lature to determine who shall receive a franchise, in the strict sense of the word, under what terms, in what manner, and where the "making of any irrevocable grant of special privileges or immunities." California State Tel. Co. v. Alta Tel. Co., 22 Cal. 398; Riverside Water Co. v. Sargent, 112 Cal. 230; Des Moines St. R. Co. v. Des Moines B. St. R. Co., 73 Iowa, 513, 33 N. W. 610, 35 S. W. 602; Teach out v. Des Moines Broad-Gauge St. R. Co., 75 Iowa, 722, 38 N. W. 145; Hanson v. Hunter, 86 Iowa, 722; City of Newport v. Newport Light Co., 11 Ky. L. R. 840, 12 S. W. 1040; Smiley v. MacDonald, 42 Neb. 5, 60 N. W. 355, 27 L. R. A. 540. An exclusive contract for the removal of garbage is not in conflict with constitution, art. 3, § 15, forbidding the grant of exclusive privileges. Thrift v. Elizabeth City, 122 N. C. 31, 44 L. R. A. 427; Cincinnati St. R. Co. v. Smith, 29 Ohio St. 291. The city council of Cincinnati have no power to pass an ordinance giving a street railroad the exclusive right to operate its road on the street. Luzerne Water Co. v. Toby Creek Water Co., 148 Pa. 568, 24 Atl. 117; City of Memphis v. Memphis Water Co., 52 Tenn. (5 Heisk.) 495. See art. 41 Alb. Law J. 104, by W. W. Thornton on validity of grant to exercise an exclusive privilege in respect to the use of public highways. City of Memphis v. Memphis Water Co., 67 Tenn. (8 Baxt.) 587. City of Houston v. Houston City St. R. Co., 83 Tex. 548, 19 S. W. 127. The right is clearly recognized by the Texas Constitution of any city to give its consent to the use of its streets by street railroads. Parkersburg Gas Co. v. City of Parkersburg, 30 W. Va. 435, 4 S. E. 650. Neither under its charter nor the general statutes in relation to municipal corporations has the city of Parkersburg the power to grant a private corporation the exclusive privilege of using its streets and alleys for laying gas pipes and furnishing the city and its inhabitants with gas for thirty years. Clarksburg Elec. Light Co. V. City of Clarksburg, 47 W. Va. 739, 35 S. E. 994, 50 L. R. A. 142. A grant may be made to an intended corporation to be subsequently organized. Linden Land Co. v. Milwaukee Elec. R. & Light Co., 107 Wis. 493, 83 N. W. 851. A city may extend an existing franchise before its expiration. But see Board of Public Works of Denver v. Denver Tel. Co., 28 Colo. 401, 65 Pac. 35. Citizens' Gas Light Co. v. Louisville Gas Co., 81 Ky 263. The grant of an exclusive right to vend gas in a city is void under that provision of the Kentucky Constitution which declares that no set of men are enitled "to exclusive public emoluments or privileges from the community but in consideration of public services." New Orleans, C. & L. R. Co. v. City of New Orleans, 44 La. Ann. 748, 11 So. 77. Under its charter the city of New Orleans has no power to grant an exclusive franchise to a street railroad company. Washington Toll Bridge Co. v. Beaufort County Com'rs, 81 N. C. 491; Parkhurst v. Capital City R. Co., 23 Or. 471; Henderson v. Ogden City R. Co., 7 Utah, 199, 26 Pac. 286. A grant by a municipality to a street railway company of the exclusive right to use its it shall be exercised.1208 A grant or license though invalid either because of its exclusive character or the time of its existence streets is ultra vires. See, also, Beach, Monopolies, c. 8; Eddy, Combinations, §§ 17 et seq.; Spelling, Trusts & Monopolies, § 102; Thornton, Oil & Gas, §§ 441 et seq. 1208 Fanning v. Gregoire, 16 How. (U. S.) 524. Exclusive grant to operate a ferry construed, and while it is held that no court or board of county commissioners could subsequently grant another franchise, the legislature could do so. New Orleans Water-works Co. v. Rivers, 115 U. S. 674. "For, if it was competent for the state, before the adoption of her present constitution, as we have held it was, to provide for supplying the City of New Orleans and its people with illuminating gas by means of pipes, mains, and conduits placed at the cost of a private corporation, in its public ways, it was equally competent for her to make a valid contract with a private corporation for supplying, by the same means, pure and wholesome water for like use in the same city. The right to dig up and use the streets and alleys of New Orleans for the purpose of placing pipes and mains to supply the city and its inhabitants with water is a franchise belonging to the state, which she could grant to such persons or corporations, and upon such terms, as she deemed best for the public interests. And as the object to be attained was a public one, for which the state could make provision by legislative enactment, the grant of the franchise could be accompanied with such exclusive privileges to the grantee, in respect of the subject of the grant, as in the judgment of the legislative depart ment would best promote the public health and the public comfort, or the protection of public and private