delivered the following dissenting opinion:
The railroad tracks through the city of Canton and over its streets have been there more than forty 'years, and there has never been, and is not now, any trouble about a supply of water, of which there is plenty, nor any effort by the Illinois Central Railroad Company, until now, or by any of its predecessors, to excavate the public streets of the city to lay pipes *310in order to get water by purchase from another corporation or individual. Its position here is that it has the state’s power, which has no need to say to a city, “By your leave,” when it proceeds to dig up its streets and throw ditches at right angles across them. This proposition calls for examination to see whether, as a matter of reason or law, this foreign corporation, organized and existing under the laws of the state of Illinois, does not have to say, “By your leave.” Every citizen or domestic corporation has to say it before excavating a public street. A request for such specific power would no doubt be hooted out of any legislature in the Union. No corporation, foreign or domestic, it may be assumed, has ever had the hardihood to ask the grant of such specific power under the circumstances shown in this record. Even grants of rights of necessary surface construction over highways are always, everywhere, most carefully guarded. Code 1892, § § 2931, 2914, 3555. Here the claim is under power implied, not express. No citizen may defy the municipal government in its full police power over its streets — a power -necessarily inherent in such governments, and always and everywhere recognized by the courts. Then, clearly, before a foreign or domestic corporation can so act, it must be armed with a very plain legislative grant. Without creation by the people, private corporations are nothing. Without it they are more powerless than the humblest inhabitant. Without it a bacillus is a monarch in comparison The people have said to them: “Tour charter from us is your law, and you shall do nothing without our warrant upon a strict construction of the powers we grant.” The appellee railroad company must concede all this; must concede that the municipal government, elected by its people, has, subordinately to legislative action, the exclusive police power over its streets; must grant that, for the convenience and safety of citizens, who must go about on foot, on horseback, and in wagons, there can be no more important police power intrusted to the government they elect; must grant that not one of these citizens *311may lawfully dig up the streets. But they say, “We may, aud we will, without saying, ‘By your leave,’ to the city authorities.” And why? “Because,” they say, “the power in us to do this is necessarily implied as incidental to express powers given to our remotest predecessor by the state legislature.” Curious that a legislature, which is the sovereign people, sitting as lawmakers in a pure democracy, should give you power to dig up streets at your pleasure, without authority from, and in defiance of, the local government which they themselves have armed with exclusive jurisdiction over streets, and without even consulting the authorities. Curious that they should equip you with a supra jurisdictional force which the foremost citizen could not exercise without punishment by fine or imprisonment or both. - Still more curious that they should design this power to be inferred by implication.
Recognizing the necessity of showing credentials for the very unnecessary proceeding they want to put in operation, they produce two certain sections of charters given their remotest predecessors fifty years ago. One is this: “Sec. 3. Said company is hereby invested with all the rights and powers necessary for the construction, repair, and maintenance of a railroad through this state, and may purchase such land and material for the same as they may consider necessary.” This case, in one branch of it, turns on the scope of the word “necessary.” How a necessarily incidental power can be deduced from this to dig across three public streets, in defiance of municipal protest, in order to get cheaper water from another corporation, which could not so dig, is beyond my power to take in. No case is produced to support such view. Being doubtful about the sufficiency of this, they produce another section, in these words: “Sec. 2. "Whenever in the construction of said railroad it shall be necessary to cross or intersect any established road or way, it shall be the duty of said president and directors so to construct said railroad across any road, already or hereafter to be established by law, so as not to impede the passage *312or transportation of persons or property thereon; and when it shall be necessary to pass through the land of any individual, it shall also be their duty to provide a proper wag’on way across said railroad from one part of the land to another.” If this means anything, it limits and confines the railroad to surface work over roads, and certainly does not squint at the power to excavate to lay water mains in public streets. By no construction of this charter by any rule known to me, or sanctioned by any known decision, can be deduced an incidental authority to excavate the streets of a city, forty years after construction, for gain. Such a conclusion, to my mind, makes it follow, “as the night the day,” that they may dig a cistern in the street, and connect with it by sub-surface pipes. My associates must agree that it does follow that, if Canton were a Chicago or Washington City, the company may dig into and across a dozen asphalt boulevard streets to get not merely water, but cheaper water. In my view, the bare statement of the proposition overthrows it. But this sec. 2 has no bearing whatever on the question here. It relates to construction only and over roads. Neither section, on any right reasoning, can be construed to refer to any power, after construction, to dig into streets, without the police supervision of the city, for water, after forty years of use of the constructed railroad, when the water is not “necessary.” Here it is not pretended to be necessary. Sec. 3, supra, confers only “rights and powers necessary for the construction, repair, and maintenance of a railroad through this state,” etc. “Necessary” means what must be — that is, unavoidable; not merely convenient or advantageous. True, the' courts give a somewhat liberal interpretation to the word “necessary” in considering grants of powers, even to corporations, but there is no instance known to me, or adduced, which sustains the claim of the foreign railroad company here. It is not conceivable that the legislature intended to grant by sec. 3 any such power as is here claimed, which power has not been found necessary for nearly fifty years to the “main*313tenance” of the railroad, and cannot .be, and is not now said to be.
