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plying the town and its inhabitants with natural gas; in consideration of which the company had agreed to furnish natural gas to each alternate street lamp free, and furnish gas for lights in front of the church buildings of the town without charge. The company having performed its part of the contract, the town claimed that it had the exclusive right to lay mains and pipes in the streets and alleys. The court denied the right of the company to such exclusive possession, but maintained the injunction upon the ground that the Citizens' Gas and Mining Company had never obtained of the town permission to lay its pipes in the streets and the alleys. That company had petitioned the town council for a permit to occupy the streets with its pipes, which the council refused to consider. An act of 1887, then in force, gave town and city councils "power to provide by ordinance reasonable regulations for the safe supply, distribution and consumption of natural gas within the respective limits of such towns and cities, and to require persons or companies to whom the privilege of using the streets and alleys of such towns and cities is granted for the supply and distribution of such gas to pay reasonable license for such franchise and privilege."

The court held that this statute only authorized the enactment of a general ordinance, and not an ordinance for each particular company. This the town had not done, but had passed a special ordinance giving the Elwood Natural Gas and Oil Company permission to occupy the streets. This special ordinance was more in the nature of a permit, or a contract with the company.

The Citizens' Gas and Mining Company had secured an oral permission from the town trustees, individually, to layits pipes in the streets, but had no permit from the town council in its official capacity. Referring to this feature of the case, the court said: "If the trustees constituted the town, it may be that this suit could not be maintained, for the courts would probably not aid them in their efforts to protect their illegal grant. But they do not constitute the town; that is composed of the inhabitants of the locality. The trustees represent the corporation, but they are not the corporation. They are clothed with local and limited powers of sovereignty, and these powers they can neither barter away nor surrender. As the representatives of the public corporation, they may invoke the aid of the courts of justice to protect its rights, although they have themselves failed in their duty. It is not to protect them that the courts interfere, but to protect the rights of the corporation they represent." In State, on the Relation of the Attorney-General, v. Cincinnati Gas-Light and Coke Company, 18 Ohio St. 262, the question was presented whether a city had the power to grant the exclusive privilege to occupy the streets for the purpose of supplying gas for a long period, and it was held that it had not, unless expressly empowered by statute to enter into such a contract with a gas company. "The authority," said the court, "to make the contract must therefore be found, if at all, in the general grant of power to cause the city to be lighted with oil or gas. This power carries with it, by implication, all such powers as are clearly necessary for the proper and convenient exercise of the power expressly granted. Hence we see no reason to doubt that the city council might, by contract, provide for the lighting of the city by gas, and as the use of the streets and alleys for the purpose of laying gas-pipes therein would be almost, if not wholly, indispensable to such an undertaking, it would clearly be competent for the city council to grant to the contracting party the right to such use. But no such necessity is perceived for making such right exclusive. The same streets might consistently be used by two or more persons or companies for the purpose of laying down their gas-pipes. If, under the general powers here given, a

single city council might bind its successors not to make or permit any further use of the streets for a similar purpose for a period of twenty-five years, why not for a hundred years or in perpetuity? Was such the legislative intention? If so, we fail to discover it either in the express terms of the statute or as arising therefrom by clear and necessary implication." In view of the well-established rules of strict construction to be given to grauts of corporate power, or against the public, we are constrained to hold that the city council of Cincinnati had no authority at the time of the passage of the ordinance of 1841 to grant to Conover the exclusive right to use the streets of the city for the purpose therein expressed, and that the defendaut could therefore acquire no such right by the assignment of his contract." A twenty years' user was held not to confer such a right either, though called exclusive, because it was "not shown to have been a user inconsistent with a like use of unoccupied portions of the streets for a similar purpose by others. The mere use of a portion of the street for the purpose stated in the plea [for the purpose of laying pipes in the streets] is not, in its nature, exclusive as to other parts of the same street, and the fact that others have not exercised a similar right does not make defendant's user the exercise of a right to exclude others."

