The herald., 1898-06-05

1t to continue. This feature OF the ca6es
however, will consider in subsequent
and more appropriate connection.
In Illinois Trust and Savings bank v. city
of Arkansas City, 76 Fed. Rep 219 the
court says:
''This city then had the power to grant
to the gas company the privilege OF using
its streets for water pipes. ana II mad
power to rent hydrants of that company,
when this contract was made. For the pur-
poses of this discussion. we shall concede
that it had no power to make the privilege
of the gas company to use its streets ex-
elusive because such a grant tends to cre-
ate a monopoly. The general rule Is that
the legislature alone has the power to
make exclusive grants of this character,
and that this authority does not vest IN
the municipality, unless 1t is expressly
granted to it by its charter"
In Omaha Horse Railway Co. v. Cable
Tramway Co., 30 Fed. Rep. 1928, the mo-
nopoly feature of the grant there under
discussion was referred to thus:
'This rule of construction against the
grantee, which applies in all legislative
grants, obtains with the greater force In
a case like the one at bar, where the
grant claimed is not merely the right to
do something, but of a right to exclude
all the rest of the public from doing that
thing. He who says that the state has
given him franchise, right to do that
which without that franchise he could not
do, will be compelled to show that the
franchise the right claimed, is within tho
terms of his grant. Much more strenuous
must be the demand upon him for clear and
explicit language in his grant when he
claims that a part of it was not merely
the franchise, the right to do, but also the
right to exclude all others of the public
from exercising the same right, and the
state, as the representative of the public,
from according the same right to another"
In Saginaw Gas Light Co. V. city of Sag
inaw, 2S Fed Rep 529, in considering the
question whether the common council or
that city had power to confer an exclusive
franchise upon the plaintiff to light its
streets with gas for thirty years, the court
said:
THAT the state, in its sovereign capac-
ity, may grant a monopoly of this descr'p-
tion and that such monopolies will be pro-
tected against a subsequent confilcting
grant has lately been settled by the SUI
preme court in New Orleans Gas Co., v.
Louisiana Light Co, 115 U. S. $50, 5. &.
Sup ct. Rep. 252 and Louisville Gas Co.
V. Citizens Gas Co., 115 U. S. 6SS, s. e.
G SUP. CT. Rep 265. But whether under
charter simply authorizing municipal
CORPORATION TO cause streets to be lighted
it may grant an exclusive privilege of this
description for a term of years, is a widely
different question. Bearing in mind that
the powers of the municipality are strictly
limited by it's charter, it Is needful to IN
ouire whether the grant of an exclusive
;ca ic a N re ble meth
cd of exercising it's authority to furnish
gas to It's inhabitants. We think 1t en-
tirely clear that the city is not bound to
manufacture and furnish the gas ITSELF but
may contract with any individual or COM
pany for the city, and, as an incident there
to, may authorize the use of its streets for
LAYING pipes and mains.
at is clear, however, that there Is no
authority expressly given to confer upon
any corporation an exclusive right to oc-
cupy it's streets for number OF years
1.-THE common law of England declares
that monopoles can emanate from tho
crown and can only be conferred by act Of
parliament, CBac Abr. tit. Monopoly
and bylaw which creates a monopoly
is void. Jac. Law Dic.)
1.-THE great weight of authority in this
country is in the came direction" ETC.
In State v. Cincinnati Gas Light.
ETC.. company, IS Ohio ST.
Rep. 293, the court says: 'is
"Now. we concede that the streets of
city may be appropriated to authorized
purposes, promotive of the convenience
and welfare of it's inhabitants, and not sub
stantially interfering with the public ease
ment or right of travel. And from partial
appropriations of this character. rights of
private property may arise which can not
rightfully be disturbed. But when it Is
sought to couple with such partial appro-
priation stipulation that no further use OF
unoccupied portions of the streets shall be
thereafter permitted or made for similar
purposes, this is not the exercise of the
power Of appropriation, but an attempt to
prohibit its exercise; and when the effect
Is to create private monopoly, the power
of the city council thus to divest itself OF
authority conferred upon it as public
agent, for the benefit of others, must be
clearly shown"
In that case, however, the court holds
that even the power to grant an exclusive
franchise may arise by implication as we'll
as from express terms, the language Of tho
court being as follows:
"And assuming that such power may
be exercised directly, we are not disposed
to doubt that it may also be exercised ind;.
rectly, through an agency of municipal
corporation, clearly invested, for police
purposes, with the necessary authority.
But we have referred to these authorities
as our justification for saying that when a
franchise so far in restraint of trade, and
SO pregnant with public mischief and pri-
vate hardship, is drawn in question, and IL
claimed to be derived through municipal
ordinance or contract. the power Of the
municipal authorities to pass the ordi-
nance or enter into the contract must be
free from doubt. 1t must be found on tha
statute book, in express terms, or arise
from the terms of the statute by implica-
ton so direct and necessary as to render
| it equally clear"
The review of the defendants citation
shows, that, in each case, the franchise
claimed was denied, not because 1t was
legislative or governmental in its nature,
but because it was monopoly and, in the
| first case for the additional reason, thae
the franchise was not necessary to the ac-
complishment of the general objects OK
the grant Neither of these reasons apply
to the case at bar The abridgement of the
right of the city to regulate water rates
does not create monopoly, and is a nec-
essary means to the proper exercise of tho
general power to supply the city with
water.
-. ,s,k f1,ok tI,ov okna