comply with conditions imposed in respect to quantity or quality cannot be taken advantage of by private consumers,1194 but there are cases to the contrary.1195 § 921. Licenses or privileges of an exclusive nature. The licenses or privileges considered in the preceding sections are not those which grant to the licensee the exclusive right of carrying on the business or occupation designated within the limits of the corporation granting the privilege or making the contract. In the following sections will be considered grants, licenses or privileges by or through which private corporations or individuals secure the exclusive right to conduct the business named or supply commodities designated. The subject is readily divided into those grants which give an exclusive possession and occupation of the public highways for the purposes named and those which give the exclusive right of supplying certain commodities, principally water and light, to the public corporation itself, or, in other words, an exclusive contract for the sale of a specified commodity. The presumption is against the existence of an exclusive grant.1196 140 Mo. 145, 39 S. W. 768. But see St. Cloud v. Water, Light & Power Co., 88 Minn. 329, 92 N. W. 1112. 1194 Fowler v. Athens City Waterworks Co., 83 Ga. 219, 9 S. E. 673; Davis v. Clinton Water-works Co., 54 Iowa, 59; Ferris v. Carson Water Co., 16 Nev. 44; Eaton v. Fairbury Water-works Co., 37 Neb. 546, 56 N. W. 201, 21 L. R. A. 653; Gorrell v. Greensboro Water Supply Co., 124 N. C. 328, 46 L. R. A. 513. Farnham on Waters, § 160b. 1195 Mott v. Cherryvale Water & Mfg. Co.. 48 Kan. 152, 28 Pac. 989, 15 L. R. A. 375; Duncan v. Owensboro Water Co., 12 Ky. L. R. 35, 12 S. W. 557; Wainwright v. Queens County Water Co., 78 Hun, 146, 28 N. Y. Supp. 987; Nichol v. Huntington Water Co., 53 W. Va. 348, 44 S. E. 290; Britton v. Green Bay & Ft. H. Water-works Co., 81 Wis. 48, 51 N. W. 84. 1196 Pearsall v. Great Northern R. Co., 161 U. S. 646. "An exclusive right to enjoy a certain franchise is never presumed, and unless the charter contain words of exclusion, it is no impairment of the grant to permit another to do the same thing, although the value of the franchise to the first grantee may be wholly destroyed. This principle was laid down at an early day in the case of the Charles River Bridge v. Warren Bridge, 11 Pet. 420, and has been steadily adhered to ever since." Gulf City St. R. Co. v. Galveston City R. Co., 65 Tex. 502. See, also, §§ 925, 926, post. § 922. Legal power to grant. The only legal objection worthy of consideration against the granting of an exclusive privilege is that there is thereby created a monopoly.1197 The original idea of a monopoly is that of an exclusive privilege of trade in a particular commodity within designated limits and for a specified time or as it has been said, the word has 1198 "Reference to a branch of business in which all had a right to engage and in which, as a matter of fact, many had previously been engaged." An exclusive license or contract is not because of the grant, a monopoly, as originally understood and as properly defined because it invariably includes the carrying on of a business or an occupation which before was not one capable of being enjoyed as a matter of universal or common right. The granting of an exclusive privilege for a supply of water, light, power, telephone or telegraph service again is not to be regarded as a monopoly because while as to some of these occupations the manufacture of the commodity may be an ordinary business yet the selling and distribution to the public is quite unlike the handling of other products.1199 The grant of a monopoly is usually regarded as illegal but, as already suggested, it has reference to the carrying on of a business or occupation 1197 Gale v. Village of Kalamazoo, 23 Mich. 344; Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249; Coombs v. MacDonald, 43 Neb. 632, 62 N. W. 41; City of Brenham v. Water Co., 67 Tex. 542, 4 S. W. 143; Altgelt v. City of San Antonio, 81 Tex. 436, 17 S. W. 75, 13 L. R. A. 383. A taxpayer without showing that he can obtain water at better terms is not a proper party to a proceeding to vacate a contract by a city with the water-works company which, it is claimed, is illegal because granting a monopoly. 