In Banc. Original proceeding by the state, on the relation of James W. Garner, for a writ of mandamus against the Missouri & Kansas Telephone Company. Peremptory writ denied.

R. J. Ingraham, O. H. Dean, E. E. Yates, Garland M. Jones, and Jas. W. Garner, for relator. Rozzelle, Vineyard & Thatcher, Jno. C. Tarsney and W. M. Williams, for respondent.

PER CURIAM. On a rehearing, the following opinion by VALLIANT, J., is adopted as the opinion of the court in banc. GANTT, FOX, BURGESS, and VALLIANT, JJ., concur. MARSHALL, J., concurs in the result, for reasons given in his separate opinion. LAMM, J., dubitante. BRACE, C. J., dissents.

VALLIANT, J. This is an original proceeding in this court to obtain a writ of mandamus. Respondent is a telephone company, incorporated under the laws of this state, engaged in furnishing telephone service in Kansas City and adjacent territory. It was incorporated in 1882 under article 5, c. 21, Rev. St. 1879 (now article 6, c. 12, Rev. St. 1899), and has ever since the date of its incorporation owned and operated a system of telephones in Kansas City. In September, 1902, Kansas City adopted an ordinance fixing the maximum rate to be charged by telephone companies for their service in that city. The relator requested the respondent to furnish him a telephone and telephone service in his office at the maximum rate fixed by the ordinance, which he tendered, but the respondent refused to furnish it at that rate, whereupon relator instituted this suit to compel respondent to do so. Respondent in its return pleads several defenses. The one which is of first importance is that the city had no authority to enact the ordinance. If respondent is correct in that proposition, there will be no necessity for looking into the other defenses pleaded.

Prior to the adoption of what is called the "Freeholders' Charter," which was in 1889, Kansas City had a special charter, first granted in 1853, and afterwards several times amended, but there was nothing in it authorizing the city to regulate telephone companies or fix the rates to be charged for telephone service. Section 16, art. 9, of our Constitution adopted in 1875 ordains: "Any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this state," etc. In 1887 (Acts 1887, p. 42) the General Assembly passed an act which in the briefs is called an "Enabling Act," the object of which was to provide the means for cities to avail themselves of that constitutional privilege and form their own

charters. In that act were the following two sections:

"Sec. 50. Such city shall have exclusive control over its public highways, streets, avenues, alleys and public places, and shall have exclusive power, by ordinance, to vacate or abandon any public highway, street, avenue, alley or public place, or part thereof, any law of this state to the contrary notwithstanding.

"Sec. 51. It shall be lawful for any such city in such charter, or by amendment thereof, to provide for regulating and controlling the exercise by any person or corporation of any public franchise or privilege in any of the streets or public places of such city, whether such franchises or privileges have been granted by said city or by or under the state of Missouri or any other authority." Those are now sections 6408 and 6409, Rev. St. 1899.

Under that act, and by virtue of section 16, art. 9, of our Constitution above quoted, Kansas City adopted its present charter in 1889, and in that charter the two sections of the enabling act above quoted are literally adopted. The respondent telephone company had already been planted in the city and doing business there several years before the charter was adopted. In section 1, art. 3, of the charter, it is provided that the city shall have power by ordinance

to regulate the prices to be charged by telephone, telegraph, gas and electric light companies, and to compel them and all persons and corporations using, controlling or managing electric wires for any purpose whatever to put and keep their wires under ground and to regulate the manner of doing the same." There was also in the charter what is called the "general welfare" clause, which authorized the city to pass any ordinance that "may be expedient in maintaining the peace, order, good government, health and welfare of the city, its trade, commerce and manufactures, or that may be necessary and proper for carrying into effect the provisions of this charter." If the city had power to enact the ordinance fixing the maximum rate for telephone service in question, it is to be found in that clause of the Constitution, those sections of the statute, and those charter provisions above quoted. In so far as the ordinance depends upon the charter, there is no doubt of the authority; the charter expressly authorizes it. But whether the provision of the charter is backed by lawful authority is the serious question in the case.

