The herald., 1898-06-05

or legislative powers, but its business or
proprietary powers. The purpose of such
a contract Is not to govern its Inhabitants
but to obtain a private benefit for the city
itself and its denizens. Dill.
Nun. Corp. sec. 27, City of Gin
cinnau VS. Cameron. 33 Ohio St., 3S6, s67;
Safety Insulated Wire and Cable company
VS.. City of Baltimore, supra, and cases
cited under it,"
In Cincinnati VS.. Cameron the court says:
1.-The power given to a city to construct
sewers is not power given for govern
mental purposes; nor is it public munich
pal duty imposed upon the city, like that of
keeping streets in repair. but it is a spec
isl legislative grant to the city for private
purposes. The sewers of the city. like its
works for supplying the city with water,
are the private property of the city; the
corporation and its corporators-its citi-
zens-are alone interested in them; the
outside public, as people of the state at
large, have no interest In thema as they
have in the streets of the city, which are
public highways. Detroit VS.. Corey,
Mich, 165."
If, however, it be conceded. contrary to
these authorities, and as claimed by de-
fc.lants, that the power of city to regu-
late water rates is legislative or govern
mental, the city may by contract abridge
such power under an implied, as well as an
express, legislative grant, and this rule is
recognized by many of the authorities upon
which defendants rely. Thus, in one of
them. 1t is said:
Powers are conferred upon municipal
corporations for public purposes, and as
their legislative powers cannot, as we have
lust seen, be delegated, so they cannot,
without legislative authority. express or
implied, be bargained or bartered away.
Such corporations may make authorized
contracts, but they have no power as
party to make contracts or pass bylaws
which shall cede away, control or en-
barrass their legislative or governmental
powers, or which shall disable them from
performing their public duties"
n Dillon on Municipal Corporations"
fourth edition, sec. 81.
1t is worthy of note that the words with
out legislative authority, express or I'M
piled" are not found in the first three
editions of Judge Dillon's work. I take it
therefore that a review of the subject made
by him subsequent to said editions satisfied
him that the governmental, as we'll as bus
mess, powers of a city could be abridged
by contract if there were legislative au-
thority therefor, and that such authority
could arise by implication, as well as by
express grant See also State vs. Cincin-
natl Gas Light, etc, company, Is ONO ST.,
Rep. 293; Santa Ana Water company VS..
Town of San Buenaventura, supra; Illinois
Trust and Savings bank VS.. City of Arkan-
sas City, supra.
As already stated, most, If not all, OF the
cases cited by defendants on this point,
some of which are specially referred to be-
low. relate to exclusive franchises, and in
MANY of these cases the franchises are de-
MED. not because they involve the exercise
Of governmental functions, but upon the
grounds that they are monopolies and un-
necessary to the accomplishment OF the
general objects of the grants,and herein lies
the wide distinction between such cases ana
the case at bar.
In Jackson, etc., company VS.. Interstate
atc COMPANY. "a Fed, Rep 30S-9 it is said:
again. exclusiveness of occupation Is not
necessary to the full performance of
street railroad company Of all its functions.
The running of street railroad on one
street is in no manner interfered with by
the running of a similar road on parallel
street. Doubtless the profits of the one Will
he increased If the other is stopped. Monop-
o,v implies increase of profits. But the
question of profits is very different from
that of the unimpeded facilities for transact
ing business. The latter may be granted
v;tbout any exclusiveness And power
IN grant all facilities for transacting bus
mess does not imply power to forbid all
o+bers 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, Nun.
Corp, Sec. 727
".Rut a. legislative grant of authority
to construct a street railway is not exclu-
siye. unless so declared in terms, ana there-
fore the legislature may at will, and with
out compensation to the first company au-
thorize a second railway on the same
streets or line, unless it has disabled itself
bv making the first grant irrepealable and
exclusive
"And if direct grant from legislature
carries no implication of exclusiveness,
why should it be presumed that the legis-
lature intended to vest in city the power
to give exclusive privileges, when it has in
terms granted no such power? VIII the
power to create monopolies be presumed,
IL
would reverse the settled rule of construc-
ton, which is that nothing in the way of
exclusiveness or monopoly passes, unless
expressly named"
Again, in another case relied on by de-
PENDANTS, the grant of an exclusive right
of selling to the city of Helena all water
required by 1t, ETC., for the period of twen-
| ty years, was held to be void, on. the
ground, among others, that it was a mo-
nopoly, the court saying:
| "Then the power to provide the city with
water, by making proper contract with
some person to erect water works, and sell
water to the city, being conceded, the next
question that presents itself is as to the
| power of the city to make this particular
contract. Is the present such contract
| as to be beyond the power of the city
council to enter into so as to bind the mu-
nicipal corporation? Does this contract
create monopoly? For, If 1t does, it goes
| beyond the power of city council. Mo-
| nopolles may be created; but they must be
called into being by the sovereign power
alone. A city council has no authority to
grant to any person monopoly, even
where no express prohibition is found in
| the charter or other acts of the legislature.
Monopolies are contrary to the genius of
free government, and ought not to be en-
couraged by the people, or countenanced
| by the courts except when expressly au-
thorized by positive law"
Not only does the court rest its decision
tl,n Iot tha fr,r Ill