A statute of New York authorized a town to enter into a contract for the lighting of its streets, but did not specify for how long the contract should run. It was held that the statute did not confer a power to make an absolute and binding contract for a term of years. It was also held that a repeal of the act annulled the contract. The judge who wrote the opinion thought that the town would revoke the contract at its pleasure; that it could not divest itself of the power to discontinue the lighting of any or all the streets. Richmond County Gas- Light Co. v. Town of Middletown, 59 N. Y. 228; affirming 1 T. & C. 143.

A statute of Michigan incorporating the city of Saginaw provided that the common council were authorized "to cause the streets, lanes and alleys to be lighted." Under this clause the city council granted the right to a gas company to supply the city with gas for thirty years. This grant was held void by the United States Circuit Court for that State. "It is clear," said the court, "that there is no authority expressly given to confer upon any corporation an exclusive right to occupy its streets for a number of years. It is true it may, in effect, grant such exclusive right by refusing to any other company the franchise or privilege it has already granted to one; but this presupposes a continued and abiding consent on the part of the city to keep alive its contract, and is quite distinct from the right of the city to surrender its power to make another contract, and to vest in the plaintiff the right to determine for itself whether a rival company shall be permitted to enter its domain. While there is great force in plaintiff's argument that individuals would not be likely to incur the great expense of establishing gas-works and laying pipes without some assurance of a profitable and continued employment for a sufficient length of time to remunerate them for their outlay, we think the law is too well settled that this cannot be done, without express permission of the sovereign power, to be now disturbed. If a grant of this kind for thirty years may be supported, why may it not, by parity of reasoning, be upheld for a hundred years or in perpetuity?" Saginaw Gas-Light Co. v. City of Suginaw, 28 Fed. Rep. 529: 16 Am. & Eng. Corp. Cas. 562; Garrison v. City of Chicago, 7 Biss. 480.

The foregoing were cases of gas companies. The same rules apply to a street railway. Thus where a city, having power to permit a street railway company to lay its track in its streets, granted an exclusive right for a certain number of years, the exclusive part of the grant was held void. Jackson County Horse Co. v.

Inter-State Rapid Transit Ry. Co., 24 Fed. Rep. 306. See Atchison Street Ry. Co. v. Missouri Pacific Ry. Co., 31 Kan. 660; Davis v. Mayor, etc., 14 N. Y. 506; S. C.. 67 Am. Dec. 186; Illinois, etc., Co. v. City of St. Louis, 2 Dill. 70 (Wharf.). But a contract between a city and a street railway for the exclusive use of the streets for thirty years was upheld in Iowa, even though no statute expressly authorized the granting of such a privilege. Des Moines Street R. Co. v. Des Moines Broad-Gauge Street Ry. Co., 73 Iowa, 513.

The foregoing are cases where no express statute authorized a town or city to grant exclusive privileges to either a person or company. But suppose a statute authorizes a city to grant to a company an exclusive right to occupy a street, what then?

In Connecticut a statute did authorize directly a gas company to lay its pipes in the streets of Norwich, to the exclusion of all other gas companies. No duty of supplying the public with gas was imposed. So much of the statute as gave an exclusive right, and was a restriction upon the free manufacture and sale of gas, was held to be a monopoly and void. The court also held a resolution of the town giving such right to be also void.

