaratory, of the common law; such persons and corporations having been always under a legal duty to furnish reasonably adequate service, at reasonable rates, and without discrimination, to all entitled to apply for service. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 276; Dec. Dig. § 202.*] Public Utilities Law (St. 1911, § 1797m93) provides that if any public utility shall do or cause to be done or omit any matter, act, or thing required to be done by it, such public utility shall be liable to the person, firm, or corporation injured thereby in treble the damages sustained from such violation, etc. Held, that the use of the term "injured" indicated an intentional departure from the idea of legal damage as essential to a recovery, substituting therefor actual "injury" resulting from any neglect of duty by the utility, whether that duty was owing to the plaintiff or to the municipality at large, and hence the act altered the prior rule that a water company was not liable to an individual property owner for damages resulting from the loss of his property by fire, due to the water company's failure to provide sufficient pressure. and negligently carrying a lighted torch. The gas escaped from the feed pipe by reason of the negligence of the gas company in failing to provide a stopcock or to shut off the supply of gas elsewhere, and filled the basement of the store. Such liberated gas ignited from the unprotected torch of the gas company's servant, and exploded, setting fire to the store, which with its contents was burned, to the damage of Krom & Co. in the sum of $58,681.73. After alleging these facts, the complaint proceeds as follows: "Thirty-eighth. That it was the duty of said defendant, Antigo Gas Company, to have [Ed. Note. For other cases, see Waters and had a proper cut-off, stopcock, or other deWater Courses, Cent. Dig. § 301; Dec. Dig. $vice or appliance in said feed pipe at the 206.* For other definitions, see Words and Phrases, vol. 4, pp. 3612, 3613.] 5. WATERS AND WATER COURSES (§ 206*)PUBLIC WATER SUPPLY INSUFFICIENT PRESSURE PUBLIC UTILITIES LAW-CON STRUCTION. Such section was not intended to impose liability for damages to an individual property owner for acts which were inadvertent or merely negligent, but was limited to damages sustained by the willful acts of a public utility, or acts which by reason of their wanton and reckless character are equivalent to willfulness, and hence did not impose liability on a water company for treble or any damages for loss of the property of an individual by reason of the water company's failure to maintain adequate fire pressure. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 301; Dec. Dig. 8 206.*] Appeal from Circuit Court, Langlade County; John Goodland, Judge. street line or before the same entered said building, so as to shut off the gas running through said feed pipe in the event of any obstruction therein or in said gas main, but that, notwithstanding said defendant's duty in the premises, it wholly failed and neglected to have said cut-off, stopcock, or any other device or appliance for such purpose therein, and it became impossible to prevent the flow of gas into said basement under the circumstances, to stop or cut off said gas immediately, as might have been done had the safeguards above referred to, or any of them, been used. "Thirty-ninth. That the defendant Antigo Gas Company carelessly failed and neglected to shut off the gas flowing through said main to and into said feed pipe at the power house of said defendant, or elsewhere, as it might have and should have done at once, until Action by M. Krom and others against the nearly three hours had elapsed from the Antigo Gas Company and the Antigo Water commencement of said fire, though said gas Company. From orders sustaining demurcompany was immediately and seasonably rers to the complaint, plaintiffs appeal. Or-notified of the presence of said fire. ders reversed as to the defendant gas company, and affirmed as to defendant water company. This is an appeal by the plaintiffs from orders sustaining the separate demurrers of "Fortieth. That it was by law the duty of the defendant Antigo Water Company to furnish reasonably adequate service and facilities, and to that end to provide a constant and sufficient supply of water in said water *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes it necessary to consider upon this appeal is the question whether a cause of action is stated against the water company. [2] In the case of Britton v. Green Bay, etc., Co., 81 Wis. 48, 51 N. W. 84, 29 Am. St. Rep. 856, this court held, after full argument and mature consideration, that at common law there was no liability on the part of a water company in such a case. It was recognized in that case that the question was one upon which there was not entire unanimity of opinion in the courts, but it was deemed that the doctrine of nonliability to the individual property owner in such a case was supported by the greater weight of authority and was the more reasonable and logical. We recognize the fact that since that decision two state courts have met this question and have come to the opposite conclusion. Gorrell v. Greensboro Water Co., 124 N. C. 328, 32 S. E. 720, 46 L. R. A. 513, 70 Am. St. Rep. 598; Mugge v. Water Co., 52 Fla. 371, 42 South. 