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OTHER DECISIONS.

Appeal dismissed with costs-George J. Hubbard, respondent, v. Wm. H. Nearbass, administrator. Appeal dismissed with costs-People, ex rel. Thomas Sheridan, appellant, v. Stephen B. French and others, as police commissioners.— Appeal dismissed with costs-George Monroy, respondent, v. Edmund G. Smith and others, appellants. Judgment affirmed with leave to defendant to apply to court below for leave to demur-Thomas J. Carrin v. City of Brooklyn, and William Harrigan v. Same.- -Appeal dismissed with costs-George C. Buel and others, re

inn, £37,000; John Duncuff, barrister, £35,000; E. Bor. ton, barrister, £22,000; Fred. G. A. Williams, barrister, £20,000; W. Norris Nicholson, Master in Lunacy, £17,500; W. Bruce Milton, barrister, £14,500; E. A. Wilde, clerk of assize, Oxford Circuit, £12,000; John Donnington Fletcher, barrister, deputy-chairman Middlesex magistrates, £7,982; E. Stonehouse Viger, Recorder of Southhampton, £3,226. Socicitors: -Messrs. Richard Bradshaw, £156,747; Gerard Ford, Lincoln's-inn, £70,000; E. Wright, Birmingham, £57,520; A. C. Tatham, Gray's-inu, £57.000; J. H. Scott, Coleman street, City, £53,000; E. Patchitt, Nottingham, £50,769; W. Ford, Gray's-inn, £43,000; Blom-spondents, v. Benjamin F. Van Camp, appellant.— field Burrell, London. £39,000; Edward Foster, Cambridge, £34,000; J. B. Lee, London, £34,000; C. E. Freeman, London, £29,000; Walter Prideaux, London, £28,000; R. Wiltshire, London, £28,000; John Rutherford, £23,000; James Cooper, C. A., London, £14,090.— London Law Times.

Order affirmed with costs-People, ex rel. John Sta. pleton and another, respondents, v. Geo. H. Bell and another, appellants.-Judgment reversed, new trial granted, costs to abide event-Anna M. Dobbius, as administratrix, respondent, v. Walston H. Brown, appellant.-Judgment affirmed with costs-Walter M. McKinney, respondent, v. Long Island Railroad Company.- -Judgment affirmed with costs Elizabeth Bank, respondent, v. Importers and Traders' National Bank, appellant.-Judgment affirmed with costsWrought Iron Bridge Company, respondent, v. Town of Attica, appellant.-Judgment amended as set forth in the opinion and as so amended affirmed with costs-Byron J. Strough, respondent, v. Jefferson County Board of Supervisors, appellant.-Dismissed on argument-Rose Leroy, appellant, v. Town of New Castle, respondent.—Motion for re-argument denied with $10 costs-People v. John Lowe and others.Motion to prefer granted and cause set down for the day calendar for the first Tuesday of the next sessionOwen Donnelly v. City of Brooklyn.

SECOND DIVISION.

JUDGMENTS AFFIRMED WITH COSTS.

Alfrederick S. Hatch, respondent, v. Henry Y. Attrill and another, appellants; Collis P. Huntington, respondent, v. Henry Y. Attrill and another, appel

After an interval of some thirty years the oft-recurring question of practice as to the right of a party to cross-examine his own witness has cropped up again for determination by the Court of Appeal in Price v. Manning, 61 L. T. Rep. (N. S.) 537. Curiously enough it was from a trial in the Chancery Division that the appeal arose, but inasmuch as all the Lords Justices of Appeal were consulted before judgment was pronounced, the decision is to be taken as that of the full court. On the hearing of the case before Mr. Justice Kay, counsel for the plaintiff called the defendant as a witness to prove certain correspondence. The defendant was then cross-examined generally by his own counsel, and on re-examination plaintiff's counsel sought to treat him as a hostile witness, and to put certain questions which could not be put in direct examination. These questions the judge disallowed. Hence the appeal, in which the plaintiff's counsel contended that he ought to have been allowed to cross-examine the defendant, who though he had only been called in the first instance for the limited purpose of proving certain correspond-lants; The Mayor, etc., of New York, respondents, v. ence, must be assumed to be hostile; and reliance was placed upon the dictum of Chief Justice Best in Clark v. Suffrey, 1 Ry. & Moo. 126, viz.: There is no fixed rule which binds the counsel calling a witness to a particular mode of examining him. If a witness by his conduct in the box shows himself decidedly adverse, it is always in the discretion of the judge to allow a cross-examination; but if a witness called stands in a situation which of necessity makes him adverse to the party calling him, as is the case here, the counsel may, as a matter of right, cross-examine him." The court however disapproving of this decision as not in accordance with the practice of the court, followed the opinion of Chief Justice Abbott in Barton v. Carew, 1 Ry. & Moo. 127, and laid down that whether the witness called by one party is a litigant or no litigant, it is a matter of discretion in the presiding judge to say whether the witness has shown himself so hostile as to justify his cross-examination by the party calling him. -London Law Times.

