State v. Murphy, etc. tion was provided for. Section 6 requires the corporation to furnish, in addition to other taxes assessed by law, and maintain at its own expense, all the wires of the fire and police alarm and telephone service of the city of St. Louis, free of charge to the city. Section 7 makes the corporation subject to ordinances of the city now in force, or that may hereafter be passed, in relation to making excavations in streets. Section 8 nullified the ordinance unless a bond for $25,000, with approved security, should be filed in 90 days, conditioned for the faithful observance of the ordinance. The ordinance was also made null, unless work was commenced in 60 days. Section 8 declares a forfeiture for violation of the conditions and provisions of the ordinance. Section 10 gives the city the right to purchase the property at the end of the term granted. On February 6, 1891, Ordinance No. 15,953 was passed, entitled "An ordinance amendatory of Ordinance No. 14,798 of the city of St. Louis, entitled 'An ordinance to provide for laying electric wires underground.' This ordinance strikes out sections 6 and 10 of Ordinance 14,798, and substitutes for sections 1, 4 and 5 three other sections. The only material change made by section 1 is to extend the duration of the franchises to 50 years, and to grant the right to distribute and maintain, "electric, telegraph, telephone and other wires." No material change was made in section 4. Section 5, as amended, besides declaring said company, its successors and assigns, a common carrier, requires a payment to the city for the rights and franchises granted semi-annually in advance of the sum of $500. No provision is left for the use of wires by the city, or the right of any other company or person to use them. Said National Subway Company was incorporated January 28, 1889, under the act providing for the incorporation of telegraph and telephone companies, now article 5, c. 42, Rev. St. 1889, with a capital stock of $250,000, divided into 25,000 shares of $10 each. The purposes of State v. Murphy, etc. the incorporation, as declared in the articles of association, are to construct, own, operate, and maintain a line of underground magnetic telegraph in the city of St. Louis. On the 5th of February, 1889, the board of directors sold and assigned all the rights and franchises granted by said ordinance to Charles Sutter, for the consideration of $100. On the 25th of February, 1889, the St. Louis Subway Company was incorporated under article 8, c. 21, Rev. St. 1879, as a private business corporation, with a capital stock of $500,000, divided into 50,000 shares of $10 each, which was alleged to have been actually paid up in lawful money of the United States. Of this stock the said Charles Sutter subscribed for 49,800 shares. The purposes of this corporation, as declared in the articles, were: "To lay out and maintain, construct and operate, lines of subway in this State for the purpose of carrying wires for the transmission of electricity and electric currents, and in and about said business to acquire and hold such property, both real and personal, as may be requisite and necessary in the premises; to make all necessary leases, contracts and other agreements as may be required to carry out the purposes of the company." On February 28, 1889, this corporation was organized and purchased from Charles Sutter the rights and franchises granted under said ordinances, for which it agreed to pay $498,000. Mr. Sutter accepted 49,800 shares of fully paid up stock in satisfaction of the purchase price. The other shareholders, except one who subscribed for 25 shares, paid up their stock by services rendered. From June, 1889, to the end of that year, the St. Louis Subway Company obtained permits upon plans approved by the board of public improvements, and caused a line of subways to be constructed, about 1 1-6 miles in length, as follows: On Broadway, from Elm street to St. Charles; on Market street, from Broadway to Tenth; on Tenth street, from Market to Chestnut; and on Chestnut street, from Tenth to Fourteenth streets. The State v. Murphy, etc. subways occupy a space in the street about six feet deep and three feet wide, with manholes about five to six feet in diameter at each street crossing, and at other points where obstructions are to be passed. From 1889 to 1894 nothing was done in the way of building conduits. On the 10th day of May, 1890, John B. O'Mera obtained judgment against the St. Louis Subway Company in the St. Louis Circuit Court for $8,869.23, for work done on the subways above mentioned, and on the 10th day of June, 1890, Emile A. Meysenburg obtained a judgment against it in the same court for $42,911.22, on account of work, material and money applied to the construction of said subways. Upon these judgments executions were issued, and the sheriff seized all the right, title and interest of the St. Louis Subway Company in and to the franchise acquired by it under Ordinance 14,798, and all its title in and to the