Illustrating the settled doctrine of non-extension by implication of the powers of corporations, see Downing v. Mt. Washington, 40 N. H., 230; Macon v. R. R. Co., 7 Ga., 221; R. R. Co. v. Briggs, 22 N. J. Law, 623; Perrine v. Chesapeake, 9 How., 184 (13 L. ed., 92); Ford v. Delta Pine Land Co., 164 U. S., 662 (17 Sup. Ct., 230; 41 L. ed., 590); Rorer on Railroads, 36; 1 Elliot on Railroads, p. 56; Ry. Co. v. Morris, 67 Tex., 700 (4 S. W., 156); State v. Beck, 81 Ind., 500.
But they say here the work can be done in a few hours — that it -is such a little thing. However, the principle is very large. They say, too, that by this undermining of three public streets they can get water cheaper than from the city which owns its own water plant. So it seems they want a strained and unnatural construction of their charter, not merely to get-water, of which there is a great abundance, but to get it cheaper than private citizens can. They want a lighter burden than the common people have to bear. Was this monstrosity ever contemplated by any legislature of any free people in the world ?
The fact disclosed is that the Canton Warehouse Company had contracted itself to do the digging and piping and to furnish water to the Illinois Central Ea-ilroad Company. But astute counsel seeing that the former could not dig streets to sell its water, an immediate arrangement was made in reliance on a forced construction of the railroad charter, and as a result we have what, in my opinion, is the first -instance in the recorded history of railroads where such an outrage as this ■record discloses was ever attempted on the government of the free people of any city.
The authorities cited for appellee have, in my judgment, no remote bearing on the question, except that by inference they support my position. Of course the company may dig wells on the right of way, and erect structures and telegraph poles on it, not in streets; but the plain implication is they may *314not do it to impede or obstruct ways of. public i)assage, and tbe authorities so differentiate. I regard the case in hand, in the principle it involves, as quite grave, and there can be no difference of opinion that a great corporation presents itself in very questionable shape in this record, whether right or wrong on the law.