COURT OF APPEALS DECISIONS.

THE

Eighth Avenue Railroad Company, appellant; James K. Sellick, appellant, v. Wm. H. Keeler, as sheriff, respondent; Margaret Murphy, appellant, v. Lewis P. Ross, respondent; Francis C. Hill and another, respondents, v. Stephen A. Palmer and another, appellants; Wilcox & Gibbs Sewing Machine Co., appellant, v. Kunse Murphy Manufacturing Co. and another, respondents; James A. Robinson, respondent, v. Broadway and Seventh Avenue Railroad Company, appel

lant.

OTHER DECISIONS.

Judgment reversed,new trial granted, costs to abide event-Thomas Doyle, appellant, v. The Rector, etc., of Trinity Church, New York, respondent.-Wm. Moores, respondent, v. John Townshend, impleaded, etc., appellant.

THIRTEENTH VOLUME OF THE NEW YORK
STATE BAR ASSOCIATION REPORTS.

THE

HE thirteenth volume of the New York State Bar
Association Reports, containing Col. Ingersoll's

HE following decisions were handed down Tues- address, "Crimes Against Criminals," Mr. Moak's day, January 28, 1890:

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thesis,Liability Between Relatives for Services, Sup-
port, and on Alleged Implied Contracts," Hon. John
F. Dillon's paper,
A Century of American Law,"
Mr. Fiero's paper, "What Shall be Done With Our
Courts?" and the prize essay by Mr. Eugene D. Hawk-
ins, with a full account of the proceedings of the recent
annual meeting of the association, will be published
about the 1st of April next.

L. B. PROCTOR,

Secretary.

The Albany Law Journal.

ALBANY, FEBRUARY 8, 1890.

doubt he does not say so in so many words, but his judgment, in my view, can scarcely be supported on any other footing; while Fry, L. J., according to the short-hand writer's notes, does actually say so. While such opposite views exist, it is astounding how counsel or solicitor can advise a client in any matter connected with a bill of sale. Obviously the only safe advice to give is have nothing on earth to English do not seem to have been so successful do with loans on personal security. However I have

CURRENT TOPICS.

Tin their Bills of sete tot ar they were in their to pronounce an opinion on it, and the question is,

what ought I to do? I cannot pretend to reconcile these conflicting decisions; they are wholly at variance. I must leave this to subtler intellects than

mine.

I must choose between them, and think, that having regard to the weight of authority, I must adopt the view of the lords justices and Lord Macnaghten in North Cent. Wagon Co., which is subsequent to Gapp v. Bond, and has been treated as the ruling authority in Redhead v. Westwood. It is true that Gapp v. Bond was not cited in Redhead v. Westwood, nor was Kay, J.'s, attention called to that case; that of course is rather unfavorable. I can only follow them, and hold that there is not here any document requiring registration, and so the respondent is entitled to the money paid into

court less the £17 to which no claim was made. I

have no idea if I am right or wrong; I cannot say. I can only leave it to the Court of Appeal in the hope that if the case ever reaches that tribunal they will express some opinion which will enable me to come to some conclusion in deciding cases of this nature." It is quite evident that Cave is in the dark.

