ON REHEARING.
SIMPSON, J.The ordinance involved in this case is clearly an exercise of the governmental functions of the city. It has none of the elements of a contract, but is purely a grant of the right to place poles in the streets by the governing body of the city. The company did not bind itself to do anything, but Avas free to enter upon the work or not, as it might choose, could not have been forced by the city to act at all, and, even after it had erected its poles, it might have removed them and ceased to do business, at any time, without a violation of any contractual obligations. As shoAvn in the original opinion in this case, every ordinance granting special privileges must be construed as if section 23 *547of article 1 of the Constitution of 1875 was written into the ordinance. If the ordinance had had written into it a. prolusion declaring it revocable, certainly no court would hold that it could not he revoked.
The Alabama cases referred to were dealing simply with the exclusive feature of the section of the Constitution, and consequently there was no necessity for discussing the right of revocation. In fact, they derived the exclusive feature from the revocability of the grant.
To construe this section of the Constitution as referring merely to monopolies, or to exclusive grants, is simply to write out of the Constitution its important word, and to write into it other words. The section in question does not mention monopolies, nor is the word “exclusive” in it. It provides merely that “no ex post facto law, or any law impairing the obligation of contracts or making any irrevocable grants of special privileges or immunities, shall be passed by the General Assembly.” And, when the Constitution of 1901 was adopted (section 22), it emphasized the expression, providing, not that no irrevocable grant of exclusive privileges shall be made, but that “no irrevocable grant or exclusive grant” of special privileges shall be made, and provides that “every grant,” etc., shall forever remain subject to revocation. So its prohibition is against making any irrevocable grant. In other words, the decisions are based On the reasoning that inasmuch as the Constitution has forbidden the making of any irrevocable grant, and can revoke any such grant in toto, it necessarily follows that it can revoke it in part, by granting the same franchise to another. The argument to the contrary is to say that, because the Supreme Court has declared that something not specially mentioned in the Constitution (to wit, exclusive grants) is included in its prohibition, therefore the subject which is dis*548tinctly mentioned in the Constitution (to wit, irrevocable grants) is not within the prohibition. "As well say that because the court has said that increasing the punishment, or the degree of the crime, is included in the ex post facto clause of the Constitution, therefore the actual making some act previously committed a crime, which was not so before, was not intended to be prohibited by the section, or because making certain acts constitute murder is ex post facto, yet the section does not refer to any other crime. It cannot be doubted that the privilege of erecting telephone poles is a special privilege — that is, a privilege not enjoyed except by a special grant — and according to the plain words of the Constitution all such grants must remain revocable.
The following Alabama cases referred to contracts by which certain companies entered into agreements to construct and operate certain works for the benefit of the city, and the city, in turn, granted certain franchises. In Weller et al. v. City of Gadsden, et al., 141 Ala. 642, 37 South. 682, 3 Ann. Cas. 981, the ordinance in question involved a contract, by which the water company agreed to furnish the city with water for fire' plugs and hydrants, and to furnish water free of charge for certain public buildings and fountains, and for sprinkling the streets, in consideration of which the franchise was granted. In City of Gadsden et al. v. Mitchell et al, 145 Ala. 137, 156, 40 South. 557, 558 (6 L. R. A. [N. S.] 781, 117 Am. St. Rep. 20), the same contract or ordinance was before this court, and the evidence showed that the ordinance had not been repealed, but, on the contrary, that another ordinance had been passed showing that certain modifications had been agreed upon, “and the original contract was in all things ratified and confirmed, and declared to be in full force.” The party demanded of the city to do certain *549things Avhich the contract required it to do, and this court properly held that the only question was AAdiether Avitli the contract “still in force and unrepealed, said city can refuse to carry out its provisions.” — 145 Ala. page 157, 40 South. page 558, 6 L. R. A. (N. S.) 781, 117 Am. St. Rep. 20. This court also declared that the making of such a contract was not a delegation of a governmental function, but an exercise of its business or proprietary poAvers, but distinctly pretermitted deciding the question whether, even as to that contract, the city could repeal the ordinance. In the case of City of Greenville v. Greenville Waterworks Co., 125 Ala. 625, 639, 27 South. 764, 769, the city entered into a contract with the Avater company by which said company agreed to furnish the city water for fire plugs, hydrants, etc. Suit was brought for amounts due for service rendered, and the city set up as a defense that the council had no power or authority to make such a contract. No question of the right to repeal was raised. The court held the contract valid, as an exercise of the business poAvers of the city, but expressly pretermitted the question as to Avhether that part of the ordinance “in respect to the exclusive and continuing features of the franchise” Avas ultra Adres. The case of City of Bessemer v. Bessemer Watewoorks, 152 Ala. 391, 406, 44 South. 663, 667, involves a contract by the city with the water company to furnish Avater for the uses of the city and its inhabitants, and it is true that this court held such a contract an exercise of the proprietary or business poAvers of the city. There was no attempt to repeal the ordinance by which the contract was made. The case of Birmingham & Pratt Mines Street Railway v. Birmingham Street Railway, 79 Ala. 465, 475, 58 Am. Rep. 615, asserts the' self-evident proposition that, if the Legislature cannot make an irrevocable grant, “a *550fortiori, a mere municipality would have no such power.”
What has been said of this constitutional provision is absolutely decisive of this case, but, in addition, the numerous cases cited by counsel in opposition to this rehearing are at least persuasive, if not conclusive to the proposition, that any grant of such privileges, without any limit of time, must necessarily be a mere license, which is revocable.
I think the application for a rehearing should be overruled, and in this opinion Dowdeld, C. J., and McClellan, J., concur, but as a majority of the court, for various reasons expressed in their several opinions, hold that the rehearing should be granted, the judgment of reversal is set aside, and a judgment of affirmance entered.
Affirmed.
Anderson, Mayfield, Sayre, and Somerville, JJ., concur. Dowdell, O. J., and Simpson and McClellan, JJ. dissent.