(concurring specially) : I concur in the propositions enunciated in the first, sixth, seventh, eighth and ninth paragraphs of the syllabus, and dissent from the others, especially from paragraph 5, which holds that the act of 1870 under which the bonds in question were issued is valid. I believe it to be void. The act of 1870 is a special act conferring corporate power upon the city of Lawrence. That it is special seems incontestable ; it relates to that city alone, and authorizes one particular act. That it is special in form and that it confers corporate power is conceded in the opinion - of the court, but it is nevertheless held that it is not a special act conferring corporate power within the meaning of section 1 of article 12 of the constitution, which declares that “the legislature shall pass no special act conferring corporate powers.” An act which relates only to one designated city out of many of the same class, and never can relate to any other, is a special act, not only in form but in fact. This proposition is so evident that argument can not make it plainer, and is settled by many decisions of this court, *271among others, City of Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800, and The State v. Downs, 60 Kan. 788, 57 Pac. 962. That it confers corporate powers is equally clear. The power to issue bonds and levy taxes to pay them is a corporate power. This proposition was stated in the briefest and most forcible manner possible by Mr. Justice Valentine thus:
“Any power conferred upon a corporation, and to be exercised by the corporation, is a corporate power. A power that would not be a corporate power if exercised by an individual becomes a corporate power when exercised by a corporation.” (Gilmore v. Norton, 10 Kan. 491, 504.) .
This language was used with reference to a city, and all special acts purporting to confer corporate power upon cities have, because of this constitutional inhibition, been held void in this state in an unbroken line of decisions, from Atchison v. Bartholow, 4 Kan. 124, decided in 1866, to Davenport v. Ham, 72 Kan. 179, 83 Pac. 398, decided in 1905. In this multitude of cases it was uniformly held that this constitutional inhibition applies to municipal corporations, although not applying to qwasi-corporations, such as counties, townships, and school districts. Very emphatic language has been used by this court in maintaining the integrity and enforcing the operation of this restriction, in view of the multitude of evils it was designed to prevent. In City of Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800, where the act under review provided for the extension of the corporate boundaries of three certain cities, the court said:
“It is admitted that section 1, article 12, of the constitution applies to cities, towns and villages, as well as to corporations of a private character, and that all such corporations, municipal as well as private, must be created, governed, regulated and controlled by general laws only, and can not be 'created, governed, regulated or controlled, or increased or diminished, by any merely special act or acts.” (Page 434.)
*272In Gray v. Crockett, 30 Kan. 138, 1 Pac. 50, where the special act attempted to reduce the territory within the city, the court declared:
“Not only are cities to be organized in accordance with the provisions of a general law, but their powers, if changed or limited at all after their incorporation, should be so changed and limited by general law.” (Page 145.)
In the same opinion it was\ said:
“In the case of Atchison v. Bartholow, 4 Kan. 124, this court decided that article 12 of the constitution is restrictive of the legislative power of this state conferred by section 1 of article 2, and was inserted to prevent abuses. It was further decided therein that said sections 1 and 5 of article 12 of the constitution apply as well to municipal corporations as to other corporations. The court also held that within the terms of section 1 no corporate powers can be conferred by special legislation.” (Page 143.), ’
In Beach v. Leahy, Treasurer, 11 Kan. 23, Mr. Justice Brewer pointed out the distinction between cities and school districts in the operation and effect of this constitutional provision, holding emphatically that it applied to the former, in these words:
“As to all organizations covered by its terms its provisions are absolute, and this section binding. No corporate powers can be given to them by special act.” (Page 28.)
Like solemn judicial declarations might be quoted from many decisions running through forty years of history without variation or limitation. The corporate powers referred to in this article being thus construed to apply to cities, the restriction is established beyond doubt or question. It only remains for the court in' any given case to inquire, first, if the act is special; second, if it applies to a city; and, third, if it attempts to confer corporate powers. If all these questions are answered in the affirmative, the contention ought to cease, for the constitution is supreme.
