The legislature of the state, in the act providing for the incorporation of cities and towns, has sought to empower such cities and towns with the right to acquire, hold and control real and personal property located outside of its corporate limits as a source for a water supply, and has; by the same act, sought to empower them to protect such supply from pollution by ordinance. The ordinance of the city here in question was enacted pursuant to this legislative grant of power, and is strictly within the power granted. It seems to me, therefore, that the question before the court is, does the act of the legislature violate any of the constitutional inhibitions.
The majority find the inhibition in the clause of the constitution which they quote. In my opinion, this is a misapprehension of the purpose and meaning of the clause. It will be noted that the clause quoted is not in form a prohibition upon power, but is in form a grant of power. It will be noted further, that the grant is to the municipalities which it enumerates, and does not even refer to the legislature or its powers. It will be remembered also, that a constitution, in so far as it applies to the legislative branch of the government, is a restriction upon and not a grant of powers; or, stated in another way, the legislative powers of the state are *Page 592 supreme, restricted only by the prohibitions in the constitution under which it acts.
These considerations, it seems to me, point directly to the conclusion that the clause in question had another purpose than that which the majority impute to it. Its purpose was, as I conceive, to grant to the municipalities enumerated the power to enact ordinances for their local self-government, without the necessity of first receiving legislative sanction so to do. In other words, the powers granted are the powers they inherit in virtue of their creation as municipalities, and no legislation is necessary, other than the legislation by which they are created, to authorize them to exercise the granted powers, subject, of course, to the imposed limitation that the ordinance enacted under it shall not conflict with the general laws. I cannot conceive, therefore, that it was intended by this clause to place a limitation upon legislative powers, further than to limit its legislation on the particular subject to general laws. If this be the correct interpretation of this clause of the constitution, it follows as of course that the legislature may authorize cities to acquire property outside of its limits as a source of water supply, and may authorize them to protect such property by ordinance.
But, in my opinion, the majority have placed an erroneous construction upon the clause in question, even conceding that it applies to the legislative branch of the state. As I have pointed out, it is not in form a restriction; and, if it is a restriction at all, it is only so by implication. It is in form a grant of powers, and to make it a limitation there must be read into it the implication that no other powers were intended than those specially granted. I am, of course, aware of the ancient maxim, anglicized as "The expression of one thing is the exclusion of another," but I cannot concede *Page 593 that the maxim is of universal application. My research has convinced me that it is rarely, if ever, applied as a rule of constitutional construction. In constitutional provisions, the prohibition must usually be direct. Implied prohibitions are given effect only when the language employed admits of no other interpretation. I think, therefore, that the majority are wrong in holding that the limitation imposed by the constitution upon the powers of cities, implies a like prohibition upon the legislature.
Of the cases cited in the majority opinion from the supreme court of California, the first (Odd Fellows' Cemetery Ass'n v.City County of San Francisco, 140 Cal. 226, 73 P. 987) was a suit to enjoin the defendant city from enforcing an ordinance forbidding the burial of the dead in any cemetery situated within the corporate limits of the city. The second (Ex parte Murphy,8 Cal. App. 440, 97 P. 199) was a proceeding in habeas corpus, by which the relator sought to be relieved from imprisonment imposed upon him for violating a city ordinance prohibiting keeping open or maintaining a billiard or pool hall in certain places within the corporate limits of the city of South Pasadena. The third (Boyd v. City of Sierra Madre, 41 Cal. App. 520,183 P. 230) was a suit to enjoin the city named in the title from enforcing an ordinance forbidding the maintenance of a livery stable within the residence district of the city. While each of the cases cite the constitutional provision of the state of which ours is a duplicate, they cite it as furnishing authority to the respective cities to enact the ordinance attacked. It may be that I do not fully comprehend the purport of these cases, but I find nothing in them which supports the principle to which they are cited in the majority opinion.
Nor does the case cited from this court bear more *Page 594 directly upon the question. It, in common with a number of others which could have been cited, but announces the principle that a city, in virtue of the constitutional provision cited, may, without the special sanction of the legislature, enact local police regulations effective within their corporate limits. It does not, as I read it, prohibit the legislature from empowering cities to pass ordinances for the protection of their water supplies effective beyond such limits. As I read both our own and the California cases, they support rather than oppose the principle for which I contend, namely, that the purpose of the constitutional provision was to give to cities powers which they could exercise independent of legislative sanction, not to impose restrictions upon the legislature itself.
An argument is made in the briefs tending to show that the ordinance is invalid for reasons apart from the constitutional question involved, and were the conclusion of the court rested on these grounds I would concur in it. But the reason on which it is rested has far reaching consequences. Each of the principal cities of the state has its water supply on property it has acquired located beyond its municipal limits, and each of them has sought to protect the supply from pollution by ordinance. The opinion holds these ordinances, and the legislative enactment upon which they are founded, invalid. I am afraid that the effect of the holding, notwithstanding the statement in the opinion to the contrary, is to leave the supply without protection; a consequence that nothing but the gravest reasons warrant.