The court referred to those instances where the crown granted a franchise to build a bridge or maintain a ferry and collect tolls for their use, and said that unless the grant required the grantee to serve the pub. lic, there was no consideration for the grant, and it was void. Arguing in this line, the court proceeds to say: "It is the duty as well as the prerogative of the government to provide necessary and convenient roads and bridges; and, to enable it to accomplish this object, it has everywhere what is called 'the right of eminent domain;' the right over individual estates to resume them for this and other public purposes. Such a prerogative connected with a corresponding duty, with the power to execute it by the exercise of the right of eminent domain, necessarily implies that it belongs to the government to determine what improvements are of sufficient importance to justify the exercise of the right, and when and how it shall be exercised; and if a particular bridge or ferry is considered sufficient for a particular locality, it may stipulate that within such reasonable limits the particular bridge or ferry tolls shall not be diminished by any other improvement of the sort. But it is no part of the duty of the government to provide the community with lights in their dwellings any more than it is to provide them with the dwellings themselves or any part of the necessaries or luxuries which may be deemed important to the comfort or convenience of the community. And if it be assumed that there would be no impropriety in the lighting of the streets under the control and direction of the sovereign power, this would be merely as a regulation of police or an incident to the duty to provide safe and convenient ways. And in this case the power to provide for lighting the streets is of no importance, because nothing was done to secure the object, unless the plaintiffs chose to assume it; and whether they would do so, would probably depend upon whether it could be made profitable. As, then, no consideration whatever, either of a public or private character, was reserved for the grant; and as the business of manufacturing and selling gas is an ordinary business, like the manufacture of leather or any other article of trade, in respect to which the government has no exclusive prerogative, we think that so far as the restriction of other persons than the plaintiff from using the streets for the purpose of distributing gas by means of pipes can fairly be viewed as intended to operate as a restriction upon its free manufacture and sale, it comes directly within the definition and description of a monopoly; and although we have no direct constitutional provision against a monopoly, yet

the whole theory of a free government is opposed to such grants, and it does not require even the aid which may be derived from the Bill of Rights, which delares that no men or set of men are entitled to exclusive public emoluments or privileges from the community', to reuder them void. * * * While then we are not called upon to question the authority and power of the Legislature to grant to the plaintiff the right to lay down their own pipes for the distribution of gas through the streets for their own private purposes, we think, considering that the streets, subject to the public easement, are private property, that it does not possess the power to exclude others from using them for similar purposes." Norwich Gas-Light Co. v. Norwich City Gas Co., 25 Conu. 19. This case must be considsidered as shaken by the one reported in 50 Connecticut, 1, elsewhere referred to.

In Wisconsin the Legislature granted to a company the exclusive privilege of manufacturing and supplying gas in the city of Milwaukee, and this act was held valid. Said the court: "It is claimed, or rather suggested, that even the Legislature could not confer this exclusive right upon the defendant to manufacture and sell gas in the city of Milwaukee. But we are not aware of any constitutional principle which is violated by the Legislature granting such an exclusive franchise. It is true that it may create a monopoly, preveut any thing like a free and healthy competition in the supply of gas to consumers, and thus operate to the detriment of the public. But suppose this is all conceded; upon what ground can the court say such legislation is unconstitutional? Of course the whole matter, under our Constitution, is under the control of the Legislature, which can take from the defendant this exclusive privilege whenever it sees fit to do so The public concern, in having some competition in the supply of gas, is by no means without a remedy. It can appeal to the Legislature to withdraw this exclusive right which it has conferred upon the defendAnd it is but fair to assume, that whenever the monopoly becomes oppressive, the Legislature will repeal the special privilege it has granted. At all events, it is sufficient to say that the remedy is with the Legislature, which has ample authority to do what may be for the best interests of the citizens of Milwaukee." State v. Milwaukee Gas-Light Co., 29 Wis. 454; S. C., 9 Am. Rep. 598.

ant.

In Louisiana the Legislature granted to a gas company the exclusive right, for fifty years, to lay pipes in the streets of the city of New Orleans and furnish gas to the inhabitants of the city. Pursuant to this statute the company laid pipes, erected gas-works, and supplied gas for years. Afterward the Legislature granted to another company the right to lay pipes and furnish gas in the same city. The first company applied for and obtained an injunction restraining the second company upon the ground that the second grant infringed upon the first grant, which had become, by performance, a contract protected by the Constitution of the United States, just as the grant and performance of an exclusive franchise to build a bridge or erect a ferry becomes unrevokable. By such a grant however the court said the State did not part with its police power and duty of protecting the public health, the public morals and the public safety, as the one or the other may be affected by the exercise of that franchise by the grantee; and the State could, by the exercise of the right of eminent domain, pay for aud recover back the franchise granted. New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; reversing 4 Woods, 90.