*273But it is said that the corporate powers were thus exercised for the benefit of the university, and as the constitution provides for a university the act is valid, although apparently in direct violation of another provision of the same instrument; that in order to maintain a university the legislature may disregard other parts of the fundamental law. The constitutional requirement to maintain a university does not require the violation of another mandate having the same sanction and being of equal importance. The exercise of the beneficent power to support the educational system of • the state, of which the university is the fitting crown, does not authorize the legislature, nor compel this court, to override another beneficent provision. The attempt to do so can not be supported by the argument of necessity, nor even of convenience. With all the revenues of the state available by the uniform taxation of all the property for the benefit of all the people, the legislature has found ample means to add great buildings and equip and maintain great schools upon Mount Oread, giving just pride to all our citizens. It is true that Lawrence volunteered to assume this burden; but it was to prevent the assumption of such unequal burdens through the temptation of local benefits and growth, fondly hoped for, that, among other reasons, this restriction was placed in the constitution. This and other constitutional limitations were provided by the people themselves to restrain their own. improvident ardor in times of undue elation or speculative mania, and to hold in check the possible excesses of their own representatives. The assumption of grievous burdens beyond those necessary for proper municipal purposes, induced by local clamor through visions of future greatness, was among the ills sought to be avoided. This court, in speaking of these limitations, said:
“An evasion of so important a provision of the constitution ought not to be favored in any degree. The abuses and corruptions in legislation are mainly the *274result of private and special laws, and the remedy, and the only remedy which has proved effectual to prevent this, is found in severely depriving the legislature of the power to legislate for. any citizen in preference to or at the expense of the whole. Obsta principiis—stop the beginnings, and stop them decisively, is very necessary to such legislation as is attempted lay said section 25. If sustained, it fritters away section 1 of article 12, defeats the object of its provisions, and permits the abuses which it was intended to prevent.” (The State, ex rel., v. Lawrence Bridge Co., 22 Kan. 438, 457.)
The same reasoning applies to cities. In Atchison v. Bartholow, 4 Kan. 124, Mr. Chief Justice Crozier said:
“Before the adoption of the constitution; the practice was to create corporations and organize cities and towns by special laws. . . . The organization of cities and towns, by special enactment, is demonstrably equally impolitic. The members from a certain city or town, for the purposes of individual aggrandizement or immunity, might desire a change in their organic law. A bill is framed and submitted, and when action is to be taken thereon the body is informed that it expresses the views of the° representatives of the locality immediately affected; whereupon no objection is made, and the work is .done. ... To prevent just such abuses, and others equally meretricious, the twelfth article was inserted in the constitution.” (Pages 144, 145.)
Some- of the evils that this wholesome restriction was intended to prevent were stated by the supreme court of Ohio, in a case involving the consideration of a like restriction in the constitution of that state upon the powers of the city of Cincinnati, as follow:
“These provisions of the constitution are too explicit to admit of the least doubt that they were intended to disable the general assembly from either creating corporations, or conferring upon them corporate powers, by special'acts of legislation. It was intended to correct an existing evil, and to inaugurate the policy of placing all corporations of the same kind upon a perfect equality as to all future grants of power; of making such law applicable to all parts of the state, and thereby securing the vigilance and attention of its *275whole representation; and finally, of making all judicial constructions of their powers, or the restrictions imposed upon them, equally applicable to all corporations of the same class. ,We must give such a construction to the constitution as will preserve its leading objects intact.” {The State ex rel. The Attorney-general v. The City of Cincinnati, 20 Ohio St. 18, 36.)
After quoting the above language with approval Judge Dillon, in Commercial Bank v. City of Iola, 2 Dill. (U. S. C. C.) 353, 6 Fed. Cas. (No. 3061) 221, (reported also in the appendix to 9 Kan. annotated) said:
“One of these objects in Kansas, as well as in Ohio, was to cut up by the roots the mischief of special legislation, particularly in respect to corporations, both public and private. The object would be defeated if the special act relating to the city of Iola could stand.
“If, under the doctrine of Butz v. Muscatine, 8 Wall. 575, 19 L. Ed. 490, this court is not absolutely bound, in this class of cases, to follow the interpretation of the state constitution.given by its highest court, yet it seems that it ought to follow it where it appears to rest upon solid grounds, and was made in cases and in respect to questions where there was nothing to warp the judgment of its judges, and Where the interpretation was settled or had been declared at the time the act in controversy was passed.” (Page 358.)
The learned jurist who decided that case evidently understood that the previous decisions of this court had given full effect to this wholesome restriction, as applying to cities, just as it is written.
It is argued, however, that because there is but' one university a law relating to that institution is in its nature general. If this should be granted, it is still true that the law is special as to Lawrence, and expressly confers corporate power—the precise thing prohibited. To say that this restriction does not apply because the end sought by the exercise of the corporate power thus given is a public matter of general concern nullifies the restriction and denies its application to a great variety of subjects. The inhibition is *276upon the grant of power; the constitution makes no exception in favor of power to be exercised in behalf of the university or other public institutions or concerns. The constitution does not say that the' legislature shall pass no law conferring corporate power except for .general public purposes, but stops with the general prohibition, making no exception. We have no more right to read the above italicized language into that instrument than we have to import into it an exception “for purely municipal purposes.” In the opinion of the court it is said the power can not be conferred by special act for ordinary municipal purposes, such as provisions for a water supply or street lighting, but that it may be done to promote matters of general public concern, such as the building of a university. To permit the delegation of corporate power for either purpose transgresses the plainly written mandate of the constitution. The meaning apparent on the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. (Cooley, Const. Lim., 6th ed., 70.) Judge Cooley quoted from Newell v. The People, 7 N. Y. 9, 97, as follows:
“Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing which we are to seek is the thought which it expresses-. To ascertain this,, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a right to add to or take away from that meaning.” (Cooley’s Const. Lim., 6th ed., 71.)
