Generalized and divested of the special form which it assumes under a monarchical government based on feudal traditions, a franchise is a right, privilege, or power of a public concern, which ought not to be exercised by private individuals at their mere will and pleasure, but should be reserved for public control and administration, either by the government directly or by public agents, acting under such conditions and regulations as the government may impose in the public interest and for the public security. Such rights and powers must exist under every form of society."

Experience has shown that the truth of the matter is that the imposition of an occasional monopoly may be advantageous in the ordering of the industrial system. The policy of the grant of an exclusive franchise has appeared in various circumstances. More frequently than formerly this is the method taken by the modern State for dealing with the troublesome problem of the public utilities. For reflection has shown that many of the public works can be conducted with advantage only upon the basis of exclusive franchise. The telephone system is a conspicuous instance; in that a single system is the only basis upon which a satisfactory service can be rendered to the community. And in a less obvious case the waste by duplication of plants is so scandalous that the ultimate benefit to the community in giving an exclusive franchise to one gas company, for example, must be admitted when the futility of expecting any permanent competition has been so long exposed. Indeed it is now recognized by many advanced thinkers that it is necessary for the perpetuity of competitive conditions in general that in the particular instances of monopolistic conditions the State should proceed at times to establish a legal monopoly, and then apply to that situation strict regulation, such as the exigency demands.

16. Persistence of the class of public callings.

Thus the need of regulation has not ceased in modern times, nor has the law of public callings become a mere exceptional doctrine, an anomaly unfortunately lingering in the case of a single important occupation. During the nineteenth century the common carrier, after the introduction of the railways, became of such consequence in the industrial organization that the other public callings were overshadowed and have been at times almost lost to sight, while in the fifteenth century barber and surgeon, smith and tailor, innkeeper and victualler, carrier and ferryman were of more or less equal concern to the law. That these callings were put into a class by themselves, that an unusual law was applied to them, that this was sternly enforced, and that it was elaborately worked outall these things cannot be without their modern significance. The common law persists from age to age, and though the instance of its rules may be seen to change as old conditions pass away and new conditions arise, its fundamental principles remain. The cases just under discussion are illustrations of the course of events. Barber, surgeon, smith, and tailor are no longer in common calling because the situation in the modern market does not require it; but innkeeper, victualler, carrier and ferryman are still in that classification, since even in modern trade the conditions require them to be so treated. The class of public callings is capable of indefinite extension whenever new conditions bring new employments within its scope.

§ 17. The introduction of improved highways by private enterprise.

Just before the beginning of the nineteenth century the need for transportation of persons and goods more quickly and more cheaply between distant communities began to outgrow the facilities for commerce then at the disposal of the public. The solution of this question became one of the most pressing eco

nomic problems of the early nineteenth century, engaging the attention of statesmen, as every great commercial problem must. The scheme gradually worked out was for a system of improved turnpikes all over the country supplemented by more frequent bridges, and between the most important markets the construction of canals and the development of existing waterways. The theory of the statesmen who dealt with the conditions under which these works of internal improvement should be constructed was of course that private enterprises were better than State ownership. However, they were willing to meet the need of the time for immediate construction of these expensive works by grants from the State treasury or by guaranty of the bonds of the private companies. Since these improved highways were considered like other highways, public in character and open to all, even though maintained by private companies which were given the right to charge tolls, the propriety of such State aid was apparent enough.

§ 18. Toll-bridges and turnpikes as examples.

Toll-bridges and turnpikes were from their institution treated as public in character because of their obvious status as highways. Some of the early cases were extraordinarily strict as is shown in the extreme case of Thompson v. Matthews. 10 The defendants were ordered to show cause why an injunction should not issue, restraining them from transporting or causing to be transported across the bridge from Harlæm across the Harlæm river any marble or stone in quantities exceeding at one time or in any one load the weight of two tons, until the further order of the court. The bill in the cause was filed by the owners and proprietors of the bridge.