The same court held to the same rule with respect to an exclusive grant to supply water to the city of New Orleans, and that the grant was violated by a grant to an individual in the city of the right to supply his premises with water by means of a pipe or pipes so laid.

New Orleans Water-Works Co. v. Rivers, 115 U. S. 674; reversing 4 Woods, 134; St. Tammany Water-Works v. New Orleans Water-Works, 120 U. S. 64; affirming 4 Woods, 134. So the same rule was applied to a gas company created by the Kentucky Legislature; even a stronger decision was made, it being held that a clause in the Constitution of that State that all freemen, when they form a social compact, are equal, and that no man or set of men are entitled to exclusive, separate public emoluments or privileges from the community, but in consideration of public services." The charter was granted in 1838. In 1856 the Legislature provided that thereafter "all charters and grants of and to corporations, or amendments thereof, shall be subject to amendment or repeal at the will of the Legislature, unless a contrary intent be therein expressed." In 1869 this charter of 1838 was amended, granting in such an amendment an exclusive right to occupy the streets of Louisville. In 1872 an act was passed authorizing another gas company to lay its pipes, with the consent of the city council, in the streets, and to furnish gas to the inhabitants. This latter act was held void, because it was clear that the act of 1869 gave the company the right to continue to enjoy the franchise it then possessed for the term named therein without being subject to have its charter in that respect amended or repealed at the will of the Legislature. Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683.

A decision similar to the decision of the United States Supreme Court had been previously rendered by the Supreme Court of Louisiana. Crescent City GasLight Co. v. New Orleans Gas-Light Co., 27 La. Ann. 138. See Hovelman v. Kansas City Horse R. Co., 79 Mo. 632.

In Missouri it was held that the Legislature had the power to authorize a gas company to occupy streets to the exclusion of all others, but not the power to authorize to exclusively vend gas for the same time in the city. A grant of a power to thus vend gas was prohibited both by the common law and by a clause in the Constitution prohibiting the granting of special privileges. St. Louis Gas-Light Co. v. St. Louis Gas, Fuel and Power Co., 16 Mo. App. 52.

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A city was authorized generally "to contract with any" water-works corporation located within the city for "supplying with water the streets, alleys, lots, squares and public places in" the city. The city entered into a contract with such a corporation for water, to run twenty-five years. The court declared that the city had no power to make a contract for any such a period of time. City of Brenham v. Brenham Water Co., 67 Tex. 542. So a contract between a city and a water-works company to run twenty years was held void, even where no express prohibition was found in the charter or other acts of the Legislature; and this was held true, though the grant did not prevent other people selling water to private citizens. Davenport v. Kleinschmidt, 6 Mont. 502.

But the Legislature may make such a grant, or authorize a city to do so, it is held, in Tennessee, even though the Constitution forbid the granting of "perpetuities and monopolies," such a grant not being a monopoly. City of Memphis v. Memphis Water Co., 5 Heisk. 495. See Broadway, etc., Co. v. Hankey, 31 Md. 346 (Wharf.). So in New Jersey, without any special clause to that effect, a city's contract with a company to supply water for the city as long as the company complied with the obligations of the contract, was upheld. It was claimed that a statute making it "lawful for the city council, by ordinance, to order the raising, and cause to be raised by tax, from year to year, such sum or sums of money as they shall deem expedient for defraying [among other things] the sup plying the said city with water," restricted the city's right to make a contract for a longer period than for

