I join Justice Mayfield in the dissent from the majority holding, but wish to rest my conclusion on the one fact — that the complainant was authorized by the statute, section 2490 of the Code of 1890 [5817, Code of 1907] to erect its line along the margin of the streets of New Decatur, whether with or without the consent of the municipality. This authority being given by the Legislature, the municipality had no right to declare the poles and wires of complainant a nuisance per se or to order them removed, and in my opinion the bill contains equity. The statute says: “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 term ‘highway/ as used in the statutes, is generally held to include streets, unless the statute itself indicates a different intention.” — 28 Cyc. 834, and many cases cited in note 9. I do not think that the statute in question indicates that the word “highways” should include only rural roads; fox*, while it appeal’s in a chapter pertaining to public roads, the word “roads” is used in every section except this one, where the word “highways” is substituted, thxxs evincing a legislative intent not to confine the right to roads elsewhere dealt with in the chapter, but to extend it to all highways and to use a word that *543gives the subject its broadest meaning. This identical statute was held to include streets in the case of Southern Bell Telephone Co. v. City of Mobile (C. C.) 162 Fed. 523, and which said case was affirmed by the Court of Appeals (174 Fed. 1020, 98 C. C. A. 663). True, this construction may not be binding on this court, but it should be very persuasive, especially when supported by nearly every court and text-writer in the country, and to my mind it should be followed, especially when a different holding involves the destruction of property and is revolutionary in results.
It may be true that the right could not now be given by the Legislature without the consent of the municipality (section 220 of the Constitution of 1901), but this constitutional restriction did not exist when this complainant’s vendor first constructed its line upon the streets of New Decatur. On the other hand it may be conceded that the right was derived from the city, was contractual, and authorized by the charter of the municipality, as is indicated by the majority opinion, yet I cannot agree that the ordinance reserved the right to revoke the contract or that section 23 of the Constitution does so. To my mind, section 3 of the ordinance merely reserved the right to regulate and control the use of the streets, and did not reserve the right to revoke the grant or contract. Therefore, if the grant was authorized, as my Brothers hold, then it became a contract, and as such it has always been protected from impairment by the federal and state Constitutions, each of which prohibits the passage of any law by which the obligation of any existing- contract is impaired or lessened. — Mobile v. L. & N. R. R. Co., 84 Ala. 115, 4 South. 106, 5 Am. St. Rep. 342. This case dealt with a grant similar to the present one, and is an authority in point, that it is a binding contract to be protected *544under the federal and state' Constitutions, unless the Constitution of 1875, which did not apply to the grant then considered, applies to the present grant, which was made in 1898 and prior to the Constitution of 1901, and which said last Constitution should be discarded from the consideration of this case, as section 22 is not identical with section 23 of the Constitution of 1875, and the use of them in connection with each other, as is done in the majority opinion, can serve no good purpose and will only lead to confusion. I think that the majority misconceive the meaning of section 23 of the Constitution of 1875, and treat it as saying and meaning that the Legislature can grant neither an exclusive nor a perpetual privilege or immunity, when it neither says nor means anything of tlie sort. There is nothing in the grant that makes it exclusive, and the only theory upon which the majority can read section 23 into the ordinance is that it is perpetual, as no limitation is placed upon the same or no time fixed for the termination of the contract. Section 23 says: “That no ex post facto law, or any law impairing the obligation of contracts, or making any irrevocable grant of special privileges or immunities, shall be passed by the General Assembly.” It does not say that irrevocable grants cannot be made of privileges not special, but prohibits only irrevocable grants of special privileges or immunities, and which means exclusive privileges or immunities, and does not prevent irrevocable grants of privileges which are not exclusive. “Special privilege,” is defined in 36 Cyc. 523, to mean, when used in constitutions, as a “right, a power, franchise, immunity or privilege granted to, or vested in, a person or class of persons to the exclusion of others and in derogation of the common right.” Our own court, in an able and well-considered opinion, by Somerville, J., in the case *545of Birminghani R. R. v. Birmingham & Pratt Mines R. R., 79 Ala. 465, 58 Am. Rep. 615, in effect, adopted the foregoing meaning of “Special privilege,” and construed it as meaning exclusive privilege. Says of section 23: “ What, it may be asked, is the nature of these special or exclusive privileges, which are thus prohibited to be granted by the Legislature? It seems plain from the very terms used that the evil intended to be specially prevented was the granting of exclusive privileges in the nature of a monopoly by the legislative creation of corporate franchises.” The ordinance granted the complainant’s grantor no exclusive use of the streets for telephone purposes and in no manner created or attempted to create a monopoly, and, as long as it did not do that, the grant could be perpetual without doing violence in the slightest to section 23 of the Constitution of 1875. It may be true that such a grant cannot extend over 30 years under the Constitution of 1901, but said last Constitution has no application to the present grant. The grant in question, though perpetual, but not exclusive, was not subject to revocation, under the terms of said section 23 which should not be read into the ordinance, as stated in the majority opinion, as said section has no application except to prohibit the irrevocable grant of “exclusive” privileges or immunities., and there is nothing exclusive in the ordinace in question. I therefore think that- if the ordinance was authorized, as held by the majority, it became a binding contract which could not be impaired or revoked by the Legislature or the municipality, and that it did not fall within the influence of.section 23 of the Constitution of 1875, as it was not such a grant as is thereby prohibited. So, under any aspect of the case, whether the grant was under .section 5817 of the Code of 1907, or the ordinance of the respondent, one or both, it was ir*546revocable as to this respondent, and the lower court properly held that the bill contains equity. Whether the complainant occupies the streets directly under the statute or through the ordinance of the respondent or regardless of the inviolability of the grant, the city Avould no doubt have the right to have the poles or lines removed or put under ground, if maintained in such a way as to constitute a nuisance, but that should be done under legal process, and not upon the mere ipse dixit of the respondent.
As stated in the outset, I think the grant Avas under section 5817 of the Code, and not under an ordinance of the city, and the other questions could well be pretermitted, but as the majority hold that the statute does not apply and the grant is derived from the ordinance, and which Avas authorized, which I merely assume but do not decide, then I think that the respondent did not reserve the right to revoke, nor does section 23 of the Constitution do so for it.