It is not questioned that the state has power to keep telephone corporations in this state within reasonable bounds in respect of charges for their service, nor can it be questioned that the state may delegate that power to be exercised by a municipal corporation within its limits, but the question is, has the state delegated that authority to this city? Until the adoption of our Constitution in 1875

all cities in the state derived their charter powers from the General Assembly, and therefore whatever was contained in a city charter had the full force of a legislative enactDent. But under that Constitution cities of certain descriptions were authorized to frame their own charters. A charter framed under that clause of the Constitution, within the limits therein contemplated, has a force and effect equal to one granted by an act of the Legislature. But it is not every power that may be essayed to be conferred on the city by such a charter that is of the same force and effect as if it were conferred by an act of the General Assembly, because the Constitution does not confer on the city the right to assume all the powers that the state may exercise within the city limits, but only powers incident to its municipality, yet the Legislature may, if it should see fit, confer on the city powers not necessary or incident to the city government. There are governmental powers, the just exercise of which is essential to the happiness and well-being of the people of a particular city, yet which are Dot of a character essentially appertaining to the city government. Such powers the state may reserve to be exercised by itself, or it may delegate them to the city, but until so delegated they are reserved. The words in the Constitution, "may frame a charter for its own government," mean, may frame a charter for the government of itself as a city, which includes all that is necessary or incident to the government of the municipality, but not all the power that the state has for the protection of the rights and regulation of the duties of the inhabitants in the city, as between themselves. Nor does the Constitution confer unlimited power on the city to regulate by its charter all matters that are strictly local, for there are many matters local to the city, requiring governmental protection, which are foreign to the scope of municipal government. In none of the cases that have been before this court bringing into question the charters of St. Louis and Kansas City under the Constitution of 1875 have we given to this constitutional provision any broader meaning than above indicated. St. Louis v. Bell Tel. Co., 96 Mo. 623, 10 S. W. 197, 2 L. R. A. 278, 9 Am. St. Rep. 370; State v. Field, 99 Mo. 353, 12 S. W. 802; Kansas City v. Scarritt, 127 Mo. 646, 29 S. W. 845, 30 S. W. 111; State ex rel. Subway Co. v. St. Louis, 145 Mo. 574, 46 S. W. 981, 42 L. R. A. 113; Kansas City v. Stegmiller, 151 Mo. 189, 52 S. W. 723; Young v. Kansas City, 152 Mo. 662, 54 S. W. 535.

The regulation of prices to be charged by a corporation intrusted with a franchise of a public utility character is within the soyreign power of the state that grants the franchise or that suffers it to be exercised within its borders, and that power may be with wisdom and propriety conferred on a municipal corporation; but it is not a power appertaining to the government of the city,

and does not follow as an incident to a grant of power to frame a charter for a city government. The authority of Kansas City to insert in its charter the power to regulate the price to be charged for telephone service within the city is not conferred by the constitutional provision above quoted. Is it conferred by what is called the "Enabling Act" of 1887? The purpose of that act was to enable cities of the class named to avail themselves of that constitutional provision. It is entitled "An act providing that any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government and regulating the same." There is nothing, therefore, in the title that indicates an intention to confer on such cities any power except that conferred by the Constitution. In its grant of power it so closely copies the language of the Constitution that its meaning to keep within the lines there drawn is obvious. There is nothing in the whole act of 54 sections that purports to confer on the city any powers except those appertaining essentially to the government of the city, unless, as is contended by the relator, sections 50 and 51 above quoted confer such powers. Section 50 confers on the city "exclusive control over its public highways, streets, avenues, alleys and public places," etc., and section 51 authorizes the city to provide in its charter "for regulating and controlling the exercise by any person or corporation of any public franchise or privilege in any of the streets or public places of such city, whether such franchises or privileges have been granted by said city, or by or under the state of Missouri, or any other authority." The exclusive control of its streets as granted in section 50 is an attribute of municipal authority, and could have been adopted in the charter, under the authority of the Constitution, without the express sanction of the General Assembly. The word "exclusive," however, in that connection, is not to be given its unlimited meaning, but must be understood as subject to the control of the state whenever the state chooses to assume control. The constitutional grant of power under which the charter is formed says that it must always be subject to the Constitution and laws of the state, which we interpret to mean that in all matters not appertaining to city government the charter is subordinate to the will of the General Assembly. The Legislature, in conferring on the city the exclusive control of its streets, meant exclusive control for the purposes of the city government, not to the exclusion of the state in other matters. The General Assembly, except as limited in the Constitution, has jurisdiction to grant franchises to be exercised in the streets of the cities and other public highways in the state, and that jurisdiction has not been surrendered either to cities with charters under the Constitution or to other municipalities.

