in a case in the United States Circuit Court that, "for all time the setting up of a highway or ferry for conveying persons and property has been deemed, in the common law a franchise, a part of the subjects in the immediate possession of the political power, and, to exercise which, demanded a release of this right by the sovereign by special grant or charter. It is not in its nature, or actual history, like those private avocations of milling, hotel keeping and traffic, which all may pursue at pleasure unless, in the exercise of police power, a restraining statute interferes and requires a license." 51 But it is declared that a ferry franchise is neither more or less than a right conferred to land at a particular point, and receive toll for the transportation of passengers and property from that point across a stream.52 No franchise is required, howprescription, grant or license from State, from the year 1820, the right the Crown. Thus says Chief Justice Willes (Willes' Rep. 512; Blissett v. Hart, note), 'a ferry is publici juris. It is a franchise which no one can erect without a license from the Crown.'" Prosser v. Wapello County, 18 Iowa, 327, 333, per Dillon, J. 66 ‘A public ferry is a franchise, and consists not merely in the building of the ferry and the furnishing of the boats, but in the running of them. The right of the public to use them is common, but the running of the ferry is a part of the franchise." McGregor v. Erie Ry. Co., 35 N. J. L. 89, 98, per Bedle, J. "The right to establish a ferry was a franchise, and no man could set up a ferry, although he owned the soil and landing-places on both sides of the stream, without a charter from the king or a prescription time out of mind." People v. Budd, 117 N. Y. 1, 17, 18, 26 N. Y. St. R. 533, 22 N. E. 670, 682, per Andrews, J. In an early case in Alabama it is held that under the statutes of that to keep a public ferry for toll had been a franchise requiring a legislative grant. Milton v. Haden, 32 Ala. 30, 70 Am. Dec. 523. Under the laws of Kentucky a ferry franchise on the Ohio river was held grantable to a citizen who was a riparian owner on the Kentucky side. Conway v. Taylor's Executor, 1 Black. (66 U. S.) 603, 17 L. ed. 191. 51 Talcott v. Township of Pine Grove, 1 Flipp (U. S. C. C.), 120, 142, Fed. Cas. No. 13,733, per Emmons, Cir. J. [case aff'd Township of Pine Grove v. Talcott, 19 Wall. (86 U. S.) 666, 22 L. ed. 227]. 52 Mills v. County of St. Clair, 7 Ill. 197. "A ferry, in its ordinary sense, is but a substitute for a bridge where a bridge is impracticable, and its end and use is the same. Like a tollbridge, it is a franchise created for the use and convenience of the traveling public, as a link in the highway system of the country, and by no means includes the transportation of goods, wares, and merchandise by them ever, to lawfully establish and maintain a private ferry as incident to ownership of lands on each side of the stream, and selves, or, in other words, the carrying trade of modern commerce. Ferriage, literally speaking, is the price or fare fixed by law for the transportation