The Vice-Chancellor said: "The motion for an injunction cannot be granted. The road across the bridge is undoubtedly

10 2 Edw. Ch. 212 (1834).

a highway, though all persons and carriages passing must pay a toll; but, still, it is a public highway. The affidavits in opposition take very much from the force of the allegations in the bill. But this is a case in which the parties have legal rights. The bridge is a public one. If persons take improper loads. and the bridge has been properly constructed, then the owners of it have a remedy by a special action on the case or in trespass for damage done; while, on the other hand, if passengers and their property should sustain an injury by a breaking from ordinary loads, the owners must respond in damages. The law affords a reciprocal remedy in all such cases; and I shall leave the parties to their legal right. It is true this court has jurisdiction to prevent irreparable injury; but the injury is not irreparable, where damages, as here, can be ascertained without difficulty, and compensation made in money. And I would observe, with respect to the tolls, that no equity arises from the circumstance of the complainants not being enabled to charge more than nine cents for a heavy load. This is a matter for the legislature; and the complainants will have an opportunity of applying for an amendatory act, raising their tolls, before the contract, which the defendants have entered into and which requires this large quantity of marble to be transported, shall have been completed.” 11

§ 19. Canals and waterways as illustrations.

Canal traffic was the most important feature in inland transportation before the era of the railways, and indeed it is still

11 A toll bridge is a public highway, as is held in many cases, a few of which are subjoined: Covington & Lexington Road Co. v. Sandford, 164 U. S. 596; 41 L. Ed. 566, 17 Sup. Ct. 198 (1896); McCleod v. Savannah, etc., R. Co., 25 Ga. 445 (1858); Bussey v. Gilmore, 3 Me. 191 (1824); Central Bridge Corp. v. Sleeper, 8 Cush. (Mass.) 324 (1851); State v. Hannibal, etc., R. Co., 97 Mo. 348, 10 S. W. 436 (1888); People v. San Francisco, etc., R. Co., 35 Cal. 606 (1868); Pittsburg, etc., Pass R'y Co. v. Point Bridge Co., 165 Pa. St. 37, 30 Atl. 511, 26 L. R. A. 323 (1894); Hasson v. Venango Bridge Co., 1 Pa. Dist. Rep. 521, 11 Pa. Co. Ct. Rep. 383 (1892).

a not inconsiderable item. It never seems to have been doubted that those who managed the canals were obliged to permit all who wished to pass upon payment of established tolls. The reason for this undoubtedly was that these canals were conceived of as highways. This is said squarely in one case involving the duty of the canal companies to serve all that apply. Buffalo Bayou Ship Channel v. Milby & Dow. 12 In that case the canal company turned a vessel back upon the ground that tugboat towing her owed tolls. The court ruled that this refusal was wrongful.

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Mr. Justice Walker said, upon the appeal: The relation which the plaintiffs and the defendant company occupy to the subject matter out of which arises the damage, must, we think, enter as an important element in determining the question presented. This water channel or cut, owned and controlled by the defendant under its charter from the State was a public highway for vessels beyond question; and as such the owners of all vessels had a right to regard and to treat it, using it at their pleasure, subject to the lawful conditions imposed upon them therefor. A toll bridge, built in pursuance of an act of the legislature, is a public highway; manifestly, this ship channel was so too.” 13

12 63 Tex. 492, 51 Am. Rep. 668 (1885).

13 In the following cases, among many others, canal companies are treated as public service companies: U. S. v. Ormsbee, 74 Fed. 207 (1896); Savannah & O. Canal Co. v. Shuman, 91 Ga. 400, 17 S. E. 937, 44 Am. St. Rep. 43, B. & W. 62 (1893); People v. Kankakee River Imp. Co., 103 Ill. 491 (1882); Sheldon v. New Orleans Canal Co., 9 Rob. (La.) 360 (1844); Stewart v. Lehigh Valley Ry., 38 N. J. Law, 505 (1875); Farnsworth v. Groot, 6 Cow. (N. Y.) 698, B. & W. 213 (1827); Pennsylvania Coal Co. v. Delaware Canal Co., 31 N. Y. 91, B. & W. 446 (1865); Com. v. Delaware Canal Co., 43 Pa. St. 295 (1862); McArthur v. Green Bay Canal Co., 34 Wis. 139 (1874); Staffordshire Canal Co. v. Trent Navigation Co., 6 Taunt. 151 (1815); Case v. Midland Ry., 27 Beav. 247 (1859).