subways above mentioned, and all pipes, mains, iron, etc., belonging to said company, and on July 21, 1890, sold the same to Emile A. Mysenburg for the sum of $1,000, to whom the sheriff executed a deed as for the sale of real estate. Alias executions were issued on said judgments, and the same property seized and sold under them, as personal property, on January 7, 1891, at which sale Emile A. Meysenburg was again the purchaser at the sum of $500, and for which he received a bill of sale from the sheriff. The relator, the St. Louis Underground Service Company, was incorporated February 26, 1891, as a private business corporation, under article 8, c. 42, Rev. St. 1889, with a named capital stock of $1,000,000, divided into 10,000 shares of $100 each, which is alleged to have been fully paid in lawful money. The stock was subscribed as follows: Emile A. Meysenburg, 9,000 shares; Robert McLaren, 250; Benjamin Von Puhl, 250; Andrew J. Cooper, 250; and Charles Sutter, 250 shares. The purposes for which this company was organized "are to lay State v. Murphy, etc. out and maintain, contruct and operate, lines of subway in this State for the purposes of carrying wires for the transmission of electricity and electric currents; also to lay out, construct, and maintain and operate, lines of pipes, mains and conductors in this State for the purpose of distributing substances, either for fuel or illuminating purposes, or for both, and for said purposes to acquire and hold such property, both real and personal, as may be requisite and necessary in the premises, to make all necessary leases, contracts and other agreements, as may be required to carry out the purposes of the company." Emile A. Meysenburg, on March 10, 1891, for the expressed consideration of $900,000, by bill of sale, transferred to the St. Louis Underground Service Company, all the property and rights he acquired by purchase at the sheriff's sales above mentioned. By this transfer he paid his subscription for the 9,000 shares of stock subscribed by him. From this time, March 10, 1891, until the summer of 1894, the St. Louis Underground Service Company did nothing in the way of building conduits. In May, 1894, relator made application for and received a permit to lay, and laid, a subway 180 feet in length, on Olive street, from Broadway east to an alley at the middle of the block, and south on said alley to a point opposite the operating room of the Postal Telegraph Company, in the Laclede Building; and on August 20th, it obtained a permit and constructed a subway on Fourteenth street, from Chestnut to the alley in the middle of the block, and about 16 feet into the alley, to a telegraph pole, about 165 feet in length. In November, 1894, the relator made application in due form to respondent, as street commissioner, for permit to construct conduits on Chestnut street. The plans had previously been submitted to and approved by the board of public improvement. Respondent refused to grant the permit. This proceeding is by mandamus to require the respondent, as street commissioner, to grant the permit. State v. Murphy, etc. A writ was issued and respondent has made return thereto, to which relator demurred. From the pleadings and the evidence taken the foregoing facts are deduced. While the legal questions involved are raised by demurrer to the return, the entire case was presented by oral argument and brief of counsel, and we will consider the merits of the case without regard to the form in which it has been presented. 1. A number of questions were discussed by counsel, both in argument and brief, but the most important, and, as we think, the controlling one, is whether the city of St. Louis had the power to grant to the National Subway Company the franchises now claimed by relator. If it had no such power, and is not estopped by what it has done in affirmance of its grant, the controversy necessarily ends, and consideration of other questions will be unnecessary. Municipal as well as other corporations derive their power from the Legislature, and can exercise none not confided to them. To the charter of the city of St. Louis, then, we must look for authority to make the contract in question. State v. Clark, 54 Mo. 35. The charter undoubtedly vests in the city large power and control over the streets and other public property within its limits. It has power to establish, open and vacate all streets, public grounds and squares, and regulate the use thereof; to lease portions of the unimproved wharf; to license, tax and regulate telegraph companies and street railroad cars; to have sole power and authority to grant to persons or corporations the right to construct railways in the city; and, finally, to pass all such ordinances, not inconsistent with the provisions of the charter or the laws of the State as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures. Charter, Rev. St. 1889, pp. 2085, 2100. The power to regulate the use of streets is very comprehensive. "The word 'regulate' is one of broad import. It |