(dissenting) — I desire to register my dissent from the foregoing opinion, not merely on account of the result *636reached in this particular case, but because of the far-re'aching evil effect which I am convinced will follow our approval of the doctrines which that opinion affirms. At the outset, I desire frankly to admit that if this court desires to re-affirm and further extend the doctrine of Chamberlain v. Telephone • Co. and State v. Nebraska Telephone Co., cited by the majority, there is a logical fitness in the reasoning employed by them, unless we are to accord to the effect of the power reserved to the state by our Constitution and statutes greater force and efficiency than my colleagues are disposed to allow. Personally, I believe the view expressed in those cases, to the effect that Section 1324 of the Code of 1873 and its amendments gave every telegraph and telephone company an unlimited privilege to enter upon and occupy every public road and public highway in the open country and every street and alley in every city and town within our state borders without the consent of the local authorities and without compensation, is radically unsound, and I would waste no time in receding therefrom. The language of the statute does not, in my judgment, necessitate such construction, and if the terms of the grant or privilege be in any respect doubtful or open to construction, the doubt should be resolved in favor of the public, as against ■ the person or persons who desire to exploit the opportunity for private profit. But for the purposes of this discussion, I shall assume that those decisions are to stand, and are as binding upon me as'upon the majority, until they are overruled, and that they are to be given due effect upon all questions settled therein. What do they settle ? Simply this: That, under the terms of the statute cited, the telephone company has the right to make use of the streets of the city without asking the city’s consent, and that, having done so, the city, as the law stood •prior to 1897, had no power or authority to exclude it therefrom. What the court there says relative to the issues decided is not to be ignored or disregarded by us; but, in so far as its discussion goes beyond those issues, it is dictum which constitutes no authoritative precedent. Those cases do not construe *637or determine the effect of the constitutional restriction (Constitution of Iowa, Article 8, Section 12), or of the statute (Code of 1873, Section 1090, identical with Code of 1897, Section 1619), or the later statutes (Code of 1897, Sections 775 and 776), and these provisions are now subject to our examination and construction, unaffected and unembarrassed by what we said or failed to say in the Chamberlain case or the Nebraska Telephone case.
Let it then be assumed, as said by the majority, that the statute first mentioned, Section 1324 of the Code of 1873, and its amendments, having been accepted by the telephone company by entering upon the city streets and erecting its poles and wires thereon, constituted a contract between the' state and the company which the courts are bound to recognize and enforce: what were the terms of the contract, and how long, was it to remain effective ?
It is a proposition as sound in law as it is obvious to good sense that the law existing at the time the contract was made became, by implication, a part of the agreement; or, stated otherwise, it is presumed that the parties entered into their agreement with reference to the law bearing upon the subject concerning which that agreement was made. Now the principle that a charter to a corporation is a contract protected to the same extent as are agreements between individuals, by the constitutional prohibition of laws impairing the obligation of contracts, thereby making the creature greater than its creator; endowing it with everlasting life, and leaving the public helpless to escape the blighting effects of improvident perpetual grants of corporate privileges, had hardly been settled by the Supreme Court of the United States, in the famous Dartmouth College case, before its inevitably evil effects began to make themselves so manifest that the several states began to take action to hedge it about with statutory and constitutional restrictions. These generally took the form of a reservation of power in the state to limit the existence of corporations thereafter organized, to regulate their business in the public *638interest and to withdraw special privileges conferred upon them. That purpose found expression in our own Constitution, where it is provided that:
“The general assembly shall have power to amend or repeal all laws for the organization or creation of corporations, or granting of special or exclusive privileges or immunities . . .; and no exclusive privileges, except as in this article provided, shall ever be granted.”