act concerning bills and notes. At least so Cave, J., seems to think, as we infer from his judgment in Re Yarrow, ex parte Collins, 59 L. T. Rep. (N. S.) 642. "The question I have got to decide here is one of a class which is always difficult to decide, inasmuch as there is no darker page in the annals of jurisprudence than the law of bills of sale, which, though recent, is illogical, uncertain and full of doubts and difficulties, and this question is a very good illustration of those doubts and difficulties. The first matter I have to determine is whether or not there was here a loan, or a sale followed by a hire-and-purchase agreement. * * ** Which is the right answer to give in the present case I am unable to say with any degree of certainty, because the courts, and especially the Court of Appeal, have decided this question in opposite ways. In Yorkshire Ry. Wagon Co. v. Maclure, 47 L. T. Rep. (N. S.) 290; 21 Ch. Div. 309, there is no doubt that they had regard to the form in the sense which I have attached to it above, and had not regard to the substance in the sense I have given to substance, but they looked to see how the result was brought about, and whether by mortgage, or sale and a hire- Mr. Hitt has introduced into the Assembly the and-purchase agreement following it, and finding following: "Concurrent resolution proposing an there was a sale, followed by a hire-and-purchase amendment of section two of article six of the Conagreement, they held that that was the transaction, stitution, relative to the Court of Appeals. The though if the result intended had been carried out people of the State of New York, represented in it would have been a mortgage on the security of Senate and Assembly, do enact as follows: Resolved the rolling-stock of the company. In North Cent. (if the Senate concur), that section two of article six Wagon Co. v. Manchester, Sheffield & Lincolnshire Ry. of the Constitution be amended so as to read as folCo., 13 App. Cas. 554, some members of the House of lows: Section 2. There shall be a Court of Appeals, Lords expressed a similar opinion. ***The same composed of a chief judge and fourteen associate view was taken by Kay, J., in Redhead v. Westwood, judges, who shall be chosen by the electors of the 59 L. T. Rep. (N. S.) 293, while in Gapp v. Bond, State, and shall hold their office for the term of 57 id. 333; 10 Ch. Div. 76, Mathew, J., took a dif- fourteen years from and including the first day of ferent view, which was supported by two at least of January next after their election, except that the the lords justices in the Court of Appeal. Another term of those first elected hereunder to complete the question which arises is, assuming this was a trans-requisite number shall commence on the canvass action in the nature of a mortgage, is there here any document requiring registration as a bill of sale, as it does not follow that every document found in a mortgage transaction must necessarily amount to a bill of sale? And here again I find the highest authorities at issue. In Manchester, Sheffield & Lincolnshire Ry. Co. v. North Cent. Wagon Co., Cotton, L. J., says: 'Of course the hiring-and-letting agreement cannot of itself be a bill of sale, but it may be looked at to see what the nature of the transaction was as regards the second part of the transaction.' And that view was cited and approved by Kay, J., in Redhead v. Westwood, while in Gapp v. Bond the opposite view commends itself to Lord Esher. No VOL. 41 No. 6.

----

showing their election, and continue for fourteen years from and including the first day of January next thereafter. The present chief judge and judges shall compose a portion of said court until the expiration of their respective terms of office. At the first election of judges under this amendment every elector may vote for the chief, if one is to be then elected, and only five of the associate judges. Any five members of the court shall form a quorum, and the concurrence of four shall be necessary to a decision. On appeals from orders involving questions of practice only, any three members of the court shall form a quorum, and the concurrence of two In cases where, shall be necessary to a decision.

after argument, four members shall not concur, and in other cases which may not have been argued, the chief judge may order that the case shall be heard before not less than ten judges, when the concurrence of a majority of those before whom it is heard shall be necessary to a decision. Two or more quorums of said court may sit at the same time. The court shall have the appointment, with the power of removal, of its reporter and clerk, and of such attendants as may be necessary." We see no objection to this measure on the whole. It perhaps calls for more judges than are positively necessary. Eleven or twelve would probably answer for a court constantly sitting in one branch, but if it is contemplated to have two branches sitting simultaneously, fifteen would not be too many. We do not however much favor the two-branch candlestick of the law. We earnestly hope that this measure, or something substantially like it, will prevail.

The underpinning seems to have been knocked away from the bishops and clergy of England in the matter of marriage with a deceased wife's sister. It will be remembered that they pin their faith to Leviticus, xviii, 6, which says: "None of you shall approach to any that is near of kin to him." This they say should be translated, "flesh of his flesh." Elsewhere the Bible says "husband and wife are one flesh." Ergo, the wife's sister is flesh of the husband; q. e. d. Now, as we learn from the Tribune, "according to a letter which has just been received by the Marriage Law Reform Association in England from Professor Schroeder, the president of the Imperial German Commission for the Revision of the Bible, the correct translation of the verse from the Hebrew is so construed as to mean that a man must not take his sister-in-law as his wife while her sister is alive. That is to say, he must not have two wives living at the same time, in his house, who are sisters. On a point of this kind the opinion of the greatest biblical scholar in Germany a land which has a proud pre-eminence as regards scriptural exegesis is important. Luther's text is in essential agreement with Professor Schroeder's rendering of the passage. This is a different thing from a biblical command not to wed a sister-inlaw after the wife's death. Although marriage with a deceased wife's sister is still legally prohibited in England, and the issue thereof is illegitimate in the eyes of the law, yet society is beginning tacitly to tolerate such unions." Now how much longer will a dozen ecclesiastics in the House of Lords defeat the repeatedly-expressed will of the people of England?

