and local governmental authorities whose highways and streets are used, even though said roads and streets are post and military roads.68 But, on the other side, although the State may, in the exercise of its police power, enact such laws relating to persons and property within its territorial limits as shall best promote general prosperity, and the public health, safety and morals, nevertheless, it cannot encroach upon the powers of the Federal government so as to materially impair or destroy rights granted or secured by constitutional acts of Congress, or granted under a constitutional exercise of power. Especially is this true of the constitutional right to regulate commerce. It is held, however, in a case in the United States Circuit Court that the police power is inherent in the States, and is not affected by the United States interstate commerce provision, nor by the Post Roads Act.70 These two propositions, although seemingly inconsistent, are perfectly reconcilable. It is well settled that the police power extends to the protection of life, health and property, and that no citizen should be permitted to exercise his rights so as to injuriously affect a community in these matters. A strictly legitimate exercise of the police power of a State does not, in a constitutional sense, 68 Richmond V. Southern Bell Teleph. & Teleg. Co., 42 U. S. App. 686, 28 U. S. C. C. A. 659, 85 Fed. 19, 30 Chic. Leg. News, 271, 3 Va. La. Reg. 856; Southern Bell Teleph. & Teleg. Co. v. Richmond, 78 Fed. 858, 6 Am. Elec. Cas. 1, 6, per Goff, Cir. J.; Clausen & Sons Brewing Co. v. The Baltimore & Ohio Teleg. Co. (N. Y. Sup. Ct. Chambers, 1884), 2 Am. Elec. Cas. 210, 217, per Van Brunt, J.; Mutual Union Teleg. Co. v. Chicago, 16 Fed. 309, 1 Am. Elec. Cas. 506, 507, per Drummond, J. 69 Western Union Teleg. Co. v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. ed. 1105, 6 Am. Elec. Cas. 858, 861, 16 Sup. Ct. 934, per Mr. Justice Peckham; People v. Hawkins, 20 N. Y. App. Div. 494, 47 N. Y. Supp. 56, citing Walling v. Michigan, 116 U. S. 446-460, 29 L. ed. 691, 696, 6 Sup. Ct. 454; People v. Gilson, 109 N. Y. 389-401, 4 Am. St. Rep. 465, 17 N. E. 343; New Orleans Gas Light Co. v. Louisiana L. & H. P. & Mfg. Co., 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. 252; Brennan v. Titusville, 153 U. S. 289-299, 4 Inter. Comm. Rep. 658, 38 L. ed. 719, 722, 14 Sup. Ct. 829; Jacobs, In re, 98 N. Y. 98108, 50 Am. St. Rep. 636. 70 Western Union Teleg. Co. v. Mayor of New York, 38 Fed. 552, 2 Inter. Comm. Rep. 533, 3 L. R. A. 449, 6 Ry, & Corp. L. Jour. 105, 2 Am. Elec. Cas. 195. necessarily encroach upon any authority confided expressly or by implication to the national government. In addition, the exercise of the police power in the last case above noted, related to the enforcement of the subway act 71 in the city of New York.72 The franchise of a telegraph company is derived from the State, and it owes its existence to the state law of organization, even though its privilege of running lines over post and military roads is derived from Congress.73 A telegraph company, therefore, within the limitations above specified, owes obedience to the state laws, notwithstanding it has accepted the provisions and benefits of the Post Roads Act.74 It may be stated in this connection that it is a general principle that the State may legislate with binding effect within its territorial limits where such enactments relate to the rights, duties and liabilities of citizens, and are not directed against commerce nor any of its regulations.? 75 71 Laws N. Y. 1884, c. 534; Laws 39 Fed. 59, 4 Am. Elec. Cas. 102, 111, 1885, c. 499, and Laws 1887, c. 716. 