Later, another step in the same direction was taken by the legislature, when it enacted Section 1090 of the Code of 1873 (Section 1619 of the Code of 1897), further providing, as part of the general law for the organization of corporations for pecuniary profit, that the articles of incorporation, bylaws, rules and regulations of any corporation thereafter organized should “at all times be subject to legislative control, and may be at any time altered, abridged or set aside by law, and every franchise obtained, used or enjoyed by such corporation may be regulated, withheld, or be subject to conditions imposed upon the enjoyment thereof, whenever the general assembly shall deem necessary for the public good. ’ ’
These provisions of the Constitution and the statute were in force when the telephone company in this case came into existence and when it acquired all the contract rights which it has in the premises, and the rights so acquired are unquestionably subject to all the expressed reservations in favor of the state. In other words, the contract was made with the condition and understanding that the exercise of the powers so acquired was subject to legislative control, and that every franchise obtained, used or enjoyed under or by virtue of that contract might lawfully be regulated or withheld, or be.made subject to further conditions imposed upon its enjoyment, according as the legislature in its wisdom should believe to be for the public good. Still further, such contract must have been made with the understanding that if, by its terms, the corporation acquired any special privileges or immunities, they were to be held or retained only so long as the legislature saw *639fit to permit it, and that the grant so made was always subject to amendment or repeal, as provided by the cited constitutional provision. If, then, when the corporation has had 30 years of presumably profitable free use of the public streets upon such conditions, it happens that the legislature, in view, possibly, of the increased population, increased congestion of the streets, and improved methods of serving the public convenience, concludes in good faith that it will be for the public good to withdraw the privileges granted to the corporation, or to impose certain conditions upon their further enjoyment, who is wronged? Is not this precisely what the parties agreed upon? If the “innocent investors and third persons” who, in every struggle of this character, are waiting in the anteroom ready to be paraded as a shield of corporate privilege against the demands of public right, raise the familiar cry, it is easy to demonstrate its lack of substantial foundation. Just as the original incorporators entered upon the original enterprise with knowledge of the reserved power in the state to protect itself and the general public by withdrawing the privilege or by imposing new conditions thereon, so did they who invested in its securities, and they suffer neither legal nor moral wrong when the state sees fit to exercise its rights.
The contract which the law implies in the grant of a statutory privilege ought to have some of the elements of mutual obligation which enter into contracts in general; but assuredly, the obligation to which we hold the state in this case is supported by only the flimsiest consideration on the other side. When the statute making the grant was passed, no person or corporation was under any duty to take advantage of it. Having undertaken to establish a telephone system in the city or state, defendant was under no promise to continue the enterprise, but could retire therefrom at any time, on any pretext, without incurring any liability for damages. It pays no rent for the use of the streets, no license or occupation tax. It is free to quit the field and wash its hands of any obligations to the state or city, as if the contract had never *640been made. The sole concession or consideration (if it maybe so called) accorded to the state is the right to protect the interests of the public by the exercise of the reserve power to which we have adverted; and the value of that reserved power ought not to be minimized or its purpose frustrated by resolving every doubt against it.
Coming, then, to our present Code Sections 775 and 776, it is to be observed that, while the origin of the first section may be traced in prior legislation, it was, in its present form, coupled with the succeeding section, and they were together enacted as parts of the same chapter of the Code, wherein the legislature sought to embody all the statute law relating to the use and occupation of the city streets and the rules for their supervision and control. Then, as now, the streets of many of our cities and towns were occupied by telephone lines, the number of corporations being organized for such enterprises was rapidly multiplying, and the question of their proper regulation and control was an important one. This was the situation the statute was enacted to meet, and to appreciate its effect, the two sections must be read together. Thus viewing it, the majority reach the conclusion that the legislature meant, in Section 775, to grant power to cities and towns to regulate the matter of poles and wires of all telephone companies, including those organized before, as well as those organized after, the date of the act; but that, in Section 776, the necessity of obtaining a franchise for the use of the streets was laid only upon those companies which might thereafter enter the business. "While this exposition of Section 775 is somewhat narrower than I would make it, I would not take the time of the court to dissent therefrom, if this were all that the opinion