Opinion of the Court by
Special Judge D. W. Lindsey —
Reversing.
The ease presented by the record is an application by the Louisville Home Telephone Company and John Coleman against the city of Louisville and certain named persons, who constitute the “board of public works”-of said city, for a writ of. mandamus to compel such “board of public works” to.advertise and sell at public sale a certain telephone franchise in said city, claimed to have been provided for, and its advertisement and sale directed to be made by such board, by an ordinance of the general council of said city, alleged to have been duly passed by both boards of the general council of said city, and to have become oblig[614]*614atory without the mayor’s signature on May 26, 1908. The plaintiffs or applicants, as required by sec. 474, Civil Code of Practice, filed a petition stating the cause and ground of the application, to which the defendants or respondents filed general demurrers, and, not waiving the demurrers, also filed answers.
The demurrers to the petition raise primarily the question whether or not the facts stated in that pleading show'a right in the applicants to the writ against the appellees, the members of the “board of public works.” The question may be considered from two aspects, the one as to the right of the appellants, under the facts, to sue for and obtain the writ, and the other as to the liability, so to speak, of the appellees, constituting the board of public works, to the writ. It is contended for the appellants that they are proper applicants for the writ, not only because of their private right in the relief sought, but also because there is involved a public right, and the object is the enforcement of a public duty. Obviously the determination of the questions presented involves the consideration of the nature and purpose of the writ of mandamus, the character of the right of the applicant entitling him to obtain it, and against whom the writ may issue. Mandamus is, by section 477, Civil Code of Practice, thus defined: “The writ of mandamus, as treated of in this chapter, is an order of a court of competent and original jurisdiction, commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law; and is granted on the motion of the party aggrieved, or of the Commonwealth when the public interest is affected.” This statutory definition does not differ materially from those given by the law writers and the courts. Ency. [615]*615P. & P., vol. 13, p. 487; Legg v. Annapolis, 42 Md. 203. In the case just mentioned the court- concisely said: “It is a writ commanding the performance of some act or duty, therein specified, in the performance of which the applicant for the writ is interested, or by the nonperformance of which he is aggrieved or- injured.” It is- evident, then, that there must- be some right which is affected by the performance, or nonperformance, of the act sought to be compelled or restrained; and-, if that right is in the public, and the object is the enforcement of a public duty, the Commonwealth, or the public in some form, should be the applicant for the writ, but if the right to be affected be merely that of a private person, that person must be the applicant, and that the performance, or nonperformance, as the case may be, of the act must be a duty which the law enjoins upon the respondent to the writ.
As to the interest required on the part of an individual to make him a proper party to apply for such writ, there is some conflict in the authorities. In Ency. P. & P., vol. 13, p. 630, the author writes: “In the greater number of States it is held that a private relator applying for a writ of mandamus must show some special interest in himself.” While in the extended note to the case of Dane v. Derby, reported in 89 Am. Dee., the annotator, on page 471, says: “The doctrine supported by the great weight of authority is that, where the relief sought is merely private, the relator must show some special interest in the matter; but, when the question is one of public right, and the object the enforcement of a public duty, he need not show that he has any special interest in the result. It is in that case sufficient for- him to show that he is a citizen, and, as such, interested in the execution of the [616]*616laws (citing authorities). Other courts-hold that the relator must show a special interest in the subject-matter of the proceedings.” And in Ency. P. & P., vol. 13, p. 632, it is said: “In'some instances a distinction has been made between public duties due the State in its sovereign capacity and those public duties affecting all, or a large number, of the citizens. When the duty is of the latter kind, it is held that a private citizen may be the relator in a mandamus proceeding to enforce it” — citing, among other authorities, the case of Union Pac. R. Co. v. Hall, 91 U. S. 343, 23 L. Ed. 428. In the case last mentioned the Supreme Court wrote: “There is, we think, a decided preponderance of American authority in favor of the doctrine that private persons may move for a mandamus to enforce a public duty, not due to the government as such, without the intervention of the government law officer.” .It is, we think, definitely settled by the decisions of this court that, though the public interest may be affected, and it may be the duty of the Commonwealth or the public, through some of its agencies, to act in the matter, yet, a private person, who can show direct and special interest in himself, may apply for and obtain a writ of mandamus. Hammar v. City of Covington, 60 Ky. (3 Metc.) 494; Trustees of Catlettsburg v. Kinner, 76 Ky. (13 Bush) 334; Register Newspaper Co. v. Yeiser, 117 Ky. 1013, 80 S. W. 478, 25 Ky. Law Rep. 2186; Merchants’ Police, etc., Co. v. Citizens’ Tel. Co., 123 Ky. 90, 93 S. W. 642, 29 Ky. Law Rep. 512.