81, 6 L. R. A. (N. S.) 1171, 120 Am. St. Rep. 207. See generally on this question note to State v. Gosnell, 116 Wis. 606, 93 N. W. 542, 61 L. R. A. 33, on pages 96, 97, and 98; also, German Ins. Co. v. Home W. Co., 226 U. S. 220, 33 Sup. Ct. 32, 57 L. Ed. Whatever might be our conclusion on the question were it presented now for the first time in this court, we do not think that we would be justified in changing the rule of liability laid down in the Britton Case. That rule was announced more than 20 years ago; many water com mains, as well as a constant and sufficient | of action for negligence against the gas com. pressure to force said water through the pany, and the only question which we find hose attached thereto, in the event of fire, so as to reasonably protect said building. That notwithstanding said defendant's duty in the premises, on said 14th day of December, A. D. 1910, the supply of water in the said mains and the pressure therein was wholly inadequate and insufficient, as it had been for a long time prior thereto, as was well known to said defendant, Antigo Water Company, but unknown to any of the said plaintiffs, with the result that there was not then furnished reasonably adequate facilities and service to extinguish the fire so set as aforesaid, and all such failure and neglect concurring with said negligence of said gas company destroyed said property, to the damage of plaintiffs as hereinbefore set forth. "Forty-first. That the loss and damage to plaintiffs as hereinbefore set forth was proximately caused: (1) By the carelessness and negligence of the said defendant, Antigo Gas Company, in using in said building an unprotected light, while repairing said pipe. (2) By the carelessness, negligence, neglect, and failure of said defendant, Antigo Gas Company, to provide proper shut-off, stopcock, or other suitable device or appliance in or on said gas feed pipe at the street line, or outside the point of entry into said building. (3) By the carelessness, negligence and failure of said defendant, Antigo Gas Company, in not shutting off the gas running through said gas main and feed pipes at the power house, or elsewhere, as they might have done, preventing the escape of gas therein. (4) By the carelessness, negligence, fail-panies in this state have organized and erecture, and omission of the defendants Antigo Water Company to furnish reasonably adequate service and facilities for fire protection because of such inadequate supply and pressure of water in its water mains, as well as in its failure to provide and maintain suitable and sufficient boilers in its power house on the 14th day of December, A. D. 1910, and for a long time prior thereto." It is further alleged that the plaintiffs who are insurance companies have paid to the plaintiffs Krom & Co. the amounts of the insurance by them severally carried up on the destroyed property, and are subrogated thereby to the rights of Krom & Co. to the amounts so paid. Judgment is demanded against the defendants for treble damages. Gill & Barry, of Milwaukee, T. W. Hogan, of Antigo, and S. J. McMahon, of Milwaukee, for appellants. Kreutzer, Bird, Rosenberry & Okoneski, of Wausau, Goodrick & Goodrick, of Antigo, Smart, Van Doren & Curtis, of Merrill, and Jeffris, Mouat, Oestreich & Avery, of Janesville (Edward M. Smart, of Milwaukee, of counsel), for respondents. WINSLOW, C. J. (after stating the facts as above). [1] It is very certain that the complaint states a good common-law cause ed plants at large cost and gone into business since that time. They were entitled to regard that very important question as setled by the decision in the Britton Case, and doubtless did so regard it. Their investments may truly be said to have been made in reliance upon that decision. In every practical sense it has become a rule of property which, if disturbed at all, should be disturbed only by legislative action. [3] The appellants claim in this case that it has been so changed, and this claim presents the most serious question which we Two sections of the pubmeet in the case. lic utilities law are relied on as accomplishing this result, namely, section 1797m-3 and section 1797m-93, Wis. Statutes 1911. The first named of these sections provides that "every public utility is required to furnish reasonably adequate service and facilities," and the second provides that, "if any public utility shall do or cause to be done or permit to be done any matter, act, or thing in sections 1797m-1 to 1797m-109 inclusive prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing required to be done by it, such public utility shall be liable to the person, firm, or corporation injured thereby in treble the amount of dam ages sustained in consequence of such violation; provided that any recovery, as in this section provided, shall in no manner affect a recovery by the state of the penalty prescribed for such violation." The first section named is plainly declaratory of the common law and adds nothing to the obligations of persons or corporations who, having received legislative authority to carry on the business of a public utility, undertake