property." City of Laredo v. International Bridge & Tramway Co. (C. C. A.) 66 Fed. 246; Taylor v. Montreal Harbour Com'rs, 17 Rap. Jud. Que. C. S. 275. Giving to a syndicate for a term of forty years the exclusive use and occupation of certain wharves for construction of elevators and the carrying on the business of buying and shipping grain is not the grant of an illegal monopoly. Evans v. Hughes County, 6 Dak. 102, 50 N. W. 720. Political Code, c. 29, §§ 54 & 55, relative to the grant of ferry licenses or leases to the highest bidder and which further provides that when any lease has been granted, no other shall be given within two miles thereof, is valid. Detroit Citizens' St. R. Co. v. City of Detroit, 110 Mich. 384, 68 N. W. 304, 35 L. R. A. 859; Reid v. Trowbridge, 78 Miss. 542, 29 So. 167. The objection that a contract or lighting streets is void because exclusive can only be invoked by the city or one seeking a similar privilege. Patterson v. Wollmann, 5 N. D. 608, 33 L. R. A. 536; Cincinnati Gas Light & Coke Co. v. Village of Avondale, 43 Ohio St. 257, Ohio Rev. St. §§ 2478, 2485, prohibit the giving of exclusive privileges to any person for the construction or extension of gas works. See, as holding the same. State v. Cincin may still be regarded as a binding contract or privilege for that length of time or to the extent that is within the legal power of the grantor to give.1209 § 924. Must be express authority. It is necessary, however, to enable a municipal corporation. proper to grant an exclusive privilege or license that the authority should be expressly granted.1210 The same rule applies to all nati Gas Light & Coke Co., 18 Ohio St. 262. See Spelling, Trusts & Monopolies, c 9. But see the following cases where the right is modified because of constitutional provisions or for other reasons: Minturn v. LaRue, 23 How. (U. S.) 435; City of Chicago v. Rumpff, 45 Ill. 90; Long v. City of Duluth, 49 Minn. 280, 51 N. W. 913; Janeway v. City of Duluth, 65 Minn. 292, 68 N. W. 24; Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249; Iler v. Ross, 64 Neb. 710, 90 N. W. 869, 57 L. R. A. 895; Atlantic City Water-works Co. V. Consumers' Water Co., 44 N. J. Eq. 427, 15 Atl. 581. But see, in connection with this case, Atlantic City Waterworks Co. v. Atlantic City, 48 N. J. Law, 378, and Logan v. Pyne, 43 Iowa, 524. Brenham v. Brenham Water Co., 67 Tex. 542, 4 S. W. 143. 1209 Levis v. City of Newton, 75 Fed. 884. 1210 Grand Rapids E. L. & P. Co. v. Grand Rapids E. L. & F. G. Co., 33 Fed. 659. "To confer exclusive rights and privileges, either in the streets of a city or in the public highways, necessarily involves the assertion and exercise of exclusive powers and control over the same. Nothing short of the whole soveign power of the state can confer exclusive rights and privileges in public streets, dedicated or ac quired for public use, and which are held in trust for the public at large." Jackson County Horse R. Co. v. Interstate Rapid Transit R. Co., 24 Fed. 306; City of Detroit v. Detroit City R. Co., 56 Fed. 867; Logansport R. Co. v. City of Logansport, 114 Fed. 688; In re Robinson & City of St. Thomas, 23 Ont. 489; Birmingham & P. M. St. R. Co. v. Birmingham St. R. Co., 79 Ala. 465; Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 19; Capital City Light & Fuel Co. v. City of Tallahassee, 42 Fla. 462, 28 So. 810; City of East St. Louis v. East St. Louis Gas Light & Coke Co., 98 Ill. 415; Snyder v. City of Mt. Pulaski. 176 Ill. 397, 52 N. E. 62, 44 L. R. A. 407; Citizens' Gas & Min. Co. v. Town of Elwood, 114 Ind. 332, 16 N. E. 624; City of Indianapolis v. Indianapolis Gas Light & Coke Co. 66 Ind. 396; Rockland Water Co. v. Camden & R. Water Co., 80 Me. 544, 1 L. R. A. 388; Detroit Citizens' St. R. Co. v. City of Detroit, 110 Mich. 384, 68 N. W. 304, 35 L. R. A. 859. Long v. City of Duluth, 49 Minn. 280, 51 N. W. 913. Dickinson, Judge, in the opinion said: "It is hardly necessary to advert in this connection to the fact that municipal corporations have only such powers as are conferred by the legislature, and the same principle of strict construction which forbids that a subordinate public agencies.121 A state legislature, however, possesses the right to exercise all powers not prohibited by the constitution and an exclusive privilege may be granted by it even though the power does not affirmatively appear in the constitution which is its written source of authority and so long as it has not been there prohibited.1212 Not included within general grant to provide for comfort and welfare or regulate highways. It is customary in the grant of municipal charters in addition to specific grants of power to add what might be termed omnibus clauses which authorize in general direct grant of a franchise by the legislature be construed as exclusive, is applicable in the construction of powers delgated to municipal corporations with respect to