laws for the purpose of manufacturing or supplying a certain commodity clearly does not deprive the corporation either of its existence or of its right to carry on the business for which it was organized wherever it may secure the desired permission. The absence of permission suspends merely the legal right to exercise a privilege in a particular place and municipal action in this respect whether negative or affirmative can have no other effect. 1051 In a Michigan case,' 1052 it has been held that "the exercise of the power of using streets for laying gas pipes is rather an easement than a franchise, and a similar power is used as often for private drainage and other purposes as for other general purposes. It is a matter peculiarly local in its character, and which should always be to a reasonable extent under municipal supervision to prevent clashing among the many convenient uses to which ways must necessarily be subjected, for water, drainage and other urban needs. But the rermission to lay these pipes does not differ in any respect from that required for laying railways over land, or ditches through it. It is not a state franchise, but a mere grant of authority, which, whether coming from pri

1051 Chicago City R. Co. v. People, 73 Ill. 541. "Where a company is incorporated by the legislature, with power to construct, maintain and operate a railway of a city, upon the consent of the city, in such manner and upon such conditions as the city may impose, and the city, by ordinance, grants the privilege of constructing and operating the same upon a certain street, the grant by the city is a mere license, and not a franchise. The franchise emanates from the state." Township of Plymouth v. Chestnut Hill & N. R. Co., 168 Pa. 181, 32 Atl. 19.

Nellis, St. Surface R. R. p. 55. "The franchises of a railroad corporation are rights or privileges which are essential to the operation of the corporation, and without which its road and works would be of little value; such as the fran

chises to run cars, to take tolls, to appropriate earth and gravel for the bed of its road, or water for its engines, and the like. They are positive rights or privileges, without the possession of which the road of the company could not be successfully worked. There are certain other privileges, too, which are merely licenses, and not franchises, as where a corporation has a specific power to construct, maintain, and operate a railroad in a city, subject however to the consent of the city, and in such manner and upon such conditions as the city may impose; if the city, by ordinance, grants the privilege of constructing and operating the railroad upon a certain street, the grant by the municipality is a mere license and not a franchise."

1052 People v. Mutual Gaslight Co., 38 Mich. 154.

vate owners, or public agents, rests in contract or license, and in nothing else." In New York it has been held, however, that the grant of the right to occupy highways is more than a mere license or privilege.1053 That, as said in the case cited, "It is true that the franchise comes from the state but the act of the local authorities who represent the state by its permission and for the purpose constitutes the act upon which the law operates to create the franchise.'

§ 897. Source of authority.

The state is the ultimate and original source of power in respect to the establishment, maintenance, and use of highways.1054 Any lawful permission, whatever it may be called, must proceed from the state legislature and the validity of grants is determined by the constitution and other tests applied to all legislation.1055 Special acts cannot be passed where the constitution forbids.1056 The legislature can act in the granting of permission independent of subordinate governmental agencies of the state 1057 though the tendency of later years which is well grounded in reason is for the state to confer upon local municipal authorities the right to represent and to act for it in the granting of permission for the occupation or use of the public highways.1058 The power, how

1053 People v. Deehan, 153 N. Y. 528, 47 N. E. 787.

1054 City of Knoxville v. Africa (C. C. A.) 77 Fed. 501; Chesapeake & P. Tel. Co. v. Baltimore & O. Tel. Co., 66 Md. 399; Jersey City & B. R. Co. v. Jersey City & H. Horse R. Co., 20 N. J. Eq. (5 C. E. Green) 61; Jersey City Gas Co. v. Dwight, 29 N. J. Eq. (2 Stew.) 242; Barhite v. Home Tel. Co., 50 App. Div. 25, 63 N. Y. Supp. 659. A city has no rights in its streets which it can sell to a telephone or telegraph company desiring to use them since their exclusive dominion resides properly in the state and the telephone and telegraph companies are granted by laws of 1890, c. 566, § 102, the right to use public streets and highways. Beekman v. Third

Ave. R. Co., 153 N. Y. 144, 47 N. E. 277, affg. 13 App. Div. 279, 43 N. Y. Supp. 174; State v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262; Pennsylvania R. Co. v. Greensburg, J. & P. St. R. Co., 176 Pa. 559, 35 Atl. 122, 36 L. R. A. 839; Allen v. Clausen, 114 Wis. 244, 90 N. W. 181; Joyce, Elec. Law, § 143.

