city in which a water company was organized to contract with it for supplying the city with water. It was held that while these several laws, taken together, undoubtedly authorized the city to make some contract for supplying itself with water, yet they did not confer on the city the express power to make a contract giving the water company the exclusive right to supply the city and inhabitants with water for the period of twenty-five years, at a fixed rate per annum, and, as no such power was necessary or essential to the proper exercise of the powers expressly granted, it could not be implied, and this contract must be considered as unauthorized by the legislature and invalid. Power given to a municipal corporation to contract in relation to a given subject-matter does not carry by implication the power to contract, even with reference to that, so as to embarrass and interfere with its future control over the matter, as the public interest may require. A grant which gives to one or an association of persons an exclusive right to buy, sell, make or use a given thing or commodity, or to pursue a given employment, creates a monopoly. The exclusive right need not continue indefinitely, so as to amount to a perpetuity. It is sufficient that it is an exclusive privilege for a period of time of the character forbidden. So, in this case, the ordinance granting the exclusive right to sell water to a community, for public and private uses, affects all the inhabitants in their common rights directly, and in their individual rights indirectly, and is in conflict with that clause of the Texas constitution which provides that perpetuities. and monopolies are contrary to the genius of a free government and shall never be allowed.1 In a recent case in

1 City of Brenham v. Brenham Water Co., 67 Tex. 542; s. C., 4 S. W. Rep. 143. "Whether and how a municipal government will exercise a discretionary power conferred upon it, must necessarily depend upon the determination of that question by it in the exercise of whatever legislative power has been conferred upon it. To secure

the means to carry out such legislative determination, the making of one or many contracts may become necessary. The validity of every contract a municipal corporation may assume to make, must at last depend upon the validity of the law or municipal ordinance under which it is made. If the legislature had expressly author

Montana, it was held that the grant by a city council of the exclusive right of selling to the city all the water required by it for sewerage and fire purposes for the period of twenty years at a minimum rate fixed in the contract is a

monopoly; and this though the grant does not prevent other people from selling water to private citizens.1 It was held farther in the same case that a city council has no authority to grant to any person a monopoly, even where no express prohibition is found in the charter or other acts of the legislature.2 The present inclination of the courts is to construe statutory enactments relating to the powers of municipal authorities in favor of the citizen. In a late case before the United States Circuit Court for the Eastern District of Michigan, it was held that authority conferred by act of legislature upon a city council "to cause the streets of a city to be lighted," and to make "reasonable regulations" with reference thereto, does not empower the city government to grant to one company the exclusive right to furnish gas for thirty years, and that the exclusive right to light a city with gas for thirty years is not legally impaired by a subsequent contract with another company to light the streets with electricity. But it has been held that if the

3

Philadelphia, 31 Pa. St. 175; Lehigh Water Co.'s Appeal, 102 Pa. St. 515; San Francisco Gas Light Co. v. Dunn, 62 Cal. 580; In re Mayor, etc., of Albany, 23 Wend. 277; Railroad Co. v. Mayor, 1 Hill, 562; Martin v. Mayor, 1 Hill, 545; Goszler v. Georgetown, 6 Wheat. 593; Bryson v. Philadelphia, 47 Pa. St. 329; Britton v. Mayor, 21 How. Pr. 251; New York v. Second Avenue, etc. Co., 32 N. Y. 261; Dingman v. People, 51 Ill. 277; Brunner v. Boston, 102 Mass. 19; Johnson v. Philadelphia, 60 Pa. St. 445; Jackson v. Bowman, 39 Miss. 671; Oakland v. Carpentier, 13 Cal. 540; Smith v. Morse, 2 Cal. 524; Karst v. St. Paul, etc. R. R. Co., 22 Minn. 118; Peru v. Gleason, 91 Ind. 566; National Bank v. St. Joseph, 31 Fed. Rep. 216; Costar v. Brush, 25 Wend. 628; Brooklyn v. City Railroad Co., 47 N. Y. 475; Home v. Rouse, 8 Wall. 430.

1 Davenport v. Kleinschmidt, 6 Mont. 502; s. c., 13 Pac. Rep. 249. See also case of Union Ferry Co., 98 N. Y. 150; Mohawk Bridge Co. v. Utica & S. R. Co., 6 Paige, 554; Costar v. Brush, 25 Wend. 628; Chenango Bridge Co. v. Binghampton Bridge Co., 27 N. Y. 87; S. C., 3 Wall. 51; West River Bridge Co. v. Dix, 16 Vt. 446.

2 Davenport v. Kleinschmidt, 6 Mont. 502; s. c., 13 Pac. Rep. 249. See also Jackson Co. H. R. Co. v. Interstate R. T. Ry. Co., 24 Fed. Rep. 306; New Orleans C. R. Co. v. Crescent City R. Co., 12 Fed. Rep. 308; Meadville Fuel & Gas Co.'s Appeal (Pa.), 4 Atl. Rep. 733.

State, or its municipalities, delegate any of its police or sovereign powers to persons or corporations, and the person or corporation in consideration thereof engages in some enterprise which he could not have otherwise done, then such grants or privileges, public and private, become contracts, for a sufficient consideration, and cannot be impaired by any subsequent act of the State or its municipalities capriciously and without just cause.1 In a case in Georgia, it was held that grants by the public are to be strictly construed and nothing passes by implication. The whole legislative history of this State shows that the understanding of our people has been that exclusive privileges are never conferred, where none such are expressly given by the charter. The legislature, or the inferior court, as its agent, after having chartered a company to make a particular improvement for public accommodation, without any provision that no rival improvement should afterwards be authorized, may grant a charter to another company or individual, to make an improvement of the same or of a different kind to afford the like accommodation, however the work of the junior company might impair or even destroy the profits of the elder. It is competent for the legislature to grant charters with exclusive privileges, but should a change in the business population

Knowler, 4 Pet. 152; Chesapeake & Ohio Ry. Co. v. Miller, 114 U. S. 176; s. C., 5 Sup. Ct. Rep. 813; Butchers' Union, etc. Co. v. Crescent City, etc. Co., 111 U. S. 746; s. C., 4 Sup. Ct. Rep. 652.

1 City of Louisville v. Weible, 84 Ky. 290; s. c., 1 S. W. Rep. 605. "The power to protect, through her cities and towns and other public agencies, the public health, the public morals, and the public safety, cannot be relinquished or surrendered; for the government is bottomed upon the fundamental principles, promotion of the peace, safety, happiness and security of its citizens. Therefore, any sur

render of its power to protect the public health, the public morals, the public safety of the citizen, would violate this fundamental principle, and tend to revolution and anarchy. The power, therefore, cannot be surrendered. The State, however, and its municipalities intrusted with the execution of this power, may provide the means of protecting the public health; it is its duty to do so. Any means may be adopted that will effect that end, such as employing trusty persons to take the matter in charge, under the supervision and control of the State or city." Ibid., 295.

and intercourse of the country require it, new avenues may be opened within the limits of such exclusive grant, by providing just compensation. There is no difference between a franchise and any other property in this respect; all may be made subservient to the public use, provided the public faith be not violated in making adequate remuneration.1

§ 120. The Subject Continued.-The law, as stated in the foregoing section, is not sustained in all the States. In a recent leading case in Connecticut, the view upheld is quite out of harmony with the above stated. 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. It was held that, so long as this company supplied the city with an abundance of pure water, the legislature has no power to give another corporation the right to lay its pipes in the streets of the city for the 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 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

1 Shorter v. Smith, 9 Ga. 517.