such matters. The authority conferred upon such governmental agencies of the state to grant exclusive franchises or privileges must be as explicit and free from doubt as would be required if the franchise were created directly by the legislature." Thompson v. Ocean City R. Co., 60 N. J. Law, 74, 36 Atl. 1087; Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167, 22 N. E. 381, 5 L. R. A. 546; In re City of Brooklyn, 143 N. Y. 596, 26 L. R. A. 270; Beekman v. Third Ave. R. Co., 153 N. Y. 144, 47 N. E. 277, affirming 13 App. Div. 279, 43 N. Y. Supp. 174; State v. Cincinnati Gas Light & Coke Co., 18 Ohio St. 262; Smith v. Town of Westerly, 19 R. I. 437, 35 Atl. 526; Memphis City R. Co. v. City of Memphis, 44 Tenn. (4 Cold.) 406. A municipal corporation cannot by contract confer upon individuals the exclusive right of constructing and operating a street railway. Peoples' Pass. R. Co. v. City of Memphis (Tenn.) 16 S. W. 973; State v. City of Spokane, 24 Wash. 53, 63 Pac. 1116. But see Wood v. City of Seattle, 23 Wash. 1, 62 Pac. 135, 52 L. R. A. 369. Under Seattle city charter art. 4, § 22, the city has no power to grant an exclusive franchise for the use of any street. 1211 Jackson County Horse R. Co. v. Interstate Rapid Transit R. Co., 24 Fed. 306; Grand Rapids E. L. & P. Co. v. Grand Rapids E. E. L. & F. G. Co., 33 Fed. 659; Florida Cent. & P. R. Co. v. Ocala St. & S. R. Co., 39 Fla. 306, 22 So. 692. The general power conferred upon cities and towns to regulate streets does not authorize a municipal corporation to vest by contract in a street railway corporation an exclusive right to construct railroad tracks in the streets of the city for a period of ten years. Westerly Water-works Co. v. Town of Westerly, 80 Fed. 611. An exclusive contract cannot be created by acquiesence in an existing condition. Wright v. Nagle, 48 Ga. 367. The principle applied to the grant of an exclusive right to build and maintain a bridge. 1212 Wilmington City Ry. Co. v. People's R. Co. (Del.) 47 Atl. 245. The power of the legislature to revoke an exclusive license is coextensive with its power to grant and control the action of subordinate corporations. terms the public authorities to take such action as they deem necessary to provide for the general comfort, welfare and safety of the community; to regulate the use of public highways; to arrange for either a supply of water or light and in so doing to consent to the construction of the facilities which are necessary to accomplish these purposes. It has been repeatedly held that through the grant of any or all of these powers, a public corporation has no legal authority to give an exclusive license, privilege or contract to private persons, natural or artificial, for the use of the public highways and erection of a plant for the manufacture or distribution or both of these modern necessities. This rule has been well established by the great weight or authority.1213 The principle is also applied to the grant of privileges or licenses not exclusive in their character but which serve to furnish a supply of these same commodities or other service.1214 In previous sections 1215 it has been stated that the modern tendency of the state is to give subordinate public corporations a large degree of control over public property within their jurisdiction and to require the consent of the public authorities before private persons engaged in the business of supplying water, light, power or telephone, telegraph or transportation service, can legally occupy public highways or lawfully carry on their business. Even the 1213 American Water-works Co. v. Farmers' Loan & Trust Co., 73 Fed. 956, 20 C. C. A. 133; Saginaw Gas Light Co. v. City of Saginaw, 28 Fed. 529; State v. Towers, 71 Conn. 657, 42 Atl. 1083; Village of Ladd v. Jones, 61 Ill. App. 584; Greenville Water-works Co. v. City of Greenville (Miss.) 7 So. 409; Town of Kirkwood v. Meramec Highlands Co., 94 Mo. App. 637, 68 S. W. 761; Howell v. City of Millville, 60 N. J. Law, 95, 36 Atl. 691; Richmond County Gas Light Co. v. Town of Middletown, 59 N. Y. 228; In re City of Brooklyn, 143 N. Y. 596, 38 N. E. 983, 26 L. R. A. 270; Smith v. Town of Westerly, 19 R. I. 437, 35 Atl. 526; Arnold v. Price, 19 R. I. 437, 35 Atl. 526; City of Brenham v. Water Co., 67 Tex. 542, 4 S. W. 143. But see Andrews v. National Foundry & Pipe Works (C. C. A.) 61 Fed. 782; Jacksonville Elec. Light Co. v. City of Jacksonville, 36 Fla. 229, 18 S. E. 677, 30 L. R. A. 540; Heilbron v. City of Cuthbert, 96 Ga. 312, 23 S. E. 206; Hay v. City of Springfield, 64 Ill. App. 671; Arbuckle-Ryan Co. v. City of Grand Ledge, 122 Mich. 491, 81 N. W. 358; Oakley v. City of Atlantic City, 63 N. J. Law, 127, 44 Atl. 651; Tuttle v. Brush Elec. Ill. Co., 50 N. Y. Super. Ct. (18 J. & S.) 464; Ellinwood v. City of Reedsburg, 91 Wis. 131, 64 N. W. 885. 1214 See authorities cited under § 897, note 1059. 1215 See §§ 897, 898, ante. |