As to the character of right entitling an applicant to- the writ of mandamus, the authorities are to the effect that it must be a clear, complete, and existing legal right. Ency. P. & P., vol. 13, pp. 496, 497; Cyc., vol. 26, pp. 151, 153, 154. Or in the language of this [617]*617court: “Mandamus can not be maintained unless there is a legal right in the appellant, and a corresponding duty imposed by law on the appellee.” Lowe v. Phelps, Judge, 77 Ky. (14 Bush) 647. When it is considered that the public rights and duties enforceable by mandamus are of such great variety, and that the measure of the interest of a private individual therein to entitle him to invoke that remedy must, of necessity, largely depend upon the nature of the right or duty sought to be enforced in each particular case, it is readily seen why the authorities have not, and possibly can not, lay down any general rule as to what constitutes an interest sufficient to entitle a private individual to institute mandamus proceedings to enforce a public right or compel the performance of- a public duty.
In each of the cases of Catlettsburg v. Kinher and Hammar v. Covington, supra, the effect of the holding, in an opinion by Lindsay, Chief Justice, was that abutting property holders on a public street, by reason of their peculiar and particular right in the use of the street as a means of ingress and egress to and from their properties, and the apparent danger to their properties, distinguishable from the right in the general public to the use of the street as a highway, had such direct and special interest as entitled them to a writ of mandamus to compel the preservation and repair of the- street by those upon whom the law placed that public duty.
The case of Register Newspaper Co. v. Yeiser, supra, cited in the brief of counsel, was where the newspaper company was, by due selection and appointment, the official newspaper of the city of Paducah, and as such was required and entitled to publish, at its regular rates for advertising, all ordinances, reso[618]*618lutions, notices, etc., which, under the charter or ordinances of the city, were required to- he published'. There were certain delinquent tax lists, which the law required should be sold at public auction, the lists and the notice for the sale thereof to be published for at least two weeks in the city’s official newspaper. The city official charged with the duty of furnishing such lists and notice for publication failed and refused to do so. This court held that the Regi-ster Newspaper Company could, by mandamus, compel the city’s official whose duty it was- to furnish the- delinquent tax lists and' notice of sale for publication. Thereby, in effect, holding that the newspaper company had direct and special interest in having for publication and advertisement the delinquent tax lists and the notice; such interest being clearly its legal right to advertise the lists and the notice for their sale, and to receive therefor pay at its regular, rates for advertising.
The case of the Merchants’ Police & Telegraph Company v. Citizens’ Telephone Company, supra, was where the-appellee had a telephone franchise, obtained from the city in accordance with the provisions of section 164 -of' the Constitution, and appellants did' not purchase a telephone franchise as provided by that section of the Constitution,, but was operating its telephone plant in the city without authority of law, under an attempted grant to it by the city council, which, being void, conferred no right whatever-. This court held that the appellee, as a citizen and taxpayer-of the city, had the right-by action to put an end to the wrong so perpetrated by the council, by stopping appellant from further acting under the illegal grant. Why? The court in the opinion gives the answer. The appellee was interested, as was each and every other taxpayer, in preventing l'oss to the city by the illegal gift [619]*619of a valuable franchise, which, if sold, would increase the city’s revenues and thereby lessen the amount necessary to be raised by taxation.
The relation of private individuals to common or public nuisances may be referred to as analogous to the question being considered. This court has repeatedly held that private individuals can enjoin, or sue to recover, damages for an act constituting a common or public nuisance when they show that they will receive, or have received, injury distinct from that suffered by the public. Gleason v. Schneider, 7 Ky. Law Rep. 834; Maysville & Mt. Sterling T. P. Co. v. Ratcliff, 85 Ky. 244, 8 Ky. L. R. 933, 3 S. W. 148; Beckham, etc., v. Brown, etc., 40 S. W. 684, 19 Ky. L. R. 519. The rule deducible from these and kindred cases from this court, and sustained, we think, by the weight of authority at large, is that the “direct and special interest” of a private individual, which would entitle him to apply in his own behalf for and obtain a writ of mandamus to enforce his private right, must be independent of and distinguishable from that which obtains to him in common with the general public or to the mass of the community; though it may not be necessary that such particular interest should be different in kind from that of the general public, or peculiar to the individual alone.