If we are to consider, as we should (and as my associates must agree that we should), the municipal chapter of the code as of force, or as being a declaration of the public policy of the state, and as a recognition of the common law of all time applicable to the subjects now in hand, then there is another serious feature of this record to be. adverted to. In this view, the opinion of the majority of the court, in my judgment, is a judicial repeal of the spirit and letter of important independent clauses of five sections of Code 1892 — viz., § § 2933, 2947, 2948, and 2974. The record shows that these sections were adopted by ordinance of the city long before this litigation arose. Sec. 2947 gives the municipal boards “full jurisdiction in the matter of streets,” etc. Sec. 2931 empowers them to “regulate the construction and passage of railways and street railroads through the streets,” etc. Sec. 2933 empowers them “to grant to any person or corporation the use of the streets,” etc., “to lay gas, water, sewer, or steam pipes, etc., to be used in furnishing . . . any person or corporation with water,” etc. Sec. 2948 empowers them to “prescribe the rates for the sale of water.” Sec. 2974 empowers them “to regulate the crossing of railways . . . and provide precautions and prescribe rules regulating the same,” etc. “Full jurisdiction” means “exclusive jurisdiction,” as has been repeatedly held by this court, and so held as to sec. 2947 in the case of Blocker v. State, 72 Miss., 723 (18 South., 388). As may be gathered from what has been said, I favor the doctrine of strict construction of charters, and I stand opposed to the exercise of doubtful powers. But on the most liberal construction of powers under the charter of the railroad now sought to be exer *315cised, by a lessee which, claims to be a foreign railroad corporation, it seems certain that it cannot exercise them except according to law, and it seems certain that it cannot exercise them in palpable violation of law. Surely it cannot dig through three streets at right angles without calling on the city “to provide precautions” in the work, in the language of § 2974, Code 1892. The city government, with “full jurisdiction” over streets, with exclusive jurisdiction to “regulate the construction and passage of railways through the streets,” with exclusive jurisdiction to grant the power to any “person or corporation” to “use the streets to lay water pipes,” with exclusive jurisdiction to “prescribe the rates” for the sale of water (Code 1892, § 2948), with exclusive jurisdiction to “provide precautions” in the crossing of streets by railways, is entitled to a decree in this cause. The city must be consulted by “any person or corporation,” under Code 1892, § 2933, whether claiming the right under charter or not, before laying water pipes in the street. This is reasonable, and none ought to contend that a charter power may be exercised unreasonably and independently of the prescribed law of supervision as set forth in that section. All those provisions are simply enactments of the common law universally recognized by the authorities and text-books relating to the subject. Franchises are granted by legislatures to their immediate creatures, and cannot be leased to either foreign or domestic corporations except by express authority. In the act authorizing the lease of the Illinois Central Railroad Company (Laws 1882, pp. 1023, 1024, ch. 559, sec. 2) there is absolutely no such authority given as is here claimed. It seems to have been carefully omitted. Under it the “railroad” only may be leased. So well did the great lawyers who represented this foreign corporation understand this that they provided in the very first clause of the four-hundred-years lease itself that the lease was of specified things- — viz., “all and singular the railroad of the party of the first part, extending,” etc. (describing it), “and also the *316lands, gravel pits, rock quarries, rights of way, depot buildings, and depot grounds, station houses and station grounds, water tanks, machine shops, workshops, stationary engines, machinery and fixtures, engine houses, warehouses, offices, and all other buildings, structures, and improvements of any nature and kind whatsoever.” And so well did those lawyers comprehend that they were on a “shaking prairie” that they provided in the second clause of the lease that the Chicago, St. Louis & New Orleans Railroad Company, the immediate lessor, should “maintain its corporate organization and existence by the annual election of directors and officers, and the performance of such other acts as may be required by law for that purpose, and that it will at any time during the said term [four hundred years], when requested by the said party of the second part [the appellee], its successors or assigns, exercise every corporate power, and do every corporate act which the party of the first part [the lessor] can lawfully exercise or do,” etc. So there was no authority in law to lease any franchise, and in fact no franchise, but only specified things, appear in the contract of lease; and there can be no warrant for the bald and palpable fraud here attempted by a foreign corporation on our constitution (secs. 179-190) by the attempted exercise of pretended rights in flagrant violation of law, and never sought to be exercised for fifty years by its predecessors or by any other railroad company on earth at any time. In the exercise of these asserted rights, it may, under the decision in this case, as my brethren