existence of this principle does not prevent the application of the rule above given. § 925. Manner in which granted. The power to grant an exclusive privilege or license must not only be expressly given as stated in the last section but the manner in which it is granted must strictly comply with the terms of that authority. The grant under such circumstances is a legislative and discretionary act and controlled by the various principles heretofore considered under the subject of legislative bodies. and their action.1216 An exclusive grant to be valid must not only, therefore, be authorized by the legislature but must also successfully pass all tests which determine the legality of legislation and which include a consideration in addition of the power to pass and determine the validity of specific action and also its subject-matter. 1217 1216 Louisville Bagging Mfg. Co. v. Central Pass. R. Co., 95 Ky. 50; Consumers' Gas & Elec. Co. v. Congress Spring Co., 61 Hun, 133, 15 N. Y. Supp. 624; Patton v. City of Chattanooga, 108 Tenn. 197, 65 S. W. 414. Private citizens suffering no injury not in common with the public generally have no status to call on the court to determine the validity of an ordinance granting an exclusive license to a telephone, telegraph or electric company. City of Houston v. Houston City St. R. Co., 83 Tex. 548, 19 S. W. 127; City of Brenham v. Water Co., 67 Tex. 542, 4 S. W. 143. "The validity of every contract a municipal corporation may assume to make must at least depend upon the validity of the law or municipal ordinance under which it is made. If the legislature had expressly authorized the making of the contract under consideration, it would doubtless be binding, unless there be some constitutional objecAbb. Corp. Vol. III — 12. tion to such a law-a matter which I will be considered hereafter-and the ordinance could not be held to operate considered with its acceptance as a contract, as a surrender of any power the legislature intended the city government to exercise at all times. The question would then have been determined by a power superior to that of the municipality-a power from which it derives all the power it has, and even its existence as a corporation." Allen v. Clausen, 114 Wis. 244, 90 N. W. 181. See §§ 497 et seq. 1217 Grand Rapids E. L. & P. Co. v. Grand Rapids E. E. L. & F. G. Co. 33 Fed. 659; Citizens' Water Co. v. Hydraulic Co., 55 Conn. 1, 10 Atl. 170; Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 91 N. W. 1081; Helena Consol. Water Co. v. Steele, 20 Mont. 1, 49 Pac. 382, 37 L. R. A. 412; Warsaw Waterworks Co. v. Village of Warsaw, 16 App. Div. 502, 44 N. Y. Supp. 876; Auchincloss v. Metropolitan El. R. Must expressly appear. It has already been stated that the presumption of law is against the existence of an exclusive grant or privilege and one must, therefore, be expressly granted before exclusive privileges be claimed under it.1218 Judge Brewer while on the Circuit Court, in a Kansas case,1219 said: "And if a direct grant from a legislature carries no implication of exclusiveness, why should it be presumed that the legislature intended to vest in a city the power to give exclusive privileges, when it has in terms granted no such power? Will the power to create mo nopolies be presumed unless it is expressly withheld? That would reverse the settled rule of construction, which is that noth Co., 69 App. Div. 63, 74 N. Y. Supp. 534; Baily v. City of Philadelphia, 184 Pa. 594, 39 Atl. 494, 39 L. R. A. 837; Wood v. City of Seattle, 23 Wash. 1, 62 Pac. 135, 62 L. R. A. 369. The publication of a proposed ordinance granting a street railway franchise is sufficient though it does not contain the names of the actual grantees or the amount of their bid. See §§ 497 et seq. See, also, Culbertson v. City of Fulton, 127 Ill. 30; Adrian Water-works Co. v. City of Adrian, 64 Mich. 584; City of Grand Rapids v. Grand Rapids Hydraulic Co., 66 Mich. 606; Atlantic City Water-works Co. v. Read, 50 N. J. Law, 665. 