holds. But to say that the legislature had in mind all telephone corporations when it enacted Section 775, but had reference to a part only, when it enacted the next section, is a conclusion to which I cannot agree. Though the origin of the first section is, as already said, traceable through some-earlier legislation, and the next section was then for the first *641time brought into the statute, they were here coupled together and enacted as a part of the same chapter, and I fail to understand by what rule of construction or interpretation the same general language is to be given the broader meaning in one place and the narrower effect in the other. The opinion as written divides public utility corporations of this kind into two classes: those which had been organized and had secured a foothold in the state, and those which might thereafter seek the right to use the streets for a like purpose. Had the classification been intended, it was easy to use plain words of unmistakeable meaning for such purpose, and not leave this important distinction to be discovered and developed by mere construction. To me, it is inconceivable that an intelligent legislature, engaged in the work of recasting and simplifying the statute law of the state and putting it in form to be understood and enforced, should fail to make itself clear on this point, if any such distinction had been intended. Again, if the statute be capable of a reasonable construction which will make it valid, it will be assumed that such was the legislative intent, as against another construction, which would render it invalid. To adopt the idea expressed by the majority is to say that the legislature intended to separate the telephone corporations of the state, all organized under the same statute and carrying on precisely the same kind of business, into two classes, to one of which are given special privileges denied to the other, and upon the other, are imposed disabilities and burdens of which the first is relieved. This, in my judgment, is forbidden by our own state Constitution, Article .1, Section 6, as well as by the last clause of Section 12 of Article 8 of the same instrument, which, in clear terms, inhibits the granting of exclusive privileges to any citizen or class of citizens. Up to that time, the legislature had not attempted in terms to subject telephone corporations to any control by cities or towns, an omission which served to hamper these municipalities in the proper cafe and maintenance of their streets and *642to prevent the proper regulation of such companies with reference to the public convenience. The necessity and propriety of such regulation was just as patent, and the relief thus afforded to cities and towns was just as necessary, with respect to companies already organized and doing business, as to those which might thereafter be brought into being. The whole subject was before the legislature, and, under the reserved power to which we have referred,'it was clothed with all necessary authority to treat all telephone companies alike, and subject all to like conditions. That it could impose conditions precedent to the authority of corporations thereafter organized to do business will not -be doubted, and that it could also impose the same conditions precedent to the continued enjoyment of a franchise already in existence is expressly provided in Code of 1873, Section 1090, which, as we have seen, became a part of the contract which is here relied upon by the defendant. Having, then, the necessary authority to place all corporations doing or desiring to do a telephone business upon the same level, and to condition their right to establish or continue such business upon the same terms, the legislature enacted the Code of 1897, Sections 775 and 776, and used terms of general character which may fairly be construed as applying to all such corporations; and in my judgment, the court ought to give it that effect. Such effect, the majority first seeks to avoid by pointing to the words, “No franchise shall be granted, renewed or extended by any city or town, ” except in the manner named.It is argued that defendant already had a franchise, and therefore needed no grant or renewal to give it a right to use the streets; and that, the franchise being perpetual, the defendant is not to be placed in the attitude of asking an extension thereof. In the first place, let us remember that a franchise which is subject to repeal or amendment is not perpetual, in any proper sense of the word. Its term of existence is, at most, indefinite, and is subject to termination at any time, at the will of the state, constitutionally expressed. It seems apparent that “extended” is here used in the sense of “con-*643tinned, ’ ’ and that the phrase ‘ ‘ granted, renewed or extended, ’ ’ in the connection where it is found, is, in effect, a legislative declaration that thenceforth the use of the streets of cities and towns by these public service corporations should be acquired or continued only by consent of the constituted authorities and vote of the people. But the majority argue-:-(1) That to hold the statute applicable to defendant is to work, a forfeiture, and that forfeitures are not favored by the law; (2) that to make such application gives to the statute retrospective effect; (3) that it-would be an unconstitutional impairment of the obligation of the contract implied in the original grant and its acceptance, and an unauthorized interference with vested rights. With the utmost respect to my colleagues who differ with me, I insist with all confidence that, of the several legal rules and principles thus invoked in the opinion, not one is applicable to this case.