must admit, at any time, rip up the vitrified brick pavement in the capital city of the state, and lay water pipes under it, to do what? Not to get necessary water, but to get water cheaper than any inhabitant of Jackson can get it. I respectfully repudiate this, and more especially, if further emphasis were needed, when the record unmistakably shows that this foreign corporation relies absolutely on an agreement with a private corporation of this state, the Canton Cotton Warehouse Company, to enable it to do *317what the warehouse company could not do, and for the execution of which the home company might be dealt with by the city. If illegal in the warehouse company to lay the pipes to furnish the water, the agreement is clearly illegal as to both parties to it. There is no question heré of the rights of abutting owners, to which appellees attempt to confine this case. It is a question of governmental police power, which cannot be bargained away and which “shall never be abridged.” Const., sec. 190. If any right exists in any railroad corporation, which I deny, to commit the inexcusable outrage attempted here by the Illinois Central Railroad Company, it could be claimed only by its lessor, the Chicago, St. Louis & New Orleans Company, which is not even a party to this litigation. This alone is fatal to the claim of the Illinois Central Railroad Company. 19 Am. & Eng. Ency. Law, 899, and note; Englewood v. R. R., 117 Ill., 611 (6 N. E., 684); Dietrichs v. Lincoln, Etc., Co., 13 Neb., 361 (13 N. W., 624); Gottschalk v. Lincoln, Etc., Co., 14 Neb., 389 (15 N. W., 695); Kip v. N. Y., 67 N. Y., 227; 1 Elliot on Railroads, sec. 37; 1 Rorer on Railroads, p. 36. Even “the right to place rails upon a road or street, and use it in the operation of a railroad, can only be granted expressly or by necessary implication, and the use must be reasonable, and such as was clearly contemplated.” 3 Elliot on Railroads, sec. 1076, and the authorities it cites in note 1, p. 1613. In Edmonds v. Baltimore, Etc., 114 U. S., 461 (5 Sup. Ct., 1100; 29 L. ed., 216), it is said: “It is not known to any member of this court that any railroad company has ever claimed to use the streets of an incorporated city, or any part of them, without express authority from some legislative body.” Where is any express authority in this record? Nowhere.
To my mind it is manifest: (1) That the New Orleans, Jackson & Great Northern Railroad Company, if it were now operating this road, could not, under its charter of 1852, containing the clause relied on, do the act sought to be done here, *318Repeating that clause, it reads as follows: “That said company are hereby invested with all rights and powers necessary for the construction, repair, and maintenance of said railroad through this state.” Is it reasonable to suppose thht the legislature, in the language used, even if it were used now at this date, had any contemplation of conferring power to undermine the streets df a city? Water mains for the sale of water were unknown here in 1852. (2) If the power exists, it can only, be exercised when necessary, and it is not necessary under the facts of this case. If not regarded necessary for fifty years, why is it so now? (3) If necessary now, it is still the exercise of a franchise which cannot be availed of by the lessee, and the lessor is not a party. The act of 1882 does not authorize the lease of any franchise. (4) The warehouse company being without power, the railroad company will not be allowed to combine with it to evade the law.
The questions here are very important, and, while railroad corporations are quite useful, and should be fully protected in their charter rights, still, when they begin gross usurpations, they should be promptly restrained by the. strong hand of lawful authority. It is settled law that charters must be construed favorably to the rights of the public, and most strongly against the corporations claiming under them. The authorities seem to be uniform that neither states nor municipalities can strip themselves of their police powers by any contract whatever, because such powers are absolutely essential to the well-being of society, if not the actual existence of the social order. I do not think they should be impaired by a liberal, if not loose, interpretation of the word “necessary” in its collocation in the charter in hand, under the facts disclosed by this record. A fair test is this: If accident and injury occurred because of the trench proposed to be dug, could the city shelter itself from liability in damages under the sections of the charter of the railroad company hereinbefore quoted ? Would any court orig*319inally so hold? I think not. If not, it follows irresistibly that this ease should be reversed.
It seems to me unnecessary to refer to that line of authorities, clearly sound, holding that parts of the streets may, of necessity, be temporarily obstructed by corporations or individuals with building materials, where structures are being erected on private property or-the right of way. The differentiation is too manifest to require pointing out.
The direct violation of the sections of the code referred to is indisputable, in my judgment, and this cannot be argued away, unless on the postulate that a government may contract away its police power, so vital to the people, and that it has in this instance contracted it away through the enactment of a legislature binding on its successors. This position, in reference to police power, is not supported by any precedent.