In the case here in hand the “cause and ground” of the application are the averments, in substance, as follows: That each of the applicants is the owner of real and personal property in the city, a taxpayer to the city, and engaged in business therein; that the applicant John Coleman is a citizen and resident of the city, and the applicant the Louisville Home Telephone Company is the owner and operator of a telephone plant in said city; that the ordinance exhibited was [620]*620duly passed, etc., and became obligatory without the signature of the mayor; that by the terms of such ordinance it is made the duty of the -“board of public works” of the city of Louisville to advertise and sell the franchise (in the ordinance provided) for the acquisition and operation of a telephone system in the city; that the applicants have demanded of the defendants, named as the board of public works of the city, “to proceed with the advertisement of sale, and with the sale, and have also demanded of the city, through its chief executive officer, the mayor thereof, to cause said advertisement to be made, but said defendants have refused thus to proceed, and have announced that they do not intend to advertise or sell said franchise;” and that “plaintiff the Louisville Home Telephone Company has a special interest in the sale of said franchise, because it expects and intends to become a bidder for said franchise, when sold by the ‘board of public works,’ and hopes to become, and believes it will become, the purchaser thereof, and it desires to have the opportunity of thus acquiring the franchise for the operation of a telephone plant in thé city of Louisville, in accordance with the terms set forth in the ordinance.” Under the rule above stated, do these, the only facts alleged as the “cause and' ground” of their application, show any “direct and special interest” in appellants, separate and apart from the general public, in having the telephone franchises contemplated by the ordinance advertised and sold? It is insisted by counsel in argument that they do, because it is alleged that the applicants each are taxpayers to the city, and cite as authority for the contention the cases, above referred to, of Register Newspaper Co. v. Yeiser, and Merchants’ Police & Telegraph Co. v. Citizens’ Telephone Co. In the first-[621]*621mentioned of these eases-there was no claim of right because the newspaper company was a taxpayer, or a citizen of, or engaged in business in, the city; but, as stated above, the “direct and special interest” of that company was by reason of its contract right to do the advertising and receive the compensation therefor. In the other case this court held that the party applicant, a taxpayer, was directly interested to prevent loss to the city by an illegal gift of a valuable franchise, which, if sold legally, would increase the city’s revenue, and thereby lessen the amount necessary to be raised by taxation.
Here, in the pleading being considered, no averment is made as to how, or fact stated by which, it is made to appear that appellants’ property or other legal right, or the property or revenue of the city, are injuriously affected by the failure and refusal of the appellees, constituting the board of public works, to advertise and sell the franchise. It is not even alleged that the sale of the franchise would be of pecuniary benefit to the city. It may be argued that, if the franchise- be sold, to the extent of the purchase price it brings, the revenues of the city would of necessity be increased, and that thus, under the authority of the case of Merchants’ Police & Telegraph Company v. Citizens’ Telephone Company, the “definite and special interest” of appellants as taxpayers is manifest. But is it true, or is it correct to assume, that by the sale of this franchise, under the terms of the ordinance exhibited, the revenues of the city would of necessity be increased? It appears from the application, and the ordinance exhibited and made part thereof, that the applicant the Louisville Home Telephone Company is now conducting a telephone plant under a franchise purchased from the city, which franchise [622]*622has yet some years to run, and under the terms of this ordinance, if it becomes the successful bidder for the franchise-, the sale of which is now sought to be compelled. then, the former franchise is to be void, and all obligations to the city thereunder be also void. And the averment in the pleading being* considered is that it, the Louisville. Home* Telephone- Company, “expects and intends to become a. bidder for said franchise. * ■ * * and hopes to become, and: believes it will become the- purchaser thereof. ’ ’ Such being the situation, it will readily be seen, that it is altogether problematical as to the effect the proposed sale of the franchise, if consummated, would have upon the revenues of the city. But the pecuniary advantage is not the only, or the most important consideration in matters like those here Under consideration. Efficient. and reliable sendee, at reasonable rates, is far more important, and is the direct object to be obtained rather than the mere purchase price. VTe do not think that the appellants have by their pleading shown in themselves such private right as entitled them to obtain the writ in this case.