1198 Beach, Monopolies, p. 360; Greenhood, Pub. Pol. c. 5, pp. 672 et seq.; Bl. Com. 159; 3 Coke, Inst., 181; Tiedeman, Limitations (2d ed.); Tiedeman, State & Fed. Control of Persons & Prop. § 27; Eddy, Combinations, c. 1; Spelling, Trusts & Monopolies, §§ 98-105; City of Walla Walla v. Walla Walla Water Co., 172 U. S. 1. Grant of a right to a water company considered and held not to create a monopoly. Gale v. Village of Kalamazoo, 23 Mich. 344. An exclusive privilege for the erection of a market house and its maintenance held to create a monopoly and therefore invalid. Davenport v. Kleinschmidt, 6 Mont. 502. Grant of an exclusive water contract held void as creating a monopoly. 7 Bacon's Abr. 22. 1199 New Orleans Gas Co. V. Louisiana Light Co., 115 U. S. 650. See, also, cases cited generally under this and the following section. which, because both of its character and the manner or place under which conducted should be enjoyed by all the citizens of a community as a matter of ancient and common right.1200 The granting of an exclusive privilege for the sale and distribution of the commodities or service just suggested is not to be regarded as the grant of a monopoly because as to nearly all these occupations they cannot be exercised or carried on by the public as a matter of common right.1201 A franchise in the strict sense of the 1200 Charles River Bridge v. Warren Bridge, 11 Pet. (U. S.) 567. "A monopoly is that which has been granted without consideration; as a monopoly of trade; or of the mauufacture of any particular article, to the exclusion of all competition. It is withdrawing that which is a common right, from the community, and vesting it in one or more individuals to the exclusion of all others." Gale v. Village of Kalamazoo, 23 Mich. 344. The grant of an exclusive market privilege held a monopoly and therefore invalid. The court in its opinion by Judge Cooley said in part: If a municipal corporation can preclude itself in this manner from establishing markets wherever they may be thought desirable, or from abolishing them when found undesirable, it must have the right also to agree that it will not open streets, or grade or pave such as are opened, or introduce water for the supply of its citizens, except from some specified source, or buy fire engines of any other than some stipulated kind, or contract for any public work except with persons named; and if it might do these things it is easy to perceive that it might not be long before the incorporation itself, instead of being a convenience to its citizens, would have been used in various ways to compel them to submit to innumerable inconveniences, and would itself constitute a public nuisance of the most serious and troublesome description. Individual citizens, looking only to the furtherance of their private interests, might, in various directions, engage it in permanent contracts, which, while ostensibly for the public benefit, should impose obligations precluding further improvements and depriving the town prospectively of those advantages and conveniences which the municipality was created to supply, and without which it is worthless." Parfitt v. Ferguson, 3 App. Div. 176, 38 N. Y. Supp. 466. A grant to a gas company that no other shall have the consent of the town to lay pipes or conductors during the term of the contract is void. Spelling, Trusts & Monopolies, § 100. "It is of the essence of a contract creating a monopoly that it confers upon one or more the exclusive privilege of doing that which others in the absence of such contract would have an equal right to do. It must be an invasion of a common right." 1201 Citizens' Gas & Min. Co. v. Town of Elwood, 114 Ind. 332, 16 N. E. 624. A municipal corporation may by its refusal to grant to word, must be given to a person or group of persons by the sov ereign before the business can be regarded even as a legal one.1202 Some of those mentioned above, it has been suggested, are to be regarded as an ordinary business but again they cannot be carried on because of the place and manner in which the business is usually conducted; the public highways are under the exclusive control of the sovereign or its delegated agencies and before the business can be carried on or conducted it is necessary to secure the permission of the state or of the sovereign for, as said by a case of the Supreme Court of the United States,1203 in construing the grant of an exclusive right to manufacture and distribute gas; "Legislation of that