1. As to forfeiture. To construe the law as I have indicated and give it effect against the defendant is neither to declare nor to enforce a forfeiture. The defendant is made to forfeit nothing. A forfeiture is a taking away or divesting of property or property rights, because of some default or offense. Union Glass Co. v. First Nat. Bank, 10 Pa. Co. Ct. R. 565,572. It relates to loss of property or right because of something its owner has done or omitted to do. Cassell v. Crothers, 193 Pa. 359. A forfeiture is a penalty. Gosselink v. Campbell, 4 Iowa 296, 300. It is a deprivation or destruction of a right in consequence of a non-performance- of some obligation or condition. Webster v. Dwelling House Ins. Co., 53 O. St. 558.
The last definition, stated by the Ohio court, is probably as apt and complete as can be found anywhere, and accords perfectly with the ordinary employment of the word by lawyers and courts. A moment’s reflection will make it plain that there is nothing of that nature in this case. It is not claimed by plaintiff that defendant has, by its failure, default or misconduct, forfeited or lost any right it had in the prem*644ises. No forfeiture has been declared, and none is now urged. The position taken is — and it is impregnable — that the power to impose a new or additional condition upon the use of the streets was reserved in the original contract, and that such power and such only has been exercised, not to punish or take advantage of the defendant for any default, but to impose other conditions upon the enjoyment of the franchise which are believed to be for the public benefit and in strict accordance with the contract. The reservation of such power by the statute and the Constitution, though not expressed or repeated in the grant itself, was, nevertheless, as much a part of the contract as if it had been so expressed. Tomlinson v. Jessup, 82 U. S. 454. After holding that the reserved power justified the state in afterwards withdrawing a valuable privilege attached to the franchise, the court, in the cited case, notices the objection made concerning its ill effects upon the interests of persons inyesting in the corporate stock, and dismisses the objection by saying that the original incorporators and subsequent stockholders took their interests with knowledge of the existence of this power and the possibility of its being exercised at any time, in the discretion of the legislature. Further, as to the reserved power, the court says that these provisions ‘ ‘ constituted the condition upon which every charter of a corporation subsequently granted was held, and upon which every amendment or modification was made. They were as much a part of the charter as if incorporated into them.” And this is true whether the reservation be made in the Constitution or in an existing general law enacted by the legislature. Miller v. State, 82 U. S. 478; Macon & B. R. Co. v. Gibson, 85 Ga. 1, 15; Western N. C. R. Co. v. Rollins, 82 N. C. 523, 529. In none of the very numerous cases treating of the exercise of the power reserved by the state to repeal the grant or to alter its terms will there be found any suggestion that its application serves to work a forfeiture.
2. The point that to hold this statute applicable to defendant is to give it retroactive effect rests upon a misap*645prehension as to when a statute is retroactive and subject to the rules cited by the majority. Turning to the books, we find that the Supreme Court of the United States has defined the term as follows:
4 4 A retrospective law is one which changes or injuriously affects a present right by going behind it and giving efficacy to anterior circumstances to defeat it, which they had .not when the right accrued.” Poole v. Fleeger, 36 U. S. 185.
It has also been defined as one that relates back to and gives to a previous transaction some different legal effect from that which it had when it happened. State v. Whittlesey, 17 Wash. 447. Again, it is said to be one intended to affect transactions which occurred or rights which accrued before it became operative as such, and ascribes to them effects not inherent in their language in view of the law in force at the time of their occurrence. Chicago, B. & Q. R. Co. v. State, 47 Neb. 549.
Under no definition here given or any other I have been able to discover can Code Sections 775 or 776 be said to have retroactive effect, if given the interpretation asked by the plaintiff. This statute applies only to conditions then existing and such as might thereafter arise. The effectiveness of the act does not reach back beyond the day when it was duly passed, approved, and published. The legislature could not, of course, impose liability upon the defendant for failure in the past to discharge a duty which had not been previously imposed upon it, nor is anything of that kind implied in the statute as I am reading it. Nor — to get still closer to the point of this issue — could the legislature impose upon the defendant’s enjoyment of its franchise any new burden not within the scope of its reserved power. It does, indeed, impose a new condition, but that is precisely what its contract in express words allows it to do. To keep that matter clear, let me again repeat that clause of the reservation (Code Section 1619):
“And every franchise obtained, used or enjoyed by such corporation may be regulated, withheld, or be subject to eon*646ditions imposed upon the enjoyment thereof, whenever the general assembly shall deem necessary for the public good. ’ ’
To require the defendant, as an additional condition of the enjoyment of its franchise, to conform to the law imposed upon other corporations of its kind is, therefore, strictly within the terms of the agreement. The condition has no retroactive effect, but has reference solely to the future use of such franchise.