13 Sup. Ct. 485, per Mr. Justice 72 The case last given is cited with Brewer, citing Western Union Teleg. approval in State ex rel. Wisconsin Co. v. Massachusetts, 125 U. S. 530, Teleph. Co. v. Janesville St. Ry. Co., 548, 21 Am. & Eng. Corp. Cas. 13, 87 Wis. 72, 41 Am. St. Rep. 23, 4 31 L. ed. 790, 8 Sup. Ct. 961, per Mr. Am. Elec. Cas. 289, 294, 57 N. W. Justice Miller. 970, per Orton, C. J. See Western Union Teleg. Co. v. Mississippi R. Commission, 74 Miss. 80, 21 So. 15. 75 Sherlock v. Alling, 93 U. S. 99, 23 L. ed. 819, cited with approval in Western Union Teleg. Co. v. Tyler, 90 Va. 297, 4 Am. Elec. Cas. 816, 819, 18 S. E. 280, per Lewis, P. 73 Western Union Teleg. Co. v. Attorney-General of Mass., 125 U. S. 530, 548, 31 L. ed. 790, 8 Sup. Ct. See Joyce on Electric Law (2d ed.), 961, 21 Am. & Eng. Corp. Cas. 13, under the following sections: § 38. 2 Am. Elec. Cas. 57, 60, 61, per Mr. Acts aiding telegraph companiesJustice Miller; Attorney-General of Post Roads Act; § 39. Object of Post Mass. v. Western Union Teleg. Co., Roads Act; § 40. Powers of Con141 U. S. 40, 3 Am. Elec. Cas. 20, 24, gress-Commerce-Post-offices and 25, 35 L. ed. 628, 11 Sup. Ct. 889, per post roads; § 41. Object of vesting Mr. Justice Gray. power in Congress-Commerce; § 42. 74 See Attorney-General of Mass. Legislative intent-New discoveries v. Western Union Teleg. Co., 141 U. Regulation of Commerce; § 42a. S. 40, 3 Am. Elec. Cas. 20, 24, 11 Sup. Interstate Commerce-Regulation of Ct. 889, 35 L. ed. 628, per Mr. Justice by common law and acts of Congress; Gray; St. Louis v. Western Union § 43. Telegraph is instrument of Teleg. Co., 148 U. S. 92, 37 L. ed. 380, commerce-Control of Congress; § 44. Telephone is instrument of Roads Act-Condemnation under interstate commerce; § 45. Whether state law-Telegraph companies; Post Roads Act includes telephone § 55. Commerce-Federal Constitucompanies; § 45a. Post Roads Act- tion-Municipal powers; § 56. ComMessenger service-Call boxes; § 46. merce-Federal Constitution—StipuWhat are post and military roads; lations in telegraph blanks against § 47. Post Roads Act not limited to negligence; § 57. Commerce-Fedpublic domain; § 48. Post Roads eral constitution-Tariff or rates for Act applies to District of Columbia; telegraph or telephone; § 62. Post $49. Post Roads Act applies to Roads Act-Authority conferred; companies thereafter formed; § 50. § 63. Post Roads Act-Limitations Post Roads Act-Regulation of com- upon authority or right conferred; merce-Foreign corporation; § 51. § 64. Same subject—Public and priAcceptance necessary of Post Roads vate property-Streets and highways Act; § 51a. Certificate of postmaster -Abutting owners; § 65. Post Roads general competent evidence of ac- Act exclusive-Hostile legislation; ceptance; § 52. Effect of accept- § 66. Post Roads Act exclusiveance of Post Roads Act; § 52a. Hostile legislation continued-ModiForeign corporations-Incorporation fication of rule; § 67. Post Roads prerequisite to acceptance-Post Act-Modification of the rule as to Roads Act does not confer franchise; hostile legislation continued. See § 53. Post Roads Act does not au- also id., §§ 30–37c, 68–83, 130– thorize condemnation; § 54. Post 140a. CHAPTER IX. SOURCE OF FRANCHISE CONTINUED-STATE, CONSTITUTIONAL AND LEGISLATIVE POWERS. § 132. Legislative Power-Source of Franchise of Charter-Leg islative Grant Necessary. 133. Same Subject-Prescription. 134. Test of Legislative Power to Grant Franchises. 135. Distribution or Division of Powers of State. 136. What Matters Exclusively Within Legislative Discretion-Power of Courts. 137. Limitations on Powers of State Legislature. 138. Abdication or Surrender of Essential or Distinctive Legislative Powers-Binding Future LegislaturesWaiver Police PowersJudicial Powers. 139. Legislative Powers of Territory-Corporations Created by Territory Follow It Into Union. 140. Legislative Power to Grant Implies Power to Refuse § 141. Consent of Subordinate Body 143. Legislative Power-Grant of 144. Legislative Grant Necessary -Roads, Highways, Bridges and Ferries, Eminent Domain, Generally. 