In adopting these two sections, 50 and

51, of the so-called "Enabling Act," the Legislature had in view the necessity of power in the city to control its streets and other public places, and the power in the state to grant franchises to be exercised by the grantee in the streets and other public places of the city, and it was not difficult to foresee that a clash might occur between the city in its exclusive control of the street, and the private corporation in the exercise of the franchise granted by the state. Therefore, after granting to the city, as it did in section 50, control of its streets, the thought occurred to the lawmakers that there were private corporations organized and to be organized under the laws of this state with express authority to use the streets and other public highways in the exercise of their franchises, and, in order to prevent any clash that might occur between the city in its control of the streets and the private corporation in its use of the same, section 51 was added, which gave the city power to regulate and control the private corporation in its use of the street. Under the power the city may regulate the planting of poles, wires, etc., or require the wires to be put under ground, or do anything within reason to render the use of the street by the private corporation as little of injury to the public as may be. But the section does not confer on the city the power to regulate the prices to be charged by the telephone company for its service to the inhabitants of the city.

The peremptory writ is denied.

MARSHALL, J. I concur in the result announced in this case. But as I do not fully agree with the position or contention of counsel on either side of the case, or with all that is said in the opinion rendered herein, I deem it proper to briefly express my reasons for so doing.

It is not my purpose at this time to discuss at length the many and important legal and constitutional questions that have been so ably argued by counsel in this case. The argument has taken a very wide range, and has covered many points concerning which this court has not heretofore been able to agree or to formulate any fixed, general rules which could solve all the cases that have arisen or that may hereafter arise. In brief, the relator contends that Kansas City has express power, under her charter, to regulate and fix the prices that may be charged for telephone service within the corporate limits of the city; that if such is not the case, then the enabling act has conferred that power upon the city; that, under section 16 of article 9 of the Constitution, Kansas City was authorized to adopt a charter which would regulate all matters of mere local concern as distinguished from matters of state concern, and that the General Assembly of the state has no power, even by a general law, to change such local regulations so adopted by the city; that as to even

matters which are not properly local, but as to which the state has a concern, Kansas City has the power, under its charter, to adopt regulations or enact laws that will be legal and binding as to all subjects upon which the General Assembly of the state has not spoken, but that thereafter the General Assembly has power, by general law, to change such regulations. It is not necessary herein to state the various contentions of the defendant.

So

I think that it is extremely unfortunate that this court ever attempted to solve the problem by drawing a distinction between matters of mere local concern and matters of state concern, and to say that, as to matters of mere local concern, the municipality has power to legislate. To my mind, no fixed, certain, general, or intelligible rule can be formulated upon such a distinction which will answer or solve the questions that will arise. There are many matters which are in a sense local, but in which the state at large has also a direct interest. that the attempted distinction would necessarily fail when applied to such matters. I think experience has now conclusively shown the necessity for this court to adopt some rule of construction which will solve all such questions. I am firmly convinced that there is but one safe ground upon which the courts can rest the rule, and that is to hold: First, that it is within the power of the General Assembly to delegate to a municipality a portion of the state's police power, under which it will be competent for the city to enact police regulations—that is, such regulations as affect the citizens in respect to their relations to the municipality, and in their conduct towards each otherbut that such police regulations can only be enforced by fine or imprisonment; second, that it is competent for the state to confer upon a municipality the right to enact regulations, laws, or ordinances that are purely municipal-that is, such as regulate the governmental or business affairs of the city, and of the citizens in their conduct towards the city, or such as regulate the conduct of municipal officers, and the like; third, that, under the Constitution of this state and the decisions of this court, it is not competent for the Legislature to delegate to a municipality any portion of the legislative power of the state, by which I mean the power to make laws, to confer civil rights, to create civil liabilities, to provide civil remedies, to punish by civil action any acts of commission or omission of duty, or to create any civil right of action between citizens inter sese. I am thoroughly persuaded that it never was within the contemplation of the framers of our system of government, or of our Constitution, that any city, whether organized under the general laws of this state, or under the provisions of the Constitution which allow cities to frame their own char ter, to confer upon cities anything more than

a police power and a strictly municipal power, and that the power to enact all laws of civil conduct, and to prescribe all civil remedies among citizens, in short, to enact laws as distinguished from municipal regulations, is expressly reserved to the Legislature of this state, and cannot be delegated by it. In my judgment, the whole subject would be simplified, and a plain rule of interpretation afforded, by adopting such a distinction between the powers of a city and the powers of the General Assembly of the state. I, therefore, have reached the conclusion that it is no part of a municipal power to regulate the prices that may be charged for telephone service, any more than it is to regulate the prices that may be charged for any quasi public service, or for the sale of the necessaries of life. All such matters fall within the domain of legislative powers. Hence I therefore think that Kansas City could not, by its charter, take unto itself the power claimed in this case, and that it was incompetent for the General Assembly to delegate such power to Kansas City.