However as has been stated, the appellants contend that, even, if they have not the requisite mere private right, to entitle them to the writ sought in this proceeding. they, being citizens and residents of, and engaged in business in. the city, and as such interested in the execution of the law, have the right as relators to bring the matter before the court. Clearly the ordinance exhibited with the petition imposes upon the board1 of public works- of the city of Louisville the duty of advertising and selling at public sale the telephone franchise in the ordinance provided. In this day efficient telephone service is so essential not only in the conduct of private business in the cities, as well [623]*623as in the rural districts, but is also so important in the management and conduct of the business and government of cities, that its proper installation and maintenance and service constitute a matter of decided public interest. The question in this case is therefore one of public right, and the object is the enforcement of public duty. And, as we have seen from the authorities quoted supra, in such state of case a relator in a mandamus proceeding need not show that ' he has any special interest in the result, but it is sufficient for him to show that he is a citizen and resident, and engaged in business in the city, and as such interested in the execution of the law, and that, inasmuch as the public duty here sought to be enforced is not one due to the State in its sovereign capacity, the decided preponderance of American authority is that private persons may move for a mandamus to enforce such public duty. 13 Enc. P. & P. 632; Union Pac. R. Co. v. Hall, 91 U. S. 343, 23 L. Ed. 428; State v. Weld, 39 Minn. 426, 40 N. W. 561; Chicago, etc., R. Co. v. Suffern, 129 Ill. 274, 21 N. E. 824. It is true that the Code provision is that the writ of mandamus is granted on the motion of the Commonwealth when the public interest is affected. And it is usual for the Commonwealth or the public to take action in such matters through its selected officer. But there is no such limitation in the statute. And in the present case the fact that the officer, whose duty it is usually to enforce the public’s rights in the city, and represent the same in the courts, is, in the performance of his official functions as adviser of the city officials, and with unquestioned good faith upon his part, placed in the adverse position of attorney for the respondents in this application, raises the question, Does the failure or refusal [624]*624of the city attorney, or other representative of the Commonwealth, to seek the enforcement of this public duty preclude its enforcement?
The facts in the case of People ex rel. Ayres v. State Auditors, 42 Mich. 428-430, 4 N. "W. 274, were, in many respects, similar to the case at bar. There a State statute, it was contended, imposed upon the State Auditors the duty of advertising for and receiving proposals for printing the decisions of the supreme court of that State. The auditors thought the statute not operative at the time. The relator was, by reason of his being engaged in the business of printing, etc., a competent bidder, and desired to become a bidder for the printing and publishing pf the reports. It being claimed by the respondents that if they had done any wrong they were guilty of a public wrong, and not a private wrong, and that only the representative of the State could complain of their misconduct, the question arose whether the court would allow a private relator to complain of the alleged,, omission of duty. The court said in part: “In the present case the officer whose duty it usually is to enforce the rights of the State .in this court, in the performance of his official functions as adviser of the State officers, placed himself in an adverse position, and appears for the respondents on this application. Inasmuch, then, as the Attorney General refuses to appear and seek the enforcement of the statutory provision, does his refusal preclude its enforcement? And if not, is the relator authorized to bring the matter before this court? There may perhaps be others who have interests that would justify their appearance, but there is no one else whose duty it is to appear where the Attorney General declines to do so. It can not be said that relator has any greater legal interest [625]*625than other citizens, if the application roust be made by an interested party. But if any party not actually ' interested may become relator or reformer, then the fact that he is engaged in business which would make him a competent bidder, and that he desires to become a bidder if the interest is set up for competition, removes him from the position of an officious interloper, and gives sufficient assurance that the controversy is genuine and in good faith. The rule which rejects the intervention of private complainants against public grievances is one of 'discretion, and not of law. There are serious objections against allowing mere interlopers to meddle with the affairs of the State, and it is not usually allowed, unless under circumstances where the public injury by its refusal will be serious. In the eases of People ex rel. Drake v. Regents of the University, 4 Mich. 98, and People ex rel. Russell v. Inspectors of the State Prison, Id., 187, the court took pains to guard against any decision that would prevent complaint by a private relator where the public interests require prompt action, and where the public prosecutors will not interfere. There is, as there shown, more liberality in some States than in others. But we find no reason to consider the matter as one lying outside of judicial discretion, which is always involved in mandamus cases concerning the relief as well as other questions.”