one year; but this was also denied. Atlantic City Water-Works Co. v. Atlantic City, 48 N. J. Law, 378. The city of Bridgeport entered into an agreement that a certain water-works company should have the exclusive right to lay pipes in its streets so long as it furnished a full supply of fresh water. This agreement was assigned, and the assignee expended large sums of money in putting in the works. This assignee was authorized by a special act of the Legislature to acquire all the rights of the assignor, "including the right to the sole and exclusive use of the public streets, etc., of the city of Bridgeport, for the purpose of laying pipes therein to conduct water into and about said city." An act of the Legislature, thirty years afterward, gave another company the right to lay pipes in and supply water to the same city. It was held, conceding that the city had no power in the first place to grant an exclusive right, yet the Legislature subsequently recognizing this claim of power and authorizing the assignee to acquire, by assignment, such exclusive right, and the assignee having accepted the provisions of the statute and performed that required of it, the statutes made a contract that the Legislature could not revoke or impair so long as the company supplied the city with an abundance of pure water; and the grant to a company thirty years after the first grant was an impairment of the contract. This was held true in the face of a provision in the charter reserving to the Legislature the power to recall the franchise at its pleasure, which, it was held, did not authorize the Legislature to impair the contract which the city had entered into for the exclusive use of its streets so long as it should supply the city with water. Citizens' Water Company of Bridgeport v. Bridgeport Hydraulic Co., 50 Conn. 1.

A statute giving a corporation the right to construct and maintain water-works within a city or town, containing a clause that "the right to have and enjoy the franchises and privileges of such incorporation, within the city covered by its charter, shall be an exclusive one," does not prohibit the Legislature passing a subsequent act authorizing the city to construct and supply the city and its inhabitants with water. Lehigh Water Company's Appeal, 102 Penn. St. 515; 13 W. N. Cas. 329; 31 Pitts Leg. Jour. 52; 40 Leg. Int. 52.

The Pennsylvania act of 1885, relating to natural gas, expressly prohibited any city or town granting to any natural gas company exclusive use of its streets. It was said of this act that it was "the duty of city councils to carry out the act in good faith by appropriate local regulations. Any ordinance or acts of the local authorities intended to give special favors to one or more companies, or to throw unreasonable obstructions in the way of new companies, is a violation of the letter and spirit of the act." The city of Pittsburgh gave permission to a company to lay its pipes under the streets. Another company, having lawfully begun the laying of pipes in the streets, was stopped by the city authorities and prevented laying its pipes across three streets. The company had many wells, and large quantities of gas were being wasted. Winter was approaching, and an ordinance of the city forbade any laying of pipe after November 15. If not permitted to complete the connection by laying across these three streets, the company would suffer great loss. An injunction was granted restraining the city and prohibiting its officials interfering with the execution of the work. People's Natural Gas Co. v. Pittsburgh, 1 Penn. C, C. 311.

A very different view was taken by another nisi prius court of this act of 1885. A city by ordinance granted the right to a company to enter upon its streets and supply the citizens with natural gas, requiring the work to be begun at a fixed time, and the gas to be introduced within fifteen months, and also provided that no other privilege shall be given by the city authori

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ties for a similar purpose, for a period of two years from the date of its passage." The company expended large sums in the prosecution of the work; and before the end of the fifteen months the city granted the right to lay pipes and supply gas within the city to another company. Upon a presentation of these facts the nisi prius court granted an injunction to continue during the time allotted for the construction of the works by the first company, holding, seemingly, that the ordinance granting an exclusive privilege for two years was not prohibited by the act of 1885, but was a regulation of the time and manner of the occupancy of the streets. Meadville Natural Gas Co. v. Meadville Fuel Gas Co., 1 Penn. C. C. 448. On appeal however the case was reversed on the ground that the grant of an exclusive privilege for two years was a violation of the statute. Appeal of Meadville Fuel Gas Co., 4 Atl. Rep. 733.

Where a company had obtained the privilege under the act of 1885 to pipe the town for natural gas and had supplied gas for a time at a reasonable price, with assurance of continuance, and then secured a monopoly by terms made with competing companies, and demanded excessive rates, threatening to shut off the gas unless the increased price was paid, an injunction was granted to compel it to supply the gas until evidence was produced to show whether the increased price was unreasonable or not. Waddington v. Allegheny Heating Co., 6 Penu. C. C. 96; Sewickley Borough v. Ohio Valley Gas Co., id. 99.

