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clusive privilege of occupying the streets with railroads; it has not in terms given to it the right to contract away its continuous control of the streets, and its future judgment of the needs of the public in those streets, by a surrender of their occupation for railroad purposes to individuals for a series of years. Indeed, it has not in terms made any specific grant in respect to the occupation of streets by railroads, and their operation thereon. Upon what, then, can it be claimed that the city has the power to give to an individual, the right to occupy the streets with railroads, secure him that right for a term of years and also the right of debarring, during such term, every other citizen from a like use of the streets. It was held in the Atchison case [Atchison St. Ry. Co. v. Mo. Pac. Ry. Co., 31 Kan. 660; s. c., 3 Pac. Rep. 284], that the city might permit a street railroad, and this because the legislature had granted to it a general control and supervision of the streets. In this the current of opinion and authority was followed. Under such power the city may permit any ordinary use of a street as a street. A street railroad comes within the ordinary scope of such use. But power to permit one citizen to use the streets in a given way is a very different thing from power to give such citizen the right to keep every other citizen from a like use of the streets. The one is a mere street regulation-a license; the other rises into the dignity of a contract- — a franchise. The one may rest upon the ordinary powers of street management and control, the other requires the support of a special grant. Doubtless, the city. may practically secure exclusive occupation to one, and withholding

permission from all others, the occupation of that one becomes for the time being, exclusive. But this is an altogether different matter. In the one case, the exclusiveness depends on the continuous will of the city; in the other upon that of the individual company. In the one the full and constant control of the streets is retained; in the other it is partially transferred to the other company. Again, exclusiveness of occupation is not necessary to the full performance of a street railroad company of all its functions. The running of a street railroad on one street is in no manner interfered with by the running of a similar road on a parallel street. Doubtless the profits of the one will be increased if the other is stopped. Monopoly implies increase of profits. But the question of profits is very different from that of the unimpeded facilities for transacting business. The latter may be granted without exclusiveness, and power to grant all facilities for transacting business does not imply power to forbid all others from transacting like business. Even where a charter is granted by the legislature directly, it grants no exclusive right, unless the exclusiveness is expressly named. As said by Judge Dillon, 2 Mun. Corp. § 727: But a legislative grant of authority to construct a street railway is not exclusive, unless so declared in terms, and, therefore, the legislature may at will, and without compensation to the first company, authorize a second railway on the same streets or line, unless it has disabled itself by making the first grant irreparable and exclusive.' And if a direct grant from a legislature carries no implication of exclusiveness,

it was held that in prohibiting unlicensed persons from keeping a ferry, and in interdicting the establishment of lateral roads, etc., the government exercises public functions, and does not invade the private right of the citizen.1

why should it be presumed that the legislature intended to vest in a city the power to give exclusive privileges, when it has in terms granted no such power? Will the power to create monopolies be presumed unless it is expressly withheld? That would reverse the settled rule of construction, which is that nothing in the way of exclusiveness or monopoly passes, unless expressly named. It will not do to say that the grant of general supervision and control of the streets carries with it, by implication, the power to give exclusive privileges; for that grant implies a vesting in the city of continuous control. It is no authority for surrendering its constant supervision and management to any other corporation or individual. It implies that the city to-day, to-morrow, and so long as the grant remains, shall exercise its constant judgment as to the needs of the public in the streets, and not that it may to-day surrender to an individual or a private corporation the right of determining a score of years hence what the public may then need. The city to-day may determine that one street railroad will answer all the wants of the public, and so give the privilege of occupying the streets to but a single company. Ten years hence its judgment may be that two railroads are needed. Where is the language in the charter which restricts it from carrying such judgment into effect by giving a like privilege to a second com

pany? It is doubtless true, as counsel say, that capital is timid, and will not undertake such enterprises without abundant guaranties and undoubtful security. But this suggests matters of policy, and presents considerations for the legislature. It does not aid in determining what powers have been granted or in the construction of charters or ordinances. When the legislature deems that the public interests require that cities should be invested with power to grant exclusive privileges, it will say so in unmistakable terms, as it already has in some instances. Till then, courts must deny the possession of such power." Brewer, J., in Jackson County Horse R. Co. v. Interstate Rapid Transit Ry. Co., 24 Fed. Rep. 306, 308; s. c., 32 Am. & Eng. Ry. Cas. 216.

1 Commonwealth v. Bacon, 76 Ky. 210. It is the duty of government to establish and maintain

highways. Ferries are parts of highways and the government may perform its duty in establishing through the agency of private individuals or corporations, and such agencies are representatives of the government, and perform for it a part of its functions. And in consideration of the service thus performed for the public, the government may prohibit altogether persons from keeping ferries and competing with those it has licensed. The establishment of public highways being a function of government, no person has a right to establish such a highway

But while special privileges of this character are not illegal, a grant by which the grantor is enabled to create a monopoly, in the proper sense of that term, is in contravention of public policy, and void at common law. Such a grant destroys the freedom of trade, which is the constitutional right of every citizen. It discourages enterprise and industry, and restrains the citizen from an honest effort to obtain a livelihood. Besides, it enables the grantor to enhance the price of the commodity of which he enjoys a monopoly and thus to become a robber and oppressor of the public.1