Perhaps it is as well that we here take notice of a proposition which seems to be glanced at in the majority opinion and distinctly announced in a few decisions by other courts— quite notably in Iowa Telephone Co. v. Keokuk, 226 Fed. 82— to the effect that powers reserved to the state by the constitutional and statutory reservations to which I have referred have reference only to the franchise or right to be a corporation, and not to the franchises or contract rights which such corporation may obtain or acquire in carrying out ,the purposes of its organization. In the case referred to, after noting the distinction between a franchise to exist as a corporation and a franchise subsequently acquired by contract with or grant from a city or town, the court proceeds to say:
“The provisions of the Code and the Constitution, as aforesaid, clearly have reference to the powers granted to a corporation, and have no relation to the property rights of a corporation acquired under such powers. The corporation being a creature of statute, the legislature expressly reserved the right to change the powers granted and to take away such powers at any time. This reservation authorized the state to even dissolve a corporation and destroy all its functions; but even this would in no manner affect property rights acquired by it before its dissolution or destruction.”
Going still further in this direction, it is declared that, while the state may thus dissolve the corporation itself, and the franchise to exist in such capacity may be lawfully destroyed, the acquired franchise obtained by the corporation in its lifetime “continues unimpaired.” In other words, no *647matter what changes the passing years may bring in conditions of public service or public convenience, no matter that a franchise granted by a city to a corporation under the easygoing policy of pioneer days proves in later practice to be a clog upon municipal progress and oppressively burdensome upon the people intended to be served, the state has rendered itself impotent, to do more than to cancel the corporate charter, leaving the franchise itself, the one thing from which relief is needed, “unimpaired,” to hang as an unbreakable iron ring welded about the public neck until the “heavens shall pass away and the elements shall melt with fervent heat. ” Indeed, when that great cataclysm shall occur, I am not at all certain that legal ingenuity will not rise to the occasion and announce some solemn formula to render that ring infusible in the final conflagration. Justice to my colleagues at this point requires me to admit that they endeavor to limit their discussion to the proposition that the legislature has not in fact attempted to exercise its reserved power and to withhold any opinion upon the extent of that power until a case shall arise which, in their judgment, properly presents it. But believing, as I do, that Code Section 776 does embody a purpose to give effect to that power, I cannot refrain from going into the subject more generally than does the opinion. Moreover, while cheerfully assuming that such is not the intention of the majority, I am convinced that the logical and inevitable trend of the opinion is so strongly towards the proposition affirmed by the Federal court in the Keokuk case as to foreclose its free consideration when a case comes before us which confessedly does raise the point. In this belief, and in the conviction that the adoption of the theory of that ease into the law of this state would be little less than calamitous, I find justification for this dissent.
