hereafter be organized under and by virtue of the provisions of section 16, article 9 of the Constitution of this state, to establish and maintain for such city a system of parks and boulevards," etc. But the Supreme Court in banc held that act unconstitutional, and declared that, so far as concerns the local affairs of Kansas City, its present charter cannot be amended by an act of the legislature. Kansas City ex rel. v. Scarritt (1895) 127 Mo. 642 (29 S. W. Rep. 845 and 30 S. W. Rep. 111) followed in Kansas City v. Ward (1896) 134 Mo. 172 (35 S. W. Rep. 600) and Kansas City v. Marsh Oil Co. (1897) 140 Mo. 458 (41 S. W. Rep. 943).

The city was practically put in the position of a county for the purposes of executing the functions of government in that locality. As those functions were to be performed by city officers, the scheme and charter undertook, in the first instance, to prescribe how, and by whom, those duties should be discharged. But matters of purely municipal and local concern the Constitution intended to commit to local self-government, which the peculiar provisions in regard to St. Louis were designed to authorize.

It may not always be easy to determine what subjects are local and municipal and what are not. That difficulty is not a new one. But it is easy to determine in this case that the boulevard act deals with a subject of strictly municipal concern for the principle of the decisions of the Supreme Court in State ex rel. Kansas City v. Field (1889) 99 Mo. 352 (12 S. W. Rep. 802) is decisive of that proposition.

The people of the state expressed in the constitution, in most solemn form, a purpose to give the people of St. Louis power to "frame a charter for the government of the city" (sec. 20). It was never intended that the charter should be subject to the same sort of change by special legislation as before the constitution of 1875. Yet that would be the case if the simple device of legislation applied to population (as in the act before us) met the approval of the courts.

In respect of those topics which involve the relations of the city to the state there can be no doubt that the legislative power of the state may properly be exercised over the city of St. Louis as has been done in many instances disclosed by decisions in the Missouri Reports. See State ex rel. v. Tolle (1880) 71 Mo. 645, approving a law in regard to legal advertisements; Ewing v. Hob

litzelle (1884) 85 Mo. 64, sustaining the act regulating registration, elections and the office of recorder of voters in St. Louis; State ex rel. v. Miller (1890) 100 Mo. 439 (13 S. W. Rep. 677) construing a statute for the government of the public schools; State v. Bennett (1890) 102 Mo. 356 (14 S. W. Rep. 865) interpreting laws to govern the State board of police in St. Louis; State ex rel. v. Bell (1893) 119 Mo. 70 (24 S. W. Rep. 765) sanctioning the law in regard to the excise commissioner in St. Louis; State ex rel. v. Higgins (1894) 125 Mo. 364 (28 S. W. Rep. 638) holding valid the Justice of the Peace Act for St. Louis; Kenefick v. St. Louis (1895) 127 Mo. 1 (29 S. W. Rep. 838) sustaining an act for auditing the sheriff's accounts in St. Louis.

The General Assembly has furthermore undoubted power to legislate for St. Louis as for all other cities, in the full exercise of the police power of the state, as well as to enforce direct mandates of the fundamental law by appropriate statutes, and to pass all proper laws that are general throughout the state. State ex rel. Ziegenhein v. Railroad (1893) 117 Mo. 1 (22 S. W. Rep. 910) affords an illustration of legislation of the latter sort. In that case a law intended to prescribe rules for assessing railroad property throughout the state was held applicable to St. Louis and operative to repeal charter provisions on that subject.

The charter of St. Louis is subject to the legislative power of the State to the same degree that other cities and counties are.

To permit such an amendment of the charter of St. Louis, or any other constitutional charter, would let loose anew many of the evils of special legislation that the constitution so carefully endeavored to suppress. How earnest was that endeavor is evident from the following passage in the address (already referred to) with which the constitution was presented to the people.

"The evils of local and special legislation have become enormous. We need but look to our session acts to be satisfied that this species of legislation occupies the larger portion of the time of our General Assemblies to the neglect and prejudice of public interests. The expense to the state in passing and publishing such laws and the combinations by which private interests have been advanced and dangerous monopolies created are well known. Under the proposed Constitution the General Assembly is prohibited from passing such laws. In all cases where a general law can be made applicable a special law cannot be enacted."

We believe in firmly maintaining the barriers which the present organic law has erected against the abuse of legislative power by special and local legislation, and to permit no evasion of the just and wholesome provisions which were intended to abolish that abuse.