1055 Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610; City of Hannibal v. Missouri & K. Tel. Co., 31 Mo. App. 23.

1056 Lewis v. Moore, 54 N. J. Law, 121, 22 Atl. 993. Act 1876 (Supp. Rev. 650) not void as special legislation.

1057 Abbott v. City of Duluth, 104 Fed. 833.

1058 City R. Co. v. Citizens' St. R. Co., 166 U. S. 557; Buckner v. Hart,

ever, when exercised by municipal or other subordinate public corporations, must be expressly granted or appear by indisputable implication.1059 The rule ordinarily obtains that a general grant of power to municipal corporations to light streets and public places will not authorize them to grant exclusive privileges or

licenses to private persons to occupy and use public highways for the purpose of constructing and operating lighting plants.1060

As a general rule, the control of highways is vested in the local authorities within whose jurisdiction they may be located. This is true as a matter of convenience and also because of the principles of local self-government and regulation in respect to local af fairs which so universally obtain.1061 The action of local authorities, however, cannot create a lawful right contrary to the constitution or under an unconstitutional act 1062 or prevent a corporation from exercising powers granted by the state in respect to particular localities where their action is not necessary.1063 The

legislature may directly authorize public utility corporations to exercise all of their lawful powers and privileges within the limits of the state and independent of subordinate public corporations and irrespective of the fact that the power may have been already granted to them to control and regulate public highways within their limits.106 The question of municipal consent or the right of a municipality to act is one dependent upon the language of the statutes under which the private corporation is proceeding. It might be suggested, however, that the courts favor, in cases of doubt, the necessity of action by municipal authorities in respect to the use of streets over which they have control.1065

Federal acts relative to post roads. Congress has given, under the post roads Act,1066 the right to construct, maintain and operate lines of telegraph through or over any portion of the public domain of the United States over and along any military or post roads then existing or thereafter to be established as such, and over, under or across navigable streams or waters of the United States. Under this authority it is lawful for telegraph companies to avail themselves of the privileges granted without the con

1084 Abbott v. City of Duluth, 104 Fed. 833; City of Atlanta v. Gate City Gaslight Co., 71 Ga. 106; Consumers' Gas Co. v. Huntsinger, 12 Ind. App. 285, 40 N. E. 34; City of Louisville v. Louisville Water Co., 105 Ky. 754, 49 S. W. 766; St. Louis R. Co. v. South St. Louis R. Co., 72 Mo. 67; Jersey City Gas Co. v. Dwight, 29 N. J. Eq. (2 Stew.) 242; Potter v. Collis, 19 App. Div. 392, 46 N. Y. Supp. 471; City of Memphis v. Memphis Water Co., 52 Tenn. (5 Heisk.) 495; City of Montreal V. Standard Light & Power Co., 77 Law T. (N. S.) 115.

1965 Missouri v. Murphy, 170 U. S. 78; Detroit Citizens' St. R. Co. v. City of Detroit (C. C. A.) 64 Fed. 628, 26 L. R. A. 667, reversing 56 Fed. 867 and 60 Fed. 161; Louisville Trust Co. v. City of Cincinnati (C. C. A.) 76 Fed. 296; Philadelphia Co. v. Freeport Borough, 167 Pa. 279;

City of Philadelphia v. River Front R. Co., 173 Pa. 334, 34 Atl. 60; City of Houston v. Houston City R. Co., 83 Tex. 548, 19 S. W. 127.

Joyce, Elec. Law, § 353. "As a general rule, the control of the streets and highways is vested in the local governments, each of which may exercise such control and so regulate the use thereof in its own limits as will best subserve the interests of the particular community. So, also, the legislative authority to use the streets for the purpose of telegraph, telephone, electric light or street railway lines is generally conditioned upon the consent of the local authorities having control of the street or highways upon which it is proposed to construct such lines."

1066 United States Rev. St. §§ 5263 et seq.; Act July 24th, 1866, c. 230 (14 Stat. 221).