to do So. Such persons and corporations have always been under a legal duty to furnish reasonably adequate service at reasonable rates and without discrimination to all who are entitled to apply for service. Shepard v. Mil. Gas L. Co., 6 Wis. 539, 70 Am. Dec. 479; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Kennebec v. Waterville, 97 Me. 185, 54 Atl. 6, 60 L. R. A. 856; Madison v. Madison Gas & Elec. Co., 129 Wis. 249, 265, 108 N. W. 65, 8 L. R. A. (N. S.) 529, 9 Ann. Cas. 819, and cases cited in that case. [4] The effect of the second section cited presents, however, a more difficult question. The Legislature, having by the first-named section incorporated in the law a specific requirement that reasonably adequate service shall be furnished, now provides, by the second-named section, that, if any public utility shall omit to do any act, matter, or thing required to be done by it, such public utility shall be liable to the person, firm, or corporation injured thereby" in treble damages, in addition to any penalty owing to the state. and the substitution therefor of actual injury resulting from any neglect of duty by the utility, whether the duty neglected was one owing to the plaintiff or to the munici pality at large. [5] Our conclusion upon this preliminary question brings us to the last question which we find it necessary to consider in the case, namely, the question whether by the lastnamed section all acts and omissions in violation of the utilities law, however trivial and unintentional, are to be punished by the imposition of treble damages, in addition to a criminal penalty, or whether only willful acts and omissions are so to be punished. The law nowhere contains the word "willful," and it is strongly urged that, if we construe it to cover only willful acts, and acts which by reason of their wanton or reckless character are legally equivalent to willful acts, we shall be construing words which are so plain as to prohibit construction, and thus in effect encroach on legislative powers. This argument would possess much strength were it not for the fact that this court in a series of decisions commencing many years ago has construed similar statutes, highly drastic and penal in their nature, as not covering acts or omissions resulting from mere inadvertence or excusable neglect. Thus in Cohn v. Neeves, 40 Wis. 393, a statute providing for the recovery of treble damages against any person who should convert to his own use without consent of the owner any logs, timber, etc., floating in any of the waters of the state or lying on the banks was held, in view of its highly penal character, as only intended to apply "to a conversion where there was some element of willfulness, wantonness, or evil design in the act." It was also said in that case that the law "by way of punishment subjects the wrongdoer in certain cases to an extraordinary liability for the property of another appropriated to his use. In some cases the conversion may be merely a technical one in law, arising from accident, mistake, or even carelessness, without any evil design, and where the damages recoverable at common law afford an adequate compensation to the party injured. We can hardly think such a case was within the contemplation of the Legislature." In that case reliance was placed on the case of Wallace v. Finch, 24 Mich. 256, where a similar statute had been similarly construed. The question whether the Legislature intended by these words to substantially add to or enlarge the limits of liability laid down in the Britton Case must, we think, be answered in the affirmative. That case in substance held that there could be no recovery by the individual whose property had been destroyed on account of the negligent failure of a water company to furnish a sufficient supply of water, because there was no contract relation between the individual and the utility, and hence no duty owing and no breach of duty. The section under consideration makes no mention of contract rights and with apparent industry bases a liability on two facts only: (1) Omission to perform a duty imposed by the act (no distinction being in terms made as to the party to whom the duty is primarily owing); and (2) injury thereby to some person, firm, or corporation. The use of the word "injured" in this connection has some degree of significance; had the word "damaged" been used, the argument that there was no intention to extend the former rule would be stronger, for "damage" technically means loss resulting from an actionable wrong, ply only to willful refusals, although neither whereas "injury" carries no necessary im- the word "willful" nor any equivalent word plication of such a wrong. The use of the was used in the act itself. So, also, in the word "injured," therefore, seems to indicate case of State v. Railway Cos., 128 Wis. 449, an intentional departure from the idea of 108 N. W. 594, a section of the law which legal damage as an essential to a recovery|provided that any railroad company which Again, in Schumacher v. Falter, 113 Wis. 563, 89 N. W. 485, and Johnson v. Huber, 117 Wis. 58, 93 N. W. 826, statutes providing penalties for refusal to discharge mortgages and judgments were respectively held to ap |