The Law Journal says: "Mr. Frederick Mead, one of the metropolitan stipendiary magistrates, has written an interesting letter on the question of criminal appeals. After explaining the present system of appeal, and comparing it with the American system, he cites the case of Guiteau, the assassin of President Garfield, whose sentence was postponed five months to enable him to appeal. On August 24

last, shortly after the trial of the Maybrick case and the discussion of appeals in criminal cases in the House of Lords, attention was drawn in this journal to the cases of Kring and Mrs. Taylor, the one in Missouri and the other in Virginia. In Mrs. Taylor's case the prisoner, charged with poisoning her husband, was convicted by the jury of murder in the second degree, notwithstanding that poisoning a husband in Virginia is murder in the first degree. A single judge set aside the verdict and discharged the prisoner. In Kring's case the prisoner was convicted of murdering his friend and benefactor's wife because he failed to seduce her, and was sentenced to death. The judgment was reversed on a writ of error, and the case re-tried twice, and on the fourth trial the prisoner pleaded guilty of murder in the second degree, and was sentenced to twenty-five years' penal servitude. Again the judg ment was set aside by writ of error, whereupon the prisoner stood mute in the dock, and a conviction for murder in the first degree was entered against him. This judgment was appealed against, and the Superior Court of Missouri affirmed it; but the Supreme Court of the United States reversed it on the ground that the State had adopted a new Constitution in the course of proceedings, so that he was entitled to be tried under the old. There had been five trials and four appeals. ** * * The opinion unfavorable to a court of appeal in criminal cases appears to be gaining ground in the minds of sensible people based on the knowledge and judgment of persons of experience in the practical work of courts for trying criminal causes, of which Lord Bramwell is the most weighty." We fail to feel the force of this. Five months' delay for a man fighting for his life, and alleged to be insane, does not seem unreasonable. The action of the single judge in the Taylor case seems rather to show the need of a criminal court of appeal. In the Kring

case it must be assumed that the new trials were granted for errors, but the Law Journal would hang the prisoner in spite of error, unless the home secretary, who is not a judge, nor necessarily a lawyer,

can be made to see it.

IN

NOTES OF CASES.

N State v. Pennoyer, Supreme Court of New Hampshire, July 26, 1889, it was held that a statute requiring all physicians, except those who had resided and practiced their profession continuously between January 1, 1875, and January 1, 1879, in some one town of the State, to obtain a license, and pay therefor a certain amount, is unconstitutional, as discriminating in favor of one class of citizens to the detriment of another. The court said: "The law cannot discriminate in favor of one citizen to the detriment of another. The principle of equality pervades the entire Constitution. *** The Legislature cannot by special act authorize a particular guardian of a minor to make a valid conveyance of his ward's estate because the exercise of such a power by the Legislature is in its nature both leg

