As will be seen from the statement of this case by the reporter, the question for consideration is the right of the municipal corporation of New Decatur to repeal a former ordinance granting to the appellee corporation the right “to construct, operate, and maintain lines of telephone and telegraph, including necessary poles, wires and fixtures, upon and along the highways of the said town,” etc. No time was fixed for the duration of said franchise, and the ordinance provides that “said company shall be subject to all ordinances now in force, or that may hereafter be passed, relative to the use of said highways of said town.” Subsequent to the repealing- ordinance, another was passed May 3, 1904, directing said company to remove its poles and wires from said streets within 30 days, and providing that thereafter the same would be considered as a nuisance, and the prayer of the bill is for a writ of injunction to prevent the enforcement of said ordinance. The original ordinance was an exercise of the governmental powers of the municipal authorities granting a franchise. In our Constitution of 1875 there was added to the section (mrw section 22, Const. 1901) that no ex post facto law, nor any law impairing the obligations of contracts shall be passed, this additional clause “or making any irrevocable grants of special privileges or immunities shall be passed by the General Assembly.” *498This, being a prohibitive law on the power of the Legislature, necessarily carries with it a like prohibition as to the lawmaking power of every municipal corporation, the creature of the Legislature. Subsequent to the adoption of said Constitution, every ordinance of a municipal corporation, in the exercise of its legislative powers, must be construed as if that section of the Constitution was.written into it. — Sioux City St. Ry. v. Sioux City, 138 U. S. 98, 107, 11 Sup. Ct. 226, 34 L. Ed. 898; Mayor of Mobile v. Stonewall Ins. Co., 53 Ala. 570, 578, 579. In the case of Weller et al. v. City of Gadsden, et al., 141 Ala. 642, 37 South. 682, the justice who wrote the opinion states distinctly that the matter involved was a contract “entered into by the city, in the exercise of its administrative or business powers, rather than under its governing or purely lawmaking authority” (141 Ala. 658, 37 South. 685), and proceeds to make remarks on the effect of section 22 of our Constitution, yet the other justices distinctly place their concurrence in the result on the ground that, whether the repealing ordinance was valid or invalid, the bill was without equity, and pretermit any concurrence in the views expressed in the opinion (141 Ala. 663, 37 South. 687). In the subsequent case of City of Gadsden et al. v. Mitchell, in which the same ordinance came up for consideration, this court pretermitted the question stating’“so that the only question is Avhether, with the contract still in force and unrepealed, said city can refuse to carry out its provisions.” — 145 Ala. 157, 40 South. 558, 6 L. R. A. (N. S.) 781, 117 Am. St. Rep. 20. This being the law, it necessarily follows that the original ordinance granting the franchise ay as subject to the power of the municipal authorities to repeal it.
*499It is next insisted that, under section 5817 of the Code of 1907 (section 2490 of Code of 1896), said telegraph and telephone company was authorized to occupy the streets of said town, regardless of any permission by the municipal authorities. Said section is a part of chapter 135, art. 1, entitled “General provisions as to public roads,” and the provisions of said chapter relate to the establishing, laying out, maintaining, etc., of the public roads of the counties, and not to the streets of a municipality. Said section is as follows, to wit: “The right of way is granted to any person or corporation having the right to construct telegraph or telephone lines within this state, to construct them along the margin of public highways.” The position of this section in the chapter referred to, and the fact that it is retained in the present Code, notwithstanding the Constitution of 1901, § 220, provides that “no person, firm, association or corporation shall be authorized or permitted to use the streets, avenues, alleys or public places of any city, town or village for the construction or operation of any public utility or private enterprise, without first obtaining the consent of the proper authorities of such city, town or village,” are pursuasive to show that said section 5817 was not intended to include the streets of any city, town, or village. It is true that the Supreme Court of Minnesota and other courts resting upon the general definitions of the word “highway” have held that the word includes “streets” (N. W. Tel. Ex. Co. v. Minneapolis, 81 Minn. 140, 83 N. W. 527, 86 N. W. 69, 53 L. R. A. 175), but we cannot assent to that conclusion. We prefer the reasoning and conclusion of Start, C. J., in his dissenting opinion in that case. — 81 Minn. 165, 86 N. W. 75, 53 L. R. A. 191. This conclusion is reinforced by the numerous sections of our Code showing that all legislative matters *500in regard to the streets and other subjects in cities and towns are committed to the municipal authorities.
We hold, then, that said company cannot rest its rights, upon said section 5817. It results that the court erred in overruling the demurrer to the bill as amended and motion to dissolve the injunction.
The decree of the court is reversed, and a decree will be here rendered sustaining the demurrer to the bill as amended, and granting the motion to dissolve the injunction.
Reversed and rendered.
Dowdell, C. J., and Simpson, McClellan, Sayre, and Somerville, JJ., concur. Anderson and Mayfield, JJ., dissent.