We believe in guarding all city charters, accepted under the pledges of the Constitution of 1875, from unlawful invasion by special legislation as to local affairs, and believe in enforcing, as vigorously as any other part of the constitution, the provisions of section 7 or article IX, limiting the number of classes of cities and towns for which the general assembly may pass laws conferring municipal powers.

Doubtless remarks may be found in some of the decisions mentioned in this opinion (and in some other cases cited in the briefs of learned counsel) which are not in entire harmony with all that is above written. But we believe that the actual judgments pronounced in the most, if not in all, of the cases referred to are supported by the principles we have endeavored to elucidate.

4. Finally, it is suggested that a great number of statutes would be invalidated if the views we have indicated are finally accepted as the law. To this it may be answered that many of our statutes that have been cited as coming under the ban of our ruling are plainly sustainable on various grounds indicated in this opinion. But even if this were not so, there would yet be a more satisfactory answer to give, in the words of another: "No length of usage can enlarge legislative power, and a wise constitutional provision should not be broken down by frequent violations." People ex rel. v. Allen (1870) 42 N. Y. 384.

We hold that the boulevard act is not a valid amendment of the charter of St. Louis.

SHERWOOD, J., (dissenting).

III. POWERS OF LOCAL CORPORATIONS.

1st. Construction of Powers of Local Corporations.

JACKSONVILLE ELECTRIC LIGHT COMPANY, APPELLANT, V. CITY OF JACKSONVILLE, ET AL.,

MABRY, C. J.:

APPELLEES.

Supreme Court of Florida. 1895.
36 Fla. 229.

The question presented on the merits is whether the city of Jacksonville has the power to erect and maintain an electric plant of sufficient power and capacity to light the streets and public places of the city, and at the same time supply from said plant the inhabitants thereof with electric lights for their private residences and business houses.

We have been unable to find any other authorities bearing directly on the question involved in the merits of this case than those cited in the briefs of counsel, and the decisions cited speak of the paucity of adjudications on the point. The general rule stated by Judge Dillon (sec. 89, vol. 1 Municipal Corporations) is recognized as a correct summary of the decisions on the question. The author states the rule as follows: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporationnot simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created. is its organic act. Neither the corporation nor its officers can do any act or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void. Much less can any power be exercised, or any act done, which is forbidden by charter or statute." The same author says (sec. 91) that "the rule of strict construction of corporate powers is not so directly ap

plicable to the ordinary clauses in the charter or incorporating acts of municipalities as it is to the charters of private corporations; but it is equally applicable to grants of powers to municipalities and public bodies which are out of the usual range, or which may result in public burdens, or which, in their exercise, touch the right to liberty or property, or as it may be compendiously expressed, any common law right of the citizen or inhabitant." While a strict construction should be applied to the grant of power, yet if a power is necessarily or fairly implied in or incident to those clearly given, it is not to be impaired by a strict construction. Kyle v. Halin, 8 Ind. 84. In speaking of the powers of municipal corporations, it is said in City of Bridgeport v. Housatonic R. R. Co., 15 Conn. 475: "They may exercise all the powers within the fair intent and purpose of their creation which are reasonably proper to give effect to powers expressly granted. In doing this they must (unless restricted in this respect) have a choice of means adapted to ends, and are not to be confined to any one mode of operation." In construing a charter giving to a city the right to pass ordinances for the prevention and suppression of fires, and to appoint and remove fire wardens, and to prescribe the powers and duties of such fire wardens and fire engineers and firemen, and to raise money to support the fire department, it was held that although no express grant of power was conferred to purchase engines and apparatus, yet such power was necessarily or fairly implied as incident to the power expressly given. Green v. City of Cape May, 41 N. J. L. 45. The charter of the city of Greenville, construed in the case of Mouldin v. City Council of Greenville, 33 S. C. 1, 11 S. E. Rep. 434, provided that the council might purchase, hold, possess and enjoy any estate, real, personal or mixed, and sell, lease, alien and convey the same, provided that it did not exceed at any time $100,000, and also to make and establish all such rules, by-laws and ordinances respecting roads, streets, markets and police department of the city, and the government of the city, as should appear necessary and requisite for the security, welfare and convenience of the city for preserving health, life and property, and securing peace and good government of the same. The further power was given to levy taxes sufficient to discharge and defray all expenses of carrying into effect the ordinances, rules and regulations established as provided, with the limitation that the tax should not exceed seventy-five cents upon every one hundred dollars of real and personal property assessed. The city was also authorized to borrow money for the public use of the corpora