*277No emergency can affect the meaning of the language used in this restriction. Special legislation is usually demanded by its promoters on the plea of necessity arising out of extraordinary conditions. This was the claim by which an attempt was made to justify the oil refinery act {The State v. Kelly, 71 Kan. 811, 81 Pac. 450) and the Chanute court act {Baughman v. Nation, 76 Kan. 668, 92 Pac. 548). Happily for the public welfare the validity of 'a statute does not depend upon an emergency, but upon the power granted or withheld by the constitution. The declaration now made that corporate power may be conferred by special act to aid the university because it is of general public concern does not have its sanction in prior decisions of this court any more than in the language of the constitution. On the contrary, the opposite view has hitherto been taken. Thus, while it was held in The State v. Atkin, 64 Kan. 174, 67 Pac. 519, 97 Am. St. Rep. 343, that the opening and improvement of streets and highways is a matter of concern to the whole people of the state, and that the state has paramount authority over it, yet in Gilmore v. Norton, 10 Kan. 491, it was decided that a special act attempting to confer corporate power upon the city of Emporia to improve a public street was void. The opinion stated r
“The city itself must legally authorize the improvements to be made, and become itself legally liable to pay for the same, before it can legally enforce the abutting lot-owners to pay for the same. Can the legislature by a special act confer upon the single city of Emporia powers not possessed by any other city in the state of Kansas ? We think not. {Atchison v. Bartholow, 4 Kan. 124, 141, 145, 146; Wyandotte v. Wood, 5 Kan. 603; State v. Cincinnati, 20 Ohio St. 18, 36.)” (Page 505.)
Again, in considering the validity of the act (Laws 1891, ch. 98) to authorize the building of a bridge over the Kansas river in Topeka, it was held that the act was void because it was a special act conferring cor*278porate power, and yet it provided that the bridge should be built by Shawnee county, the only corporate power given to the city being to assume and pay certain incidental damages to property owners, although it imposed restrictions as to street-railroad tracks, gas pipe-lines and telpehone. lines. (Comm’rs of Shawnee Co. v. The State, ex rel., 49 Kan. 486, 31 Pac. 149.) Highways are usually regarded as matters of general public concern, although constructed by local subdivisions of -the state (Gray, Lim. Tax. Power & Pub. Indebt. §§ 622-629), and the same view was taken as to city parks in Wulf v. Kansas City, 77 Kan. 358, 94 Pac. 207. This doctrine was also recognized in LaHarpe v. Gas Co., 69 Kan. 97, 76 Pac. 488. Thus it appears that while the decisions of this court recognize bridges and streets as matters of general public concern, they have denied the right of the legislature to confer corporate power upon cities to build or improve them. Actual use by the public generally does not determine the , public character of an institution, a bridge or a highway, but the fact that it is open to all the public who wish to use it upon equal terms to all.
Thus we see that the attempt to limit the operation-of this restriction to acts empowering cities to supply water, light, sewers and like primary concerns of municipalities is prevented by our own decisions, unless we now overrule them. While the distinction between the primary concerns of a municipality, and its governmental affairs, wherein it acts as an agent of the state, is sometimes properly made, no such distinction can be logically made here. The restriction is upon the giving of any corporate power, and corporate power is as essential to the issuance of bonds for a university as for water-plants or sewerage. The right to issue them in any case involves the exercise of corporate power, and the conclusion logically follows that an act conferring such power is as clear a violation of the constitution in one case as in the other.