*

islative and judicial,' and 'under our institutions | the enjoyment of their personal and civil rights; all men are viewed as equal, entitled to enjoy equal that all persons should be equally entitled to privileges and to be governed by equal laws. If it to pursue their happiness, and acquire and enjoy be fit and proper that license should be given to one property; that they should have like access to the guardian, under particular circumstances, to sell the courts of the country for the protection of their estate of his ward, it is fit and proper that all other persons and property, the prevention and redress of guardians should, under similar circumstances, have wrongs, and the enforcement of contracts; that no the same license. This is the very genius and spirit impediment should be interposed to the pursuits of of our institutions.' Opinion of the Justices, 4 N. H. any one, except as applied to the same pursuits by 572, 573. For similar reasons the Legislature can- others, under like circumstances; that no greater not grant a new trial in a particular action. Such burdens should be laid upon one than are laid upon an act is 'not to promulgate an ordinance for a whole others in the same calling and condition * class of rights in the community, but to make the Class legislation, discriminating against some and action of a particular individual an exception to all favoring others, is prohibited; but legislation standing laws on the subject in controversy.' 'An which, in carrying out a public purpose, is limited act which operates on the rights or property of only in its application, if within the sphere of its operaa few individuals, without their consent, is a viola- tion, it affects alike all persons similarly situated, is tion of the equality of privileges guaranteed to every not within the amendment.' It was accordingly subject.' Merrill v. Sherburne, 1 N. H. 199, 212; held that a municipal ordinance prohibiting washClark v. Clark, 10 id. 380, 385. It cannot author- ing and ironing in public laundries during certain ize the foreclosure of a mortgage by a method not hours, within certain territorial limits, was not inapplicable to other like mortgages (Railroad Co. v. valid. See also Soon Hing v. Crowley, 113 U. S. 703, Elliot, 52 N. H. 387, 393, 400), require or empower 708, 709. But an ordinance regulating laundries, some towns, and not others, to relieve Federal mili- which confers upon the municipal officers an arbitary conscripts from the performance of their public trary power to give or withhold consent for persons duty by the payment of money, or compel some to carry on the business without regard to their jurors to perform jury service for a less compensa- competency, which makes arbitrary discrimination tion than is paid to others for the same service. founded on difference of race between persons othBowles v. Landaff, 59 N. H. 164, 194, 195; Gould erwise in similar circumstances, is a violation of the v. Raymond, id. 260, 277, 278. No one citizen or fourteenth amendment. Yick Wo v. Hopkins, 118 class of citizens can by law be charged with the U. S. 356. In Hayes v. Missouri, 120 id. 68, it was performance of duties or subjected to burdens held that a statute allowing the State, in capital not by law made incumbent upon all other citizens cases, fifteen peremptory challenges to jurors in in the same circumstances. The fourteenth amend- cities having a population of over one hundred ment of the Constitution of the United States, pro- thousand, while only eight are allowed in other viding that 'no State shall make or enforce any law places, is not obnoxious to the amendment. The which shall abridge the privileges or immunities of court say (120 U. S. 71): The fourteenth amendcitizens of the United States, * # * nor deny ment to the Constitution of the United States does to any person within its jurisdiction the equal pro- not prohibit legislation which is limited either in tection of the laws,' adds nothing to the rights and the objects to which it is directed or by the terriliberties of the citizens of this State. It merely tory within which it is to operate. It merely reconfirms to them, by Federal sauction, the rights quires that all persons subjected to such legislation secured to them by the action of their ancestors a shall be treated alike, under like circumstances and century ago. It has wrought no change in the law conditions, both in the privileges conferred and in of the State. An enactment obnoxious to this pro- the liabilities imposed.' In Railway Co. v. Beckvision of the National Constitution is in New Hamp-with, 129 U. S. 26, 29, 30, the doctrine of the foreshire no more ineffective than it would be in its ab-going cases is affirmed. 'Equality of protection,' The decisions of the Federal court are says Field, J., implies not merely equal accessibility conclusive on the question of the validity of statutes to the courts for the prevention or redress of wrongs under the Federal Constitution, and are authority and the enforcement of rights, but equal exemption to be weighed on the question of their validity un- with others in like condition from charges and liader the Constitution of the State. In Missouri v. bilities of every kind.'" Lewis, 101 U. S. 22, 31, the court say the amendment has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place, and under like circumstances.' In Barbier v. Connolly, 113 U. S. 31, 32, the court say that the fourteenth amendment 'undoubtedly intended, not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all, under like circumstances, in

sence.

·

In Anderson v. Jett, Court of Appeals of Kentucky, December 12, 1889, it was held that an agreement between owners of two rival steamboats on the Kentucky river, that in order to prevent rivalry and consequent reduction of charges, the net profits of each should be shared in a certain proportion, each bearing its own expenses, and that if the owners of either boat should sell with a view of going out of the trade, notice should be given to the owners of the other boat, and the owners so selling should not