It may be urged- that, even if the appellants are proper relators to institute this proceeding for the public, they should, under-the statute, have proceeded in the name of the Commonwealth, as the representatives of the public by them as relators — a form of procedure used in the case- last above quoted from. That is a matter of procedure only, objection-to which was not made by special demurrer in the- court below, [626]*626where, if deemed Necessary, it might have been changed by amendment; and the point should no,t be regarded in this court. And it seems that in the case of Union Pac. R. Co. v. Hall, supra, which had the sanction of the Supreme Court, the form of procedure adopted in. this case was used. Concurring in the rule announced by the authorities above cited, this court is of the opinion that the appellants are proper relators in behalf of the public, to apply for the writ of mandamus sought in this case. The enactment of an ordinance of the character of the one presented here was clearly within the province and power of the general council of the city. It was for that body in its discretion to determine, and in such form to promulgate, whether it would sell the franchise, and the terms upon which it should be sold; and it was entirely proper for it, in the ordinance, to charge the board of public works, the city’s executive board having charge of and supervision of the use made of the streets and public ways of the city, over which and through which the franchise would have to be exercised, with the duty of advertising and making the public sale as directed.
In considering the demurrer to the petition, it remains to be seen if the ordinance contravenes the Constitution in the particulars suggested in argument. It is contended for the appellees that the ordinance is in violation of section 52 of the Constitution, which reads: “The' General Assembly shall have no power to release, extinguish or authorize the release or extinguishing in whole or in part the indebtedness or liability of any corporation or individual to the commonwealth, or to any countyjor muniepality thereof.’’ The proposition advanced by appellees’ counsel is that the- published ordinances of the city — of which this court must take notice — show that the appellant tele[627]*627phone company is now operating in the city under a franchise legally obtained, by the terms of which the company is required to pay annually to the city the sum of $.1 for every telephone service or instrument in excess of 6,000, and to furnish telephone service at certain stipulated rates. And this, it is argued, constitutes a contract liability, from the company to the city, which the latter is powerless, under the section of the Constitution quoted, to release, that by the terms of the ordinance here involved the appellant telephone company is permitted to become a bidder for the franchise to be sold, and expects to become the successful bidder therefor, and in the event that it does become the purchaser of the present franchise, under which it is now operating, is to “become null and void, and be forfeited and surrendered to the city of Louisville, and all obligations created by the ordinance granting the same, or acceptance thereof, shall immediately cease and determine,” and that by this ordinance the telephone rates are materially increased, which will, it is claimed, operate to release a liability from the telephone company to the city. It does not appear from the petition that the company is indebted to the city at present in any amount, or that the company has installed any telephone service or instruments in excess of the 6,000. But it is stated in the brief of counsel, as alleged in the answer, that under that provision in the franchise now being operated under, the city is receiving annually over $2,000, and the franchise'has over 30 years to run. It is also contended that the ordinance here involved contravenes section 164 of the Constitution, The ground of this contention is not made plain, further than it is argued that,-because the Bell system of companies, of which the Cumberland Telephone & Telegraph Company, now legally operat[628]*628ing in the city, is a constituent member, is excluded as a competitive bidder, a sale of the franchise under the ordinance will not be a public sale within the meaning of the section of the Constitution indicated.
In considering these two propositions it may, we think, be proper to view the relation of a municipality to public utilities such as water, light, and telephone service. Because of their potency and usefulness in promoting and preserving the health, security, and comfort of the public, and of the aid they afford in the conduct of the business and administration of the municipality itself, such utilities have long been regarded as essential governmental agencies and important aids to the police power. A municipality has the power and right to erect, maintain, and operate plants, and use the public streets for furnishing such utilities for the municipality itself and to its inhabitants. Such power or duty it may discharge by having others perform them for it upon such terms as may be agreed upon in the form and manner prescribed by law. What, therefore, is commonly termed the “granting” of a franchise by á city for one of these public utilities is in the nature of a contract by the city with the grantee for the performance of a public service; Such, in part at least, seems to have been the view of this court in the opinion in the case of Cumberland T. & T. Co. v. City of Hickman, decided June 10, 1908, 129 Ky. 220, 33 Ky. Law Rep. 730, 111 S. W. 311, wherein the court, in speaking of a telephone franchise, said: “This right which is most akin to a right of. way, is the subject of grant, which partakes, in turn, of the nature of a contract.” Prom this view of the subject it will readily be seen that the primary object a city would have, in contracting for or procuring the service of such utilities, is not the revenue to be [629]*629obtained for the city, bnt the securing of good and efficient service, and upon such terms as will, in the judgment of the city’s governing body, promote the greatest good, not alone to those who use the utility,, the telephone for instance, but to the entire community, including the city government. For obtaining the end just mentioned, the value of competition in such service to the public is not only recognized, but is emphasized, by this court in Stites v. Norton, 101 S. W. 1189, 125 Ky. 672, 31 Ky. Law Rep. 263, 13 L. R. A. (N. S.) 474, where it was held that it was' the duty of the city to establish a competing plant. In that case, as in this, the owner of a then existing franchise was eliminated as a bidder at the proposed sale. This court then said: “This duty was of equal dignity, and as binding upon it (the city) as that of selling the franchise to the highest and-best bidder, and it had the right, in our opinion, to so frame the ordinance as to accomplish the purpose of obtaining a competing plant.” And again, further on: “Section 164, as construed, is but a part of the general scheme of the Constitution to prohibit and break up monopolies. ’ ’ And we may say in this case that to make competition effective, and in such form preserve it, is as much a duty as to establish it. And as such seems to- be the plain purpose in this ordinance, we do not think the ordinance is repugnant to section 164 of the Constitution.