Courts construe grants of an exclusive character very strictly; and unless the language of the grant squarely shows the conferring of an exclusive right, they will not hold that a subsequent grant of a like right is in conflict with the first. Thus an exclusive grant of a right to supply "heat to the public from gas within the city of Pittsburgh" was held not to be in conflict with a grant "for the purpose of supplying heat to the public within the city of Pittsburgh by means of natural gas conveyed from such adjoining counties as may be convenient." Emmerson v. Commonwealth, 108 Pena. St. 111; 32 Pitts. Leg. Jour. 273; 42 Leg. Int. 81. A court of Common Pleas of the same State had previously held that a charter "for supplying light and heat by means of natural gas," in a certain city, did not conflict with the charter of another company for "the manufacture and supply of gas for fuel heat" at the same place, both grants being exclusive. Erie Mining and Natural Gas Co. v. Gas Fuel Co., 15 W. N. Cas. 399.

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Before cable roads were known, the Legislature of Nebraska granted to a company the exclusive right for fifty years to "operate horse railways within the city of Omaha." In 1877, ten years after the first grant, the Legislature grauted to any company, with the consent of the inhabitants of the city, the right to construct and operate "a street railroad; and a company having obtained the right by vote, built a "cable street railroad" in Omaha. The first company sought to enjoin the second company, but the court declined to do so, saying: "The initial and important question is whether a cable tramway is within plaintiff's exclusive grant of a right to build, erect and operate horse railways. If the grant were made to-day [1887] it could not seriously be contended that it was so included. There is such a clear and recognized distinction between borse railroads and cable roads, that applying the ordinary rules for the construction of legislative grants, neither kind of road would be included within a grant of the other. The contention however is that at the time of this grant cable roads were practically unknown; that the only form of street railways was the horse railway; that the terms 'street railroad' and horse railroad' were in common parlance used to describe the same thing; that in construing the grant we are to place ourselves back to the time at which it

was made, and this term 'horse railroad' being then used interchangeably for the same thing, we are to suppose that the Legislature meant by the use of one term all that it would have meant by the use of the other, and that therefore all that would to-day be included within either term was within the scope of the grant. The rule for the construction of legislative grants is well settled. They are to be construed against the grantee and in favor of the public, and nothing passes unless it is obvious that the intent was that it should pass." "A cable road is not more different from a horse railroad than a steam railway is from an electric railway, and yet would it be seriously contended, that if at the date of this grant the plaintiff had received a like grant of an exclusive right to construct and operate a steam railroad between Omaha and Lincoln, that exclusive right would prevent the construction of an electric railway between the two places? Would a grant to construct even a street railway carry with it the right to construct and operate an elevated road? My conclusion is that the term 'horse railway' was not used in the grant as signifi cant of any other form of street railway than that which is now known, strictly speaking, as a horse railroad; nor is this conclusion shaken by the argument made by plaintiff as to the inference from the two provisions in the charter prohibiting the running of locomotives or cars propelled by steam, or the cars of any other railroad company, on the tracks of plaintiff." An injunction was refused. Omaha Horse Ry. Co. v. Cable Tramway Co., 30 Fed. Rep. 324. See Des Moines St. Ry. Co. v. Des Moines, etc., Ry. Co., 73 Iowa, 513.

So where a corporation secured the exclusive right of supplying Mobile with water "from Three-Mile creek," which was the most accessible source for the city's water supply, it was held that this did prevent the city granting to another company the right to supply the city with water taken from any other source than Three-Mile creek. Stein v. Bienville Water Supply Co., 34 Fed. Rep. 145.