character is not liable to the objection that it is a mere monopoly, preventing citizens from engaging in an ordinary pursuit or business, open as of common right to all, upon terms of equality; for, the right to dig up the streets and other public ways of New Orleans, and place therein pipes and mains for the distribution of gas for public and private use, is a franchise, the privilege of exercising which could only be granted by the state, or by the municipal government of that city acting under legislative authority." While, therefore, the grant of an exclusive right to lay gas pipes in the streets of a city may be void as in the nature of a monopoly on account of the existence of the common right to manufacture gas, it will not be regarded as a monopoly because of the place and the manner in which the business must be necessarily conducted and carried on.1204 Public authorities unquestionably have the power to grant other companies the special privilege of laying gas mains and pipes practically give to one this exclusive right. Elliott, Roads & St. (2d ed.) § 748. "It is one thing to restrict the exercise of common right and quite another thing to create an extraordinary right or privilege and make it exclusive. In granting a right to use a highway for a street railway, the legislature makes that lawful which, but for the grant, would be unlawful, for no citizen has a right to use a highway in any other than the usual modes, except where the legislature authorizes him to do so." Tiedeman, State & Fed. Control of Persons & Prop. 128. See, also, cases cited in this and the following section. 1202 New Orleans Gas Co. V. Louisana Light Co., 115 U. S. 650; Crescent City Gas Light Co. v. New Orleans Gas Light Co., 27 La. Ann. 138. See, also, authorities cited generally in this and following section. 1203 New Orleans Gas Co. V. Louisiana Light Co., 115 U. S. 650. 1204 Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683, reversing 81 or deny at their discretion, with or without conditions, the right. to individuals or private corporations to obstruct, tear down or occupy and use the public highways. A recent author1205 has very concisely put the discussion and principle and the result of it as follows: "When, on the other hand, the state bestows upon one or more the privileges of pursuing a calling, or trade, the prosecution of which is not a common natural right because it cannot be prosecuted without the aid of a legal privilege, a lawful monopoly is created, but no right of the individual is violated; for, with the abolition of the monopoly thus created, would disappear all right to carry on the trade. The trade never existed before as a lawful calling. Such monopolies are valid, and free from all constitutional objections. The grant of exclusive franchises is a matter of relatively common occurrences, and is rarely questioned." § 923. Same subject continued. In the absence of a constitutional prohibition,1206 therefore, the principle almost universally obtains that under the conditions noted in the preceding section the state or subordinate agencies to whom the power has been granted can legally grant exclusive privileges, licenses or contracts because the rights of no private individual to carry on a lawful business have been by such action violated.1207 It is clearly within the power of the legis Ky. 263; City of Indianapolis v. Indianapolis Gas Light & Coke Co., 66 Ind. 396; City of Newport v. Newport Light Co., 84 Ky. 167; Peoples' Gas Light Co. v. Jersey City, 46 N. J. Law, 297; State v. Milwaukee Gas Light Co., 29 Wis. 460. See, also, New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 19. 1205 Tiedeman, State & Fed. Control of Persons & Prop. § 127. 1206 Constitutional provisions in Alabama, North Carolina, Tennessee and Texas. 1207 Richmond, F. & P. R. Co. v. Louisa R. Co., 13 How. (U. S.) 71; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683; Decatur Gas Light Co. v. City of Decatur, 120 Ill. 67, 11 N. E. 406, affirming 24 Ill. App. 544. The validity of an ordinance giving a gas company the perpetual and exclusive right to furnish the city with gas cannot be questioned in an action by the gas company for gas furnished the city under the ordinance. Baltimore Trust & Guarantee Co. v. City of Baltimore, 64 Fed. 153; Birmingham & P. M. St. R. Co. v. Birmingham St. R. Co., 79 Ala. 465. Constitutional provision prohibits |