enter the trade again within one year, is void as aga ast public policy, and the owners so selling may start a new boat within the year. The court said: "Neither assumed any duty or obligation in reference to the other that he was not under before the agreement was entered into, except that of pooling the net profits earned by each, and dividing them in certain proportions; but neither party was under any obligation to the other party to run his boat for as much as a single day. Neither party was under any obligation to the other to keep his boat well manned, or in good and clean condition. The only tie common to both was that of dividing the net profits of each boat. There was a strong stimulation to increase the net profits by means other than that of popular favor springing out of efficient steamboat facilities and close attention to the business of shipping for reasonable charges and courteous attention to passengers at reasonable fare. Also under this agreement, there was no incentive for each boat to run the trade, if one boat could perchance do all the business, though only after a sort.' It was to the interest of each for the other to lie up, thereby saving expenses and increasing the net profits; and another feature detrimental to the public interest, consists in the fact that they were not only deprived of frequent means of shipment and passenger travel, but subjected to extortionate charges. Why so? Because there is no competition in the trade, nor likely to be any; for by this combination there lies another boat at the wharf, ready, according to the written obligation, to appear in the trade, and cut the prices of freights and passage below living prices, as long as such competition could hold out. It is the competition, or fear of competition, that makes these carriers efficient, attentive, polite and reasonable in charges. Remove competition, or the fear of it, and they become extortionate, inattentive, impolite and negligent. The writing sued on by the appellant tends to inspire just such state of case. It is said that neither was bound to charge the same as the other. That is true; but either could extort with impunity, and the other would be an equal recipient of the fruit of the extortion. There would be no motive power rivalry in trade - to circumvent the extortion. On the contrary, self-interest would prompt, not only the encouragement of the extortion, but an imitation of the nefarious example. It is true that their contract did not, in so many words, bind them to any given charges; but it made it to the interest of each, not only to charge, but to encourage and sustain the other in charges that would amount to confiscation. Why? The facts alleged in the petition, doubtless stated as modestly as the draughtsman could show that the combination was exceedingly profitable, and entirely unfriendly to free and untrammelled competition. This combination was more than that of a combination not to take freight or passengers at less than certain prices. In such case the combiners have to furnish adequate means of transportation, and efficient and polite officers, and confine themselves as nearly as possible to

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the sum agreed upon, in order to secure the trade, or a reasonable portion of it; but here, by reason of the agreement, there is no incentive to competition. Inefficient means of transportation, unskilled or inattentive officials are no drawback to either boat. Its share of the profits come notwithstanding. The coal merchant whose only means of transportation is by the Kentucky river may not be able to compete with his rivals in business, if compelled to pay exorbitant freight charges; or if such competition should not exist, the consumer of his coal would be taxed these charges. So with the merchants; and more pitiable than all the rest would be the condition of the agriculturalist whose only means of transportation would be by said river. Rivalry is the life of trade. The thrift and welfare of the people depend upon it. Monopoly is opposed to it all along the line. The accumulation of wealth out of the sweat of honest toilers by means of combinations is opposed to competing trade and enterprise. That public policy that encourages fair dealing, honest thrift and enterprise among all the citizens of the Commonwealth, and is opposed to monopolies and combinations, because unfriendly to such thrift and enterprise, declares all combinations whose object is to destroy or impede free competition between the several lines of business engaged in utterly void. The combination or agreement, whether or not in the particular instance it has the desired effect, is void. The vice is in the combination or agreement. The practical evil effect of the combination only demonstrates its character; but if its object is to prevent or impede free and fair competition in trade, and may in fact have that tendency, it is void, as being against public policy. For the foregoing reasons the agreement is against public policy, and is therefore void."

VALIDITY OF A GRANT TO EXERCISE AN EXCLUSIVE FRANCHISE TO USE THE STREETS OF A MUNICIPALITY.

N N Citizens' Gas and Mining Company v. Town of Elwood, 114 Ind. 332, it was said that "a municipal corporation cannot grant to any fuel or gas supply company a monopoly of its streets. There is nothing in the nature or business of such a company making its use of the streets necessarily exclusive. The spirit and policy of the law forbid municipal corporations from creating monopolies by favoring one corporation to the exclusion of others. It is probably true that a municipal corporation may make a contract with a gas company for supplying light for a limited time, even though it be for a number of years. On this point however there is some conflict on the proposition, that in the absence of express legislative authority, a munici pal corporation cannot grant to any corporation the exclusive privilege of using its streets."

The gas company sought to be enjoined was a natural gas company, which had never obtained permission of the town of Elwood to lay its pipes in the street. it had granted to the Elwood Natural Gas and Oil The town sought an injunction upon the ground that Company an exclusive privilege of laying mains and pipes in the streets and alleys for the purpose of sup

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