A charter authorized a company to take water from a certain pond for the purpose of supplying a town with water for domestic purposes and extinguishment of fire, and forbade those who had mill privileges on the pond to cut below the pipes of the company or withdraw the water or obstruct the works. It was held that this did not give the company the exclusive right to the water of the pond for the purposes designated; and the Legislature could grant to another company the right to take water from the same pond. Rockland Water Co. v. Camden, etc., Water Co., 80 Me. 544. So an exclusive grant to a gas company to light a city with gas and supply it to the inhabitants is not violated by a grant to a company to supply light in the same city by electricity. Saginaw Gas- Light Co. v. City of Saginaw, 28 Fed. Rep. 529.

But in New Jersey a different rule of interpretation prevailed than did in the foregoing cases. There a gas company was incorporated and authorized by statute to lay its pipes, with the consent of the abutting owners, in the streets of Jersey City. It did so, and then another company proceeded to do so without any legislative authority whatever. The first company sought and obtained an injunction against the second; and it was held that the grant of a franchise by the State is, by its own intrinsic force, and without express words, exclusive against all persons but the State, and that any attempt to exercise like rights and privileges without legislative authority is a fraud and an unwarrantable usurpation of power." Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242.

A city charter granted a city the right to "exercise and enjoy all rights, immunities, powers and privileges appertaining to a municipal corporation," and to "license, tax and regulate hackney carriages, omnibuses" and the like. This was held not to confer on the city

power to grant to an individual "the exclusive privilege and franchise of running for hire omnibuses for the purpose of conveying persons, passengers and travellers, and their baggage upon the streets of the city to and from the hotels, steamboat landings and railroad stations," upon condition that he furnish such vehicles at specified rates. Logan v. Pyne, 43 Iowa, 524; S. C., 22 Am. Rep. 261. So a contract with a town to build a market-house, giving the town control of it for ten years, in consideration of a receipt by the builder of the rents, the town to superintend it and permit no other market-house to be built or used, nor certain specified articles to be sold elsewhere in the village during the ten years, was held void. Gale v. City of Kalamazoo, 23 Mich. 344; S. C., 9 Am. Rep. 80. A power in a city to "lay out, make, open, widen, regulate and keep in repair all streets, roads, bridges, ferries, wharves, docks, piers and slips "does not confer power upon it to grant to others an exclusive privilege to establish and maintain a ferry. Minturn v. Larue, 23 How. Pr. 435; Montjoy v. Pillow, 64 Miss. 705.

In Kentucky it is said that the State cannot part with its police power, and a surrender of its power to protect the public health, the public morals, the public peace, the public safety, of the citizen would violate that fundamental principle, the promotion of the peace, the public safety, happiness and security of its citizens, which is the basis of all governments, and would tend to revolution and anarchy. "The power therefore cannot be surrendered. The State however and its mu. nicipalities 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 competent and trusty persons to take the matter in charge, under the supervision and control of the State or city." It was therefore beld that the city could enter into a contract with an individual for five years, giving him the exclusive privilege to remove the carcasses of dead animals from the streets; and that during that five years she could not give the right to another; and an injunction was granted to prevent the violation of the contract. City of Louisville v. Weible, 84 Ky. 290.

A statute of Illinois authorized the city of Chicago, by its common council, "to regulate and control the

v. Stelley, 7 id. 102. Under a statute authorizing it "to establish market-houses and to regulate the vending of meat," a city may prohibit the sale of fresh meat within the city, in less quantities than the quarter, except by a lessee of the butcher's stall of a market-house. City of St. Louis v. Jackson, 25 Mo.

37; City of St. Louis v. Weber, 44 id. 547; City of Bowling Green v. Carson, 10 Bush. 64; Village of Buffalo v. Webster, 10 Wend. 100; Bush v. Seabury, 8 Johns. 418.