Before leaving the subject, it is proper to recall the rule that the courts of the state are vested with final authority upon the construction and interpretation of its own statutes, and to note that this court has already put a construction upon our statutory reservation of power with respect to corporations, *648wholly at variance with that set forth in the Keokuk case. Sioux City Street R. Co. v. Sioux City, 78 Iowa 742. There, the railway company obtained the grant of a franchise from the city. By the terms of the grant, whenever the city undertook to pave any street occupied by the railway company, it was required to pave the space between its rails, and no more. Later, and after the franchise had been accepted, a statute was enacted by the legislature authorizing cities to require street railway companies to pave, not only the space between the rails, but an additional space of one foot on either side. This statute, let it be noticed, was general in its terms, and, as in Section 776 of the Code, nothing was said differentiating between corporations obtaining grants before its enactment and those thereafter obtaining them. Thereafter, the city, undertaking to pave certain streets, assessed against the company the expense of paving the space between the rails and one foot outside thereof, as provided by the statute, and the company took the matter into the courts, denying its liability and advancing the same reasons therefor which are relied upon by the defendant in this case. The trial court ruling in favor of the city, an appeal was taken to this court, where it was argued that, the grant of the franchise having been accepted, it had the force of a contract, the obligation of which neither the state nor the city could impair by imposing upon the company new or additional burdens. Overruling the point, the court referred to Code Section-1619, which we have already quoted, and said:
‘1 The state reserved the power not only to repeal or amend the articles of incorporation of such corporations as should be organized after its enactment, but to impose such conditions upon the enjoyment of the franchises obtained thereunder as the general assembly might deem necessary for the public good. Plaintiff’s franchise consists of the privileges, powers and rights conferred upon it by the general statutes and its articles of incorporation, but it assumed them subject to the right •and power reserved to the state by the statute. The reserva*649■tion was a condition of the grant. Now the object of plaintiff’s organization was to construct, maintain and operate street railways and other railways in the city and adjacent thereto. The power and privilege of doing that particular thing are its franchise. The act of the twentieth general assembly, as applicable to it, imposes it as a condition upon which it may enjoy that franchise that, when the city determines that the street shall be paved, it shall bear the cost of paving between its rails and one foot in width outside of them. That the general assembly had the power under the reservation to impose the condition, we think there can be no doubt.”
The distinguished writer of that opinion, Reed, J., is still living; and if the precedent so established shall have its proper effect to save the state and its municipalities from the thralldom with which the other theory threatens them, he may congratulate himself upon his title to the gratitude of the people whose service he has honored. Appeal from that decision was taken to the Supreme Court of the United States and there affirmed (138 U. S. 98). The point was there distinctly made that the ordinance or contract between the city and the company was neither part of the articles of incorporation nor of its by-laws, rules or regulations, and that it was not a franchise, within the meaning of the statutory reservation of power. This contention, which is the identical proposition affirmed in the Keokuk case, was distinctly disapproved. The court says:
“The company took its franchise subject to such legislation as the state might enact. This is plain from the provision of Section 1090 of the Code (Section 1619 of the present Code). . . . The legislature had the power not only to repeal and amend the articles of incorporation of the company, but to impose any conditions upon the enjoyment of its franchise which the general assembly might deem necessary for the public good. The reservation of this power was a condition of the grant.”
Again, the court says:
. “The right to operate the raihvay in the streets is a from*650chise obtained through the power given to the city by the state, but the state reserved the power to regulate such franchise and impose conditions upon it.”
Finally the court says — and to this I call special attention, because of its direct bearing on the further suggestion in the majority opinion that to give the statute forcé as I construe it is to find ourselves at variance with the constitutional provision against impairing the obligation of contracts:
“No question can a/rise as to the impairment of the obligation of a contract, when the company accepted all of its corporate powers subject to the reserved power of the state to modify its charter and to impose additional burdens upon the enjoyment of its franchise.”