1218 Freeport Water Co. v. City of Freeport, 180 U. S. 587, affirming 186 Ill. 179, 57 N. E. 862; Jackson County Horse R. Co. v. Interstate Rapid Transit R. Co., 24 Fed. 306; Oakland R. Co. v. Oakland, B. & F. V. R. Co., 45 Cal. 365; Capital City Light & Fuel Co. v. City of Tallahassee, 42 Fla. 462, 28 So. 810; Carlysle Water, Light & Power Co. v. City of Carlysle, 31 Ill. App. 325. An exclusive contract though ultra vires is not void but voidable so far as it is executory. City of Rushville v. Rushville Natural Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321; City of Vincennes v. Citizens' Gas Light Co., 132 Ind. 114, 31 N. E. 573, 16 L. R. A. 485; North Baltimore City R. Co. v. City of Baltimore, 75 Md. 247, 23 Atl. 470; Detroit Citizens' St. R. Co. v. City of Detroit, 110 Mich. 384, 68 N. W. 304, 35 L. R. A. 859. Tallon v. City of Hoboken, 60 N. J. Law, 212, 37 Atl. 895. The same principle applied distinguishing as between a street, steam or commercial railroad. Hackensack Water Co. v. City of Hoboken, 51 N. J. Law, 220, 17 Atl. 307; Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167, 22 N. E. 381, 5 L. R. A. 546. A city council having the power to make ordinances, rules, regulations and by-laws for lighting the streets and public buildings of a city and to supply the city with water is not authorized to grant exclusive privileges. In re City of Brooklyn, 143 N. Y. 596, 38 N. E. 983, 26 L. R. A. 270; Center Hall Water Co. v. Borough of Center Hall, 186 Pa. 74, 40 Atl. 153. 1219 Jackson County Horse R. Co. v. Interstate Rapid Transit R. Co., 24 Fed. 306. ing in the way of exclusiveness or monopoly passes, unless expressly named. It will not do to say that the grant of general supervision and control of the streets carries with it, by implication, the power to give exclusive privileges; for that grant implies a vesting in the eity of continuous control. It is no authority for surrendering its constant supervision and management to any other corporation or individual. It implies that the city to-day, to-morrow, and so long as the grant remains, shall exereise its constant judgment as to the needs of the public in the streets, and not that it may to-day surrender to an individual or to a private corporation the right of determining a score of years hence what the public may then need. The city may to-day determine that one street railroad will answer all the wants of the public, and so give the privilege of occupying the streets to but a single company. Ten years hence its judgment may be that two railroads are needed. Where is the language in the charter which restricts it from carrying such judgment into effect by giving a like privilege to a second company? It is doubtless true, as counsel say, that capital is timid, and will not undertake such enterprises without abundant guaranties and undoubted security. But this suggests matters of policy, and presents considerations for the legislature. It does not aid in determining what powers have been granted, or in the construction of charters or ordinances. When the legislature deems that the public interests require that cities should be invested with power to grant exclusive privileges, it will say so in unmistakable terms, as it already has in some instances. Till then courts must deny the possession of such power." And a leading case 1220 in the Supreme Court of the United States on the subject of the power of a city to grant exclusive privileges and contract for rates states the rule as follows: "The rule which governs interpretation in such cases has been often declared. We expressed it, following many prior decisions, in Detroit Citizens' St. R. Co. v. Detroit R. Co., 171 U. S. 48, to be that the power of a municipal corporation to grant exclusive privileges must be conferred by explicit terms. If inferred from other powers, it is not enough that the power is convenient to other powers; it must be indispensable to them." 1220 Freeport Water Co. v. City ing 186 Ill. 179, 57 N. E. 862. of Freeport, 180 U. S. 587, affirm The absence of language giving rights of an exclusive character operates against such a claim 1221 although there are some cases which hold that through the grant of a license or privilege there arises an implied contract on the part of the city granting it not again to exercise its powers in this respect until the former expires, 1222 § 926. Grant strictly construed. The courts do not regard with favor grants for the exclusive occupation and use of public highways or contracts for the exclusive sale to the public of a particular commodity. The rule of strict construction, therefore, applies to all grants, licenses or contracts of this character and unless a right claimed clearly appears, its existence will be denied.1223 This rule will apply not 1221 Long Island Water Supply Co. v. City of Brooklyn, 166 U. S. 685; Skaneateles Water-works Co. v. Village of Skaneateles, 184 U. S. 354, affirming 161 N. Y. 154, 55 N. E. 562. "There is no implied contract in an ordinary grant of a franchise, such as this, that the grantor will never do any act by which the value of the franchise granted may in the future be