At first I was of opinion that as the defendant is organized under article 6 of chapter 12 of the Revised Statutes of 1899, and as that article conferred upon the defendant the right to do telephone business, "and to make such reasonable charges for use of the same as they may establish," it was within the power of the court to determine whether the charges established by the defendant were or were not reasonable, and that the question could be determined in a proceeding by mandamus. It is argued, however, that the power to fix such charges is a legislative power, which can only be exercised by the General Assembly, and that the court has no power to fix the same. Upon further reflection I have come to the conclusion that the true construction of the provisions of the article quoted is that the defendant may fix such reasonable charges as it sees fit, subject, however, to the right of the General Assembly, by general law, to fix such reasonable charges, and that the power of the court is limited to determining, in a proper case, whether the charges fixed, whether by the company or by the Legislature, are reasonable charges, and that such question cannot be decided in a proceeding by mandamus. I believe that the statute does not confer upon the defendant an absolute right to determine what shall be a reasonable charge, and I also believe that even the Legislature cannot arbitrarily and oppressively fix a charge that will amount to a deprivation of the privileges and franchises conferred by law upon the defendant company. The General Assembly, it is true, right repeal the whole act in relation to telephone companies, and leave the subject without legislative regulation, but as long as the Legislature permits a company to engage in such business it is beyond the

power of the Legislature to fix the charges it may make at a sum which would be destructive to its business. The power to regulate does not mean the power to destroy. Under the guise of regulation, it is incompetent for the Legislature to destroy franchises which are authorized by law, or to so lay down the manner of transacting a legitimate business as to make it impossible to conduct such business except at a loss.

I shall not attempt now to indicate in what manner or form of proceeding the right of the court to construe or determine the reasonableness of the charge, whether established by the defendant or by legislative act, can or must arise. I shall content myself now with saying that I don't think the question can be properly raised in a proceeding by mandamus.

The foregoing sufficiently indicates my reason for concurring in the result, only, in this case.

In re SEVENTEENTH ST. KANSAS CITY v. KANSAS CITY, FT. S. & M. R. CO.

(Supreme Court of Missouri, Division No. 2. June 6, 1905.)

CONDEMNA

1. MUNICIPAL CORPORATIONS TION PROCEEDINGS-ABANDONMENT. In the absence of statutory regulations to the contrary, a municipal corporation may discontinue proceedings to condemn property for public uses, and abandon the public improvement in question, at any time before the making of a final award in the nature of a judgment in favor of the property owners for their compensation.

[Ed. Note. For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 527.] 2. SAME-OPENING STREET OF PROCEEDINGS-PRESUMPTIONS.

ABANDONMENT

Where it does not appear that a city took any steps to continue street-opening proceedings after the passage of an ordinance confirming a verdict of viewers, and the city did not appear in a subsequent appeal taken by a property owner, it will be presumed that the city abandoned the improvement.

3. SAME - CONFIRMATION OF PROCEEDINGSRIGHT OF APPEAL.

Where the property of appellant in streetopening proceedings was neither taken, damaged, nor assessed, but was in identically the same condition after the return of the verdict of the viewers' jury, and a confirmation thereof by the city council as before, he was not authorized to appeal, within Kansas City Charter, art. 7, 85, authorizing a person affected by the proceeding, either as the owner of property taken or damaged, or the owner of property assessed who feels aggrieved, to appeal. 4. SAME-AFFIDAVIT OF APPELLANT-SUFFI

CIENCY.

Where the affidavit of an appellant in street-opening proceedings merely stated that he was the owner of certain property affected by the judgment, but did not allege the appellant's interest in the proceeding, as required by Kansas City Charter, art. 7, § 5, it was insufficient to support the appeal.

Appeal from Circuit Court, Jackson County; Edward P. Gates, Judge.

Proceedings by Kansas City to acquire land for the opening of Seventeenth street. From a judgment assessing damages, the Kansas City, Ft. Scott & Memphis Railroad Company appeals. Reversed.