The

§ 118. Limitation of Exclusive Privilege.-In all grants of special privileges there must be a limitation in time. As municipal authorities have no power to grant a monopoly, so they have no right to grant a perpetual franchise. extent in time to which they may go has not been definitely fixed. It appears that each case must be determined by its peculiar circumstances. In a recent case in Indiana, the court said: "The making of contracts for the supply of gas or water is a matter delegated to the governing powers of municipalities, to be exercised according to their own discretion; and, in the absence of fraud, while acting within the authority delegated to them, their action is not subject to review by the courts. The length of time for which they shall bind, their towns and cities depends upon so many circumstances and conditions as to situation, cost of supply

without the consent of government; and hence in prohibiting unlicensed persons from keeping a ferry the government does not invade the right of even those who own the soil on both sides of the stream. The owner of the soil may, unless his land be regularly condemned for the purpose, prohibit any other person from using it as a landing for a ferry. This he may do, because he is the owner of the soil. So the government. being charged with the duty of establishing and maintaining ferries, has the exclusive right to establish

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and future prospects, that courts can interfere only in extreme cases and upon reasonable application. We cannot say that twenty-five years is an unreasonable time for which to contract for a supply of light or water. Improvements made in the methods and cost of street lighting have in many instances rendered contracts that were fair and equitable when made to seem now to be grinding and oppressive." The rule appears to be that a grant of an exclusive privilege must not to an unreasonable extent restrict the legislative power of succeeding municipal authorities, and it must have regard to the interests of the public. It must not give the grantor a privilege that will enable him at a future time to take advantage of the necessities of the people by fixing exorbitant and oppressive rates. Where the length of time for, which a franchise is granted is plainly unreasonable and inconsistent with the public welfare, the grant is not void, but voidable. It is voidable as an ultra vires act of the municipal authorities. A grant may be made for a term of years, and a privilege which is not a monopoly at the time at which it is granted does not become a monopoly by the lapse of any reasonable period. In municipal grants there is a necessity for a fixed and somewhat extended time. As the cost of supplying a city with gas or water is large and involves an expensive plant, it would not be undertaken by a private corporation on any temporary or uncertain franchise.2

City of Vincennes v. Citizens' Gas Light Co., 132 Ind. 114, 126; s. C., 31 N. E. Rep. 573, 577. See also City of Valparaiso v. Gardner, 97 Ind. 1.

2 City of Memphis v. Water Co., 5 Heisk. 495. In 1853, the common council of the city of Bridgeport accepted a proposition made by one G to supply the city with water, and granted him (with a right of assignment) the exclusive right to lay pipes in the streets, so long as a full supply of pure water should be furnished. In 1857 the

Bridgeport Hydraulic Company was incorporated with power to acquire, and which did acquire, all the rights of G under the vote of the city, and became charged with all his duties; and this company, soon after, expended a large sum of money in acquiring property and establishing its water works. Held that, so long as this company supplied the city with an abundance of pure water, the legislature had no power to give another corporation the right to lay its pipes in the streets of the city for the

§ 119. Statutory Regulations.-There is some conflict of authority in the statutory enactments of the different States touching the right of municipal authorities to grant exclusive privileges. In some of the States an exclusive privilege is treated as a monopoly and illegal. In the case of the City of Brenham v. The Brenham Water Co., the charter of the city provided that it "shall be capable of contracting and being contracted with," and gave it power to provide the city with water for the convenience of the inhabitants, and the extinguishment of fires; while the law under which the water company was organized provided that it should have full power to furnish water to any city where it was located, for public or private buildings, or for other purposes, and to lay pipes through the streets with the consent of the city. A general law also authorized any

purpose of supplying the city with water. Although the State may be no party to, and have no interest in, the subject-matter of a contract, yet if it invests a corporation, otherwise powerless, with a power to make it, the legislature is thereafter concluded in reference to it. It is as a lawful contract, sacred from any interference other than judicial construction. It is the duty of courts to preserve contracts inviolate rather than to destroy monopolies. If the common council had no power to grant the exclusive use of the streets, yet as the charter of the defendant company recognized and confirmed the grant by the city, it became as effective as if the city had had the power to make it, and as if the legislature had made it in the most direct and explicit words. By a clause in the charter of the defendant company, the legislature reserved the power to recall the franchise at its pleasure. Held, that this provision did not authorize the legislature to set aside or impair the contract which

Citizens'

the city had entered into for the
exclusive use of its streets by the
defendant company, so long as it
should supply the city with water,
and which the charter had recog-
nized and confirmed.
Water Co. v. Bridgeport Hydraulic
Co., 55 Conn. 1. See also Darts-
mouth College Case, 4 Wheat. 518;
Enfield Toll Bridge Co. v. Hart-
ford & N. H. R. R., 17 Conn. 58;
New Orleans Gas Co. v. Louisiana
Light Co., 115 U. S. 650; Elliott v.
Fairhaven & Westville R. R. Co.,
32 Conn. 579; Olmstead v. Camp,
33 Conn. 532; Harding v. Stamford
Water Co., 41 Conn. 91; State v.
Milwaukee Gas Light Co., 29 Wis.
454; Atlantic City Water Works
Co. v. Atlantic City, 39 N. J. Eq.
367; Pierce v. Drew, 136 Mass. 81;
Von Hoffman v. Quincy, 4 Wall.
535; Holyoke Co. v. Lyman, 15
Wall. 500; New Orleans Water
Works Co. v. Rivers, 115 U. S. 674;
New Jersey v. Yard, 95 U. S. 104;
Railroad Co. v. Maine, 96 U. S.
499; Commissioners v. Holyoke
Water Co., 104 Mass. 446.

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