reduced. Such a contract would be altogether too far reaching and important in its possible consequences in the way of limitation of the powers of a municipality, even in matters not immediately connected with water, to be left to implication. We think none such arises from the facts detailed." Westerly Water-works Co. V. Town of Westerly, 80 Fed. 611; Cunningham v. City of Cleveland, 98 Fed. 657; North Baltimore Pass. R. Co. v. North Ave. R. Co., 75 Md. 233; Atlantic City Water Co. v. Consumers' Water Co., 51 N. J. Law, 420, 17 Atl. 824; In re City of Brooklyn, 143 N. Y. 596, 38 N. E. 983, 26 L. R. A. 270; Boyertown Water Co. v. Borough of Boyertown, 200 Pa. 394, 50 Atl. 189; City of Brenham v. Water Co., 67 Tex. 542, 4 S. W. 143; City of Houston v. Houston City St. R. Co., 83 Tex. 548, 19 S. W. 127; Ogden City R. Co. v. Ogden City, 7 Utah, 207, 26 Pac. 288. 1222 Fidelity Trust & Safety Vault Co. v. Mobile St. R. Co., 53 Fed. 687; Citizens' Water Co. v. Bridgeport Hydraulic Co., 55 Conn. 1; Tyrone Gas & Water Co. v. Borough of Tyrone, 195 Pa. 566, 46 Atl. 134; Rutland Elec. Light Co. v. Marble City Elec. Co., 65 Vt. 377, 26 Atl. 635, 20 L. R. A. 821. An electric light company not having an exclusive contract to erect poles and string wires still has such a vested right to use its appliances that they cannot be infringed by another company stringing wires under a subsequent contract with the city. 1223 Stein v. Bienville Water Supply Co., 141 U. S. 67, affirming 34 Fed. 145; Bartram v. Central Turnpike Co., 25 Cal. 283; Haines v. Crosby, 94 Me. 212, 47 Atl. 137; only to the existence of the exclusive privilege or contract itself, but also to any of the minor details or conditions of the instrument.1 1224 An exclusive grant in case of doubt, to state the rule in another way, is construed against the grantee in favor of the grantor.1225 The principles of this section are not applied, however, to such an extent as to illegally deprive a grantee or licensee North Baltimore Pass. R. Co. v. North Ave. R. Co., 75 Md. 233; Western Union Tel. Co. v. Guernsey & S. Elec. Light Co., 46 Mo. App. 120. The grant of the right to erect poles and wires for supplying electric light does not impair the rights of a telegraph company under a prior grant. City of Plattsburg v. Peoples' Tel. Co., 88 Mo. App. 306. See, also, § 902, ante. 1224 Omaha Horse R. Co. v. Cable Tramway Co., 30 Fed. 324; Stein v. Bienville Water Supply Co., 34 Fed. 145; Birmingham Traction Co. v. Southern Bell Telep. & Tel. Co., 119 Ala. 144, 24 So. 731. Considering right to acquire through prior occupancy of a street by a telephone company as against an electric railway company. Reed v. Hanger, 20 Ark. 625; Los Angeles Water Co. v. City of Los Angeles, 55 Cal. 176; Tuebner v. California St. R. Co., 66 Cal. 171; City of Newport v. Newport Light Co., 11 Ky. L. R. 840, 12 S. W. 1040; Passaic Water Co. v. City of Paterson, 65 N. J. Law, 472, 47 Atl. 462. Ordinance construed and right of a private company to contract directly with the inhabitants of the town denied. Bly v. White Deer Mountain Water Co., 197 Pa. 80, 46 Atl. 929. See Joyce, Electric Law, §§ 165 et seq. 1225 Knoxville Water Co. v. City of Knoxville. The U. S. Supreme court October Term, 1905 (26 Sup. Ct. 224): "It is, we think, impor tant that the courts should adhere firmly to the salutory doctrine underlying the whole law of municipal corporations and the doctrines of the adjudged cases, that grants of special privileges affecting the general interests are to be liberally construed in favor of the public, and that no public body, charged with public duties, be held, upon mere implication or presumption, to have divested itself of its powers. As, then, the city of Knoxville cannot be held to have precluded itself by contract from establishing its own independent system of waterworks, it becomes unnecessary to consider any other question in the case. The judgment of that court dismissing the bill must be affirmed." Grand Rapids E. L. & P. Co. v. Grand Rapids E. E. L. & F. G. Co., 33 Fed. 659; Citizens' St. R. Co. v. Jones, 34 Fed. 579; Louisville Home Tel. Co. V. Cumberland, Telep. & Tel. Co. (C. C. A.) 111 Fed. 663, reversing 110 Fed. 593; Capital City Light & Fuel Co. v. City of Tallahassee, 42 Fla. 462, 28 So. 810; Wabash R. Co. v. City of Defiance, 52 Ohio St. 262, 40 N. E. 89; Emerson v. Com. 108 Pa. 111. Spelling, Trusts & Monopolies, § 100. "If there is any ambiguity or reasonable doubt, arising from the terms used by the legislative or granting body, as to whether an exclusive franchise has been con |