I concur in the result announced in this case. But as I do not fully agree with the position or contention of counsel on either side of the case, or with all that is said in the opinion rendered herein, I deem it proper to briefly express my reasons for so doing.
It is not my purpose, at this time, to discuss, at length, the many and important legal and constitutional questions that have been so ably argued by counsel in this case. The argument has taken a very wide range, and ha,s covered many points, concerning which this court has not, heretofore, been able to agree or to formulate any fixed, general rules which could solve all the cases that have arisen or that may hereafter arise.
In brief, the relator contends that Kansas City has express power, under her charter, to regulate and fix the prices that may be charged for telephone service within the corporate limits of the city; that if such is *104not the case, then the Enabling Act has conferred that power upon the city; that under section 16 of article 9 of the Constitution, Kansas City was authorized to adopt a charter which would regulate all matters of mere local concern as distinguished from matters of State concern, and that the General Assembly of the State has no power, even by a general law, to change such local regulations so adopted by the city; that even as to matters which are not properly local but as to which the State has a concern, Kansas City has the power, under its charter, to adopt regulations or enact laws that will be legal and binding, as to all subjects upon which the General Assembly of the State has not spoken, but that thereafter, the General Assembly has power, by general laws, to change such regulations.
It is not necessary, herein, to state the various contentions of the defendant.
I think that it is extremely unfortunate that this court ever attempted to solve the problem by drawing a distinction between matters of mere local concern and matters of State concern, and to say that as to matters of mere local concern the municipality has power to legislate. To my mind no fixed, certain, general or intelligible rule can be formulated upon such a distinction, which will answer or solve the questions that will arise. There are many matters which are, in a sense, local, but in which the State, at large, has also a direct interest. So that the attempted distinction would necessarily fail when applied to such matters. I think experience has now conclusively shown the necessity for this court to adopt some rule of construction which will solve all such questions. I am firmly convinced that there is but one safe ground upon which the courts can rest the rule, and that is to hold, first, that it is within the power of the General Assembly to delegate to a municipality a portion of the State’s police power, under which it will be competent for the city to enact police regulations, that is, such regulations as affect the *105citizens in respect to their relations to the municipality, and in their conduct towards each other, hut that such police regulations can only be enforced by fine or imprisonment; second, that it is competent for the State to confer upon a municipality the right to enact regulations, laws, or ordinances that are purely municipal, that is, such as regulate the governmental or business affairs of the city, and of the citizens in their conduct towards the city, or such as regulate the conduct of municipal officers, and the like'; third, that, under the Constitution of this State, and the decisions of this court, it is not competent for the Legislature to delegate to a municipality any portion of the legislative power of the State, by which I mean, the power to make laws, to confer civil rights, to create civil liabilities, to provide civil remedies, to punish by civil action any acts of commission, or omission of duty, or to create any civil right of action between citizens inter sese.
I am thoroughly persuaded that it never was within the contemplation of the framers of our system of government, or of our Constitution, that any city, whether organized under the general laws of this State, or under the provisions of the Constitution which allow cities to fíame their own charter, to confer upon cities anything more than a police power, and a strictly municipal power. And that the power to enact all laws of civil conduct, and to prescribe all civil remedies among citizens, in short, to enact laws as distinguished from municipal regulations, is expressly reserved to the Legislature of this State, and cannot be delegated by it.
In my judgment the whole subject would be simplified, and a plain rule of interpretation afforded, by adopting such a distinction between the powers of a city and the powers of the General Assembly of the State.
I, therefore, have reached the conclusion that it is no part of a municipal power to regulate the prices *106that may be charged for telephone service, any more than it is to regulate the prices that may be charged for any quasi-public service, or for the sale of the necessaries of life. All such matters fall within the domain of legislative powers. Hence, I therefore think that Kansas City could not, by its charter, take unto itself the power claimed in this case, and that it was incompetent for the General Assembly to delegate such power to Kansas City. At first I was of opinion that, as the defendant is organized under article 6 of chapter 12 of the Revised Statutes 1899, and as that article conferred upon the defendant the right to do telephone business, “and to make such reasonable charges for use of the same as they may establish,” it was within the power of the court to determine whether the charges established by the defendant were, or were not, reasonable, and that the question could be determined in a proceeding by mandamus. It is argued, however, that the power to fix such charges is' a legislative power, which can only be exercised by the General Assembly, and that the court has no power to fix the same.
Upon further reflection I have come to the conclusion that the true construction of the provisions of the article quoted is, that the defendant may fix such reasonable charges as it sees fit, subject, however, to the right of the General Assembly, by general law, to fix such reasonable charges, and that the power of the court is limited to determining, in a proper case, whether the charges fixed, either by the company, or by the Legislature, are reasonable charges, and that such question cannot be decided in a proceeding by mandamus. I believe that the statute does not confer upon the defendant an absolute right to determine what shall be a reasonable charge, and I also believe that even the Legislature cannot arbitrarily and oppressively fix a charge that will amount to a deprivation of the privileges and franchises conferred by law upon the defendant company. The Gen*107eral Assembly, it is true, might repeal the whole act in relation to telephone companies, -and leave the subject without legislative regulation, but as long as the Legislature permits a company to engage in such business it is beyond the power of the Legislature to fix the charges it may make at a sum which would be destructive to its business. The power to regulate does not mean the power to destroy. Under the guise of regulation, it is incompetent for the Legislature to destroy franchises which are authorized by law, or to so lay down the manner of transacting a legitimate business as to make it impossible to conduct such business except at a loss.
I shall not attempt, now, to indicate in what man-ner or form of proceeding the right of the court to construe or determine the reasonableness of the charge, whether established by the defendant or by legislative act, can or must arise. . I shall content myself, now, with saying that I don’t think the question can be properly raised in a proceeding by mandamus.
The foregoing sufficiently indicates my reason for concurring in the result, only, in this case.