This cause comes to this court by appeal from a judgment of the circuit court of Jackson county, Mo., against the defendant. These proceedings were begun by the passage of an ordinance of Kansas City, Mo. (No. 16,129), which was in words and figures as follows:

"An ordinance to open and establish Seven

teenth street from the west line of Holly street to the westerly line of Franklin street.

"Be it ordained by the common council of Kansas City:

"Section 1. That Seventeenth street be and the same is hereby opened and established from Holly street to the westerly line of Franklin street the boundary lines of which shall be as follows, to wit: Beginning at a point on the west line of Holly street at its intersection with the north line produced west of 17th street; thence west along this prolongation to the north line of 17th street to the westerly line of Franklin street produced north; thence south along this prolongation of the westerly line of Franklin street to an intersection with the southerly line produced west of lot A, block 1, of resurvey of Whipple's Second Addition; thence east along the south lines of lots A and B of said block 1 to the west line of Holly street; thence north along the west line of Holly street to the place of beginning. And all private property within said limits is hereby taken and condemned for public use as a part of 17th street and just compensation therefor shall be assessed, collected and paid according to law.

"Sec. 2. The common council determines and prescribed the limits within which private property shall be benefited by the improvement herein proposed and be assessed and charged to pay compensation therefor as follows, to wit: Beginning at a point on the west line of Belleview avenue 132 feet south to the south line of 17th street; thence west and parallel to the south line of 17th street to the east line of Holly street; thence to the southeast corner of lot five (5), block 1, Resurvey of Whipple's Second Addition; thence to the southwest corner of said lot 5; thence to the southeast corner of lot 143 of said block 1; thence west along the south line of said lot 143 and this line produced west to a point 150 feet west of the west line of Franklin street; thence in a northerly direction parallel to the westerly line of Franklin street to the north line produced west of lot A, block 1, of the Resurvey of Whipple's Second Addition; thence north and parallel to the west line of Holly street 198 feet; thence east and parallel to the north line of 17th street produced west to the east line of Holly street; thence south

to the north line of 17th street; thence east to the east line of West Prospect Place; thence north 168 feet; thence east to the west line of Belleview avenue; thence south along the west line of Belleview avenue to the place of beginning.

"Sec. 3. All ordinances or parts of ordinances in conflict herewith are insomuch as they conflict with this ordinance hereby repealed.”

The city engineer of Kansas City, Mo., after the adoption of this ordinance, made out a map or plat, and delivered the same to the mayor of said city, in which was embraced a showing of the benefit district. The city clerk of Kansas City, Mo., issued a notice under his hand and seal to property owners, notifying them that their property would be taken for the purposes specified in the ordinance of Kansas City, No. 16,129. The city clerk also issued the following notice to the appellant in this cause: "You will take notice that your property will be assessed to compensate for the taking of private property for the purposes specified in the ordinance of Kansas City No. 16,129, entitled 'An ordinance to open and establish Seventeenth street from Holly street to westerly line of Franklin street,' approved January 5, 1901, and that a jury will be empaneled to make such assessment on the 20th day of May, A. D. 1901, at ten o'clock in the forenoon at the Lower House council chamber on the fourth floor of the city hall building on the southeast corner of Fourth and Main streets in Kansas City, Jackson County, Missouri." On May 20, 1901, on account of the failure to get service on some of the property owners, the proceedings were continued by the mayor to July 1, 1901. On July 1, 1901, the following proceedings appear of record:

"In the matter of the proceedings to ascertain and assess just compensation to be paid for private property taken for public use, for the purpose specified in an ordinance of Kansas City, No. 16,129, entitled 'An Ordinance to open and establish 17th street from the west line of Holly street to the westerly line of Franklin street,' Approved Jan'y 5th, 1901.

"Hon. Jas. A. Reed, Mayor of Kansas City, presiding:

"Now on this day come John A. Hanley, R. G. Perkins, John Bayha, Wm. Reeves, Chas. A. Bickell, F. N. Phelps, the jury summoned herein, and it appearing to the court that they are all qualified and disinterested freeholders of Kansas City, Missouri, they are duly empaneled a jury herein, sworn to faithfully and honestly discharge their duties according to law and the ordinances under which these proceedings are carried on.

"The jury was instructed by the court to go with the city engineer to-day to view the property to be taken and assessed, and this matter and all proceedings herein are continued to Monday, July 8th, 1901, at ten of the clock in the forenoon at the Lower House Council Chamber on the fourth floor of the