The relation between the city and the appellant telephone company being, as we have seen, quasi contractual and for the performance of a service, can-it be said that section 52 of the Constitution, above quoted, prevents the city, with the consent of the company, from so modifying the terms for such service' as will, in the judgment of the city’s governing body, permit [630]*630and secure effective service in competition with the Cumberland Telephone & Telegraph Company? "We do not think so. This section of the Constitution was before this court for construction in the cases of City of Louisville v. Louisville Ry., 111 Ky. 19, 63 S W. 14, 23 Ky. Law Rep. 390, 98 Am. St. Rep. 387; Commonwealth v. Tilton, 111 Ky. 342, 63 S. W. 602, 23 Ky. Law Rep. 53, and Nat. Bank of Lebanon v. Commonwealth, 118 Ky. 51, 80 S. W. 479, 81 S. W. 686, 25 Ky. Law B. 2254. There the liabilities attempted to be compromised or released were fixefl demands; that in the first mentioned case being for taxes, fixed by the regular assessment of the property, and in the hands of the collecting officer. The court held that the section of the Constitution forbade a compromise of such fixed moneyed liabilities due to a city, county, or the State. But in the first mentioned of those cases this court expressly said: “We do not mean to hold that an unlimited (unliquidated) demand, by or against the city, can not be compromised, but we think that, when the liability to the city is fixed, it can not be relinquished in whole or in part.” As said by counsel in the brief, the right of the State, and of its political subdivisions, to exercise the right to contract, and to modify or change the contractual relation with the consent of the other contracting party, is an important one, and should not be limited. “That it may be abused is no argument against its existence. It was the exercise of this power which was upheld by this court in the case of Cumberland T. & T. Co. v. City of Hickman,” supra. An examination of the procedings had in the constitutional convention, as shown by the published debates (volume 3, pp. 3896, 4313; volume 4, pp. 5564, 5686, 5687), resulting in the adoption of the section as it now reads, discloses that section 52, [631]*631as originally drafted and proposed, inhibited the release or extinguishment, in whole or in part, of “the contract, indebtedness, liability, or obligation, of any corporation or individual to the State, or to any county or municipality thereof.” Subsequently, on revision, the words “contract” and “obligation” were stricken out, by which the restriction of the power of release or extinguishment was limited to “the indebtedness or liability of any corporation or individual” to the State, or county, or municipality. And in that form the section was adopted and is now in forces
Aside from the conviction that is impressed upon the mind by the elimination of the words “contract” and “obligation” from the section, that there was no purpose by the language left remaining to limit or restrict the right of the State, the counties, or the cities thereof in the power and right to contract is negatived by the intent declared at the time, when in the debates the reason for the change is given in this language: “We did not think it was proper to say that the Legislature should not have the power to release a person from a contract, provided both the Legislature and the other party desired to be released from it. Our intention was to provide that they should not be released from liabilities incurred, whether by contract or subsidy; but we do not believe that, if one Legislature should make an unwise contract, and the people see it was unwise, and that the next Legislature, both the people, through their representatives, and the party with whom the contract was made, desired to be released, it should not be done. In other words, we do not want to get in the fix that they are in Tennessee. They made a contract, and now both sides are willing to do away with its con[632]*632tract, and yet they cannot.” And with that declaration of its purpose, the section was adopted.
As.the judgment of the court below was based entirely upon-its idea of the insufficiency of the petition, this court has only considered the questions arising upon the demurrer to the petition.
For the reasons stated, we are of the opinion that the court below erred in sustaining appellee’s demurrers to the petition, and in dismissing appellants’ petition. The judgment' appealed .from is reversed and remanded for further proceedings consistent with this opinion.
Special Judges Edelen and Lindsey sat m lieu of Chief Justice O’Rear and Judge Lassing, declining to sit. Hobson, Nunn, and Carroll, JJ., dissent in part.