But an ordinance, under a general power to establish and regulate markets, which prohibited the sale of vegetables at any place but the market during market hours, was held void as to a regular grocer engaged in selling them at his established place of business. Caldwell v. City of Alton, 33 Ill. 417. And the principle of this decision was afterward extended to the sale of meat. City of Bloomington v. Wahl, 46 Ill. 489. See Tugman v. City of Chicago, 78 id. 405, and Bethune v. Hughes, 28 Ga. 560. W. W. THORNTON.

INDIANAPOLIS, IND.

BANKS-COLLECTIONS-INSOLVENCY.

NEW YORK COURT OF APPEALS, NOV. 26, 1889. NATIONAL BUTCHERS AND DROVERS' BANK V. HUBBELL.*

A firm of bankers received from plaintiff notes and checks indorsed for collection, but before collecting them failed, and made an assignment to defendant for the benefit of its creditors. These notes and checks were afterward collected by defendant as assignee. Held, that the notes and checks never became the property of defendant's assignor, and did not pass to defendant under the assignment, and defendant became personally liable to plaintiff for the amount so collected, though he had expended it in payment of his assignor's debts, in good faith, and without notice of any claim on the part of plaintiff. Nor is the assignee relieved by the fact that he paid the money out under an order of the county court. Plaintiff was not guilty of laches where it made demand on defendant sixteen days after hearing of the assignment to him.

PPEAL from a judgment of the General Term,

slaughtering of all animals in the city, or within four A Fourth Department, affirming a judgment in

miles thereof, intended for consumption or exposed for sale in the city, and to enforce any regulation, contract or law heretofore made on the subject." The city entered into an arrangement with a firm, by ordinance, which was accepted by the firm, whereby a particular building was designated for slaughtering of all animals intended for sale or consumption within the city, granting to the firm the exclusive right to have, for a specified period all such animals slaughtered at their establishment, they to be paid a specified sum for the privilege by all persons exercising the calling of slaughtering animals. The ordinance was held void because it created a monopoly, not authorized by the statute. City of Chicago v. Rumpff, 45 Ill. 90; S. C.,

92 Am. Dec. 196.

While a city may prohibit the carrying on of manufactures dangerous in causing fires or explosions, yet it cannot restrain a particular citizen from so doing and permit all others to do. Mayor, etc., of City of Hudson v. Thorne, 7 Paige Ch. 261.

But it has been held, returning to the subject of markets, that a city, under a general power to regulate markets, has the power to authorize au individual to erect a building upon private lands as a market-house, to lease or rent the rooms or stalls therein for a mar ket; to declare such place a public market; to dictate the manner of conducting markets therein; to exact reasonable rates of rents, and to protect him in the exclusive privilege of such market. Le Claire v. City of Davenport, 13 Iowa, 210; overruling City of Davenport

favor of the respondent, Hubbell, entered upon the decision of a single judge at Special Term. The following are the material facts, as found by the justice trying the cause. The plaintiff is a duly constituted banking corporation, located and doing business in the city of New York. On and for many years prior to December 9, 1884, the defendants, J. Formau and Alfred Wilkinson, were copartners, doing business under the firm name of Wilkinson & Co., as private bankers at the city of Syracuse, N. Y. For a number of years prior to December 9, 1884, the plaintiff had been accustomed to forward to the firm of Wilkinson & Co., for collection, checks, drafts and notes belonging to it, and made payable at different places, at the city of Syracuse and vicinity, the firm being the correspondents of the plaintiff in that portion of the State. The course of business pursued by the plaintiff and the firm of Wilkinson & Co. was as follows: The plaintiff, upon receiving checks, drafts and notes, payable at Syracuse, or its vicinity, made upou such paper an indorsement in the following form: "Pay Wilkinson & Co., or order, for coll. for account of National Butchers' & Drovers' Bank of the city of New York. W. H. Chase, Cash." The plaintiff thereupon inclosed said checks, drafts and notes in a letter addressed to the firm of Wilkinson & Co., which was in the following form: "National Butchers & Drovers' Bank, N. Y., 188 Messrs. Wilkinson & Co.

* Reversing 49 Hun, 610.

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