*279The constitution commands the' legislature to establish an agricultural and normal school, as well as a university. (Art. 6, § 2.) It is also required to foster and maintain, charitable institutions, and to'establish a penitentiary. (Const, art. 7.) It is expressly commanded to provide for the militia. (Const, art. 8.)' Following this decision, it must hereafter be held that the burden of building such institutions, or providing an armory, may be laid upon cities of this state at the discretion of the legislature. This precedent, however, will apply to a much wider field. The legislature has no greater power to provide for a university and penal and charitable institutions, because expressly named in the constitution, than it has to build or extend a statehouse, establish highways, build bridges, and provide other institutions and public facilities not named in that instrument. The sanction of its power is the same in all matters in which.it may levy taxes, restrained only by the express limitations of the constitution. The support of the university is only one of a multitude of such purposes allowed under the general powers granted by section 1 of article 2, which includes all legislative power. (Atchison v. Bartholow, 4 Kan. 124.) Where the legislature has power to do anything, the fact that it is commanded by the constitution to do it does not add to its power, although it may quicken the sense of duty of its members.
It is a familiar rule of constitutional construction that effect is to be given to every part of the whole instrument, and to every section and clause. (Cooley’s Const. Lim., 6th ed., 70.) We have here two provisions: “The legislature shall pass no special act conferring corporate powers” (Const, art. 12, § 1), and “Provision shall be made by law for the establishment ... of a state university” (Const, art. 6, § 7). It is held in the opinion of the court that the latter is paramount, and that the former can not “limit or restrict the power of the legislature in selecting the agencies it might *280deem appropriate to accomplish a purpose of this kind,” and so corporate power may be conferred by special act to aid in building the university, notwithstanding the first above express provision. Why should one clause of the same instrument be held to overthrow another, when there is no conflict between them ? The supreme court of Illinois used the following felicitous language:
“There may, in construction, be transposition of sections, paragraphs and sentences, and words may be restricted or enlarged; but it is unauthorized to take a part of a paragraph or section and construe that without reference to another part of the same paragraph or sentence.” (Tuttle v. Nat. Bank of Republic, 161 Ill. 497, 502, 44 N. E. 984, 34 L. R. A. 750.)
Full effect can be given to the clause declaring that provision shall be made for a state university, while upholding the provision denying the power of the legislature to confer corporate power by special act. Not only is there no necessary conflict, but if brought into conflict at all it is by giving to the first-named provision a scope and effect at variance with the natural significance of the language used. To provide for a university fairly implies the use of the usual means of taxation.—the same means to be resorted to in providing a state capitol or other necessary institutions. It is a strained construction that draws to these ordinary requirements, incident as they are to sovereignty, the extraordinary power to violate another provision of the constitution to carry them into effect, especially when it is manifest that the usual means are ample.
It was held in The State v. Nation, 78 Kan. 394, 96 Pac. 659, and in The State v. Hutchings, ante, p. 191, that the general power to create courts inferior to the supreme court, contained in section 1 of article 3 of the constitution, could not be exercised by special act because of the restrictions imposed by section 17 of article 2, and that courts established by the legislature must be created by general law, thus con*281struing the two provisions together and giving full efficacy to both. It is not perceived why the same rule should not apply here, wdfich would permit the building of a university and other state institutions by general tax imposed by general laws and prevent such undertaking through a resort to corporate power conferred by special acts. The people have, recently endeavored to protect themselves against the accumulating evils of special legislation by the constitutional amendment of 1906, given wholesome effect by the decisions in Deng v. Scott County, 11 Kan. 863, 95 Pac. 592, and Anderson v. Cloud County, 11 Kan. 721, 95 Pac. 583. The departure taken by the decision in this case will open a new field for the operation of special laws, whose extent no man can measure at this time, and will greatly lessen the good results confidently hoped for by the people in the adoption of this amendment imposing the duty upon this court to restrain such special legislation.
Another constitutional inhibition is: “The state shall never be a party in carrying on any works of internal improvement.” (Art. 11, § 8.) Concerning this restriction it was said, in The State v. Kelly, 71 Kan. 811, 81 Pac. 450, 70 L. R. A. 450, that no circumstances can arise which will justify its violation by any governmental department. The language of the section under consideration here is as clear, strong, and explicit as that quoted above. Both are wise restrictions upon legislative power, to which all in authority should yield prompt obedience.
The distinction between the act in question and the act incorporating the university, referred to in The State, ex rel., v. Regents of the University, 55 Kan. 389, 40 Pac. 656, 29 L. R. A. 378, is easily apparent. That act was held to be valid, among other reasons, because it related to the university and there was but one; but there were many cities and many of the class to which Lawrence belonged when this act was passed. The act *282of 1870 is an act to authorize the city to issue bonds, and that issue, whether for the university or not, involved the exercise of corporate power. In order to have that power it must have been conferred by the legislature, which could not be done by special act. The act, being special, is void; therefore the bonds- are void.
I concur in the views of the court that the act of 1883 is valid for the reasons stated in the opinion, and for the additional reason that, the bonds being void, the school fund was already diminished, and the act should be considered as a legislative effort to restore it.