This ruling, which obviates the objection that my construction of the statute would work an unconstitutional impairment of the contract, is so direct and authoritative that further argument along that line is unnecessary. That objection being removed or overruled takes with it the further assertion of “vested rights.” The corporation has no rights which are so* vested as to be immune against the proper exercise of the state's reserved power. It has, of course, the right to acquire and accumulate property, of which neither state nor city can deprive it, save as follows: If, as may well happen with respect to some species of corporate property, the proper exercise of the reserved power of the state operates to destroy or diminish its value, or interfere with its profitable use, it is damnum absque injuria; for, the right of the state so to do ■being provided for in the contract, the resultant injury is not .a wrong. But, so far as the corporation has or acquires property or rights which are beyond the sphere or scope of the .powers reserved by the state, they are protected as sacredly and by the same guaranties as are those of a natural person. ■Under our law, therefore, the right of a corporation to hold and enjoy a public franchise by grant from a .city or town Is ,a right obtained and held subject to the control of the state, and its- enjoyment is subject to such additional conditions as the *651state may, in its wisdom, from time to time place upon it. The subject is thoroughly considered in Greenwood v. Freight Co., 105 U. S. 13 (26 L. Ed. 961). There, a street railway corporation known as the Marginal Company obtained by act of the legislature the grant of a franchise to construct and operate a railway upon the streets of Boston. The grant was accepted and certain lines of the railway constructed. Five years later, another railway company was, by a similar act, authorized to construct another railway along and upon the same streets, and to condemn for such use the railway of the first company. The validity of the last grant was contested in the courts, on the ground of its alleged interference with the rights which had vested under the original grant. The case having reached the Federal court of last resort, the second grant, which wholly destroyed the franchise of the original company, was held to be a valid exercise' of the power reserved to the state to amend or repeal the act of incorporation. Speaking of the effect of the repeal of a corporate charter, the court says:
“One obvious effect is that it (the corporation) no longer exists. Its life is at an end. Whatever force the law may give to transactions into which the corporation entered, and which were authorized by the charter while in force, it can originate no new transactions dependent upon the power conferred by the charter. . . .. Personal and real.property acquired by the corporation during its lawful existence, rights of contract, or choses of action so acquired, and which do not in their nature depend upon the general powers conferred by the charter, are not destroyed by such a repeal. ... It results from this view that, whatever right remained in the Marginal Company to its rolling stock, its horses, its harness, its stables, the debts due it, and the funds on hand, if any, it no longer .had the right to run its cars through the streets, or any of the streets, of Boston. . . . Whether this action was oppressive or unjust, in view of the public good, or whether the legislature was governed by sufficient reason in .thus repeal*652ing the charter of one company and in chartering another, . is not, as we have seen, a judicial question in this case.”
So the Massachusetts court, after upholding the right of the state to create a corporation and reserve the right to control it, says that the legislature may “grant absolutely or on condition; so they may grant during pleasure, or until a certain event happens. And if a grant be acc&pted on the terms prescribed, it becomes a compact, and the grantees cam have no reason to complain of the execution of their own contract.” Grease v. Babcock, 23 Pick. (Mass.) 334, 342. See, also, McLaren v. Pennington, 1 Paige Ch. (N. Y.) 102, 107.
A corporation was chartered in the state of Maine in the year 1833, when a general statute was in existence, reserving to the state the right to repeal or amend the charter. In 1839, another general statute was enacted, charging stockholders in corporations chartered after 1831 with personal liability for corporate debts. The company thereafter contracted a debt which the creditor undertook to enforce against one of the stockholders. His right to do so was sustained on the theory that placing this additional burden upon the stockholders was within the reserved power of the state. The court adds this pertinent remark:
“If the corporators were not satisfied with their individual liabilities, they had it in their power to cease incurring them.” Stanley v. Stanley, 26 Me. 191.
So, too, this court, in an early period of its history, replying to the complaint that the exercise of the reserved power was a hardship upon the corporation and possibly destructive of its property, said:
■“If the corporation have suffered from the undue exercise of such power, they have only to censure themselves for the folly of accepting the grant upon the terms specified.” Miners’ Bank v. United States, 1 G. Greene 553, 563.
This ease is cited in our recent case, State v. Des Moines City R. Co., 159 Iowa 259. The opinion in the latter ease, *653written by Deemer, J., discusses very thoroughly and convincingly several principles having an important bearing upon the case in hand, and may be studied with profit.
To recapitulate: The reserve power in the state, to impose upon defendant the duty of compliance with the same terms which are required of all other telephone companies is clear and ample; the general terms of Code Section 776 are broad and general enough to include the defendant, and, as a matter of even-handed justice, it should be so applied; to thus enforce it neither impairs the obligation of the contract implied in the grant nor interferes with any vested rights; and it neither declares nor works a forfeiture; nor does it have any retrospective effect. It is the wise policy of this state to grant no exclusive rights, and to place upon a common level of right and of opportunity before the law all persons pursuing.the same lawful business, and to grant no special public privileges which are not terminable whenever the state, acting through its proper authorities, shall find such action promotive of the public good.
For the reasons stated, I dissent from the opinion expressed by the majority, and would affirm the judgment below.