145. Bridge Corporation-Bridges - Commerce Navigable Waters Wholly Within State Power of State as to Toll Bridges Railroad Toll Bridge. 146. Pier Erected Without Authority in Navigable Water -Unlawful StructureOwner's Liability. § 132. Legislative Power-Source of Franchise or Charter-Legislative Grant Necessary.-A franchise must have its source in or emanate from the sovereign power wherein it primarily resides, and that power alone can grant it and make possible its lawful exercise, for such legislative grant or law is a prerequisite. The source of a franchise is the State, whatever the agency employed.1 1 United States: Bank of Au- 519, 595, 10 L. ed. 274, per Taney, C. gusta v. Earle, 13 Pet. (38 U. S.) J., who says: "It is essential to the § 133. Same Subject-Prescription.2-Although a corporation may exist by prescription, such prescription presupposes character of a franchise that it should can States emanate from the gov be a grant from the sovereign authority, and in this country no franchise can be held which is not derived from a law of the State;" quoted in whole or in part in People's Rd. v. Memphis Rd., 10 Wall. (77 U. S.) 38, 51, 19 L. ed. 844; Western Union Teleg. Co. v. Norman, 77 Fed. 13, 22, per Barr, Dist. J.; Chicago & Western Indiana Rd. Co. v. Dunbar, 95 Ill. 571, 575; Purnell v. McLane, 98 Md. 589, 592, 56 Atl. 830, per Pearce, J.; State v. Scougal, 3 S. Dak. 55, 62, 44 Am. St. Rep. 756, 15 L. R. A. 477, per Corson, J. Alabama: State v. Wilburn (Ala., 1905), 39 So. 816; Uniontown, City of, v. State (Ala., 1905), 39 So. 814; State v. Moore & Ligon, 19 Ala. 520, per Parsons, J., who says: "It is clear that the State is the source of all such franchises." Colorado: Denver & Swansea Ry. Co. v. Denver City Ry. Co., 2 Colo. 673, 682, per Brazee, J., who says: "It is essential that a franchise should be created by a grant from the sovereign authority." It is a franchise which the sovereign authority alone can grant. Idaho: Spotswood v. Morris, 12 Idaho, 360, 85 Pac. 1094 (sovereign power is necessary in order to possess or lawfully exercise the powers, privileges or franchises of a corporation). Illinois: Wilmington Water Power Co. v. Evans, 166 Ill. 548, 556, 46 N. E. 1083, per Magruder, C. J.; Chicago City Ry. v. People, 73 Ill. 541, 547, per Story, J., who says: "Corporate franchises in the Ameri ernment, or sovereign power, owe their existence to a grant," etc.; People ex rel. Koerner v. Ridgley, 21 Ill. 65, 69, per Breese, J., who says: "In this country, under our institutions, a privilege or immunity of a public nature, which could not be exercised without a legislative grant would also be a franchise. There must be some parting of prerogative belonging to a king, or to the people, under our system, that can constitute a franchise"; Cain v. City of Wyoming, 104 Ill. App. 538 (a franchise must be granted by the legislature). Louisiana: Maestri v. Board of Assessors, 110 La. 517, 526, 34 So. 658, per Blanchard, J., who says: "To be a franchise the right possessed must be such as cannot be exercised without the express permission of the sovereign power-a privilege or immunity of a public nature which cannot be legally exercised without legislative grant.” Maine: Yarmouth v. North Yarmouth, 34 Me. 411, 56 Am. Dec. 666 (private corporations exist by legislative grants conferring rights and powers for special purposes). Minnesota: State, Clapp, v. Minnesota Thresher Mfg. Co., 40 Minn. 213, 3 L. R. A. 510, 41 N. W. 1020 (same statement as Louisiana case); Blake v. Winona & St. Peter Ry. Co., 19 Minn. 418, 425. Pennsylvania: Allegheny County v. McKeesport Diamond Market, 123 Pa. 164, 19 Pitts. L. J. (N. S.) 280, 46 Phila. Leg. Int. 211, 23 W. N. C. 89, 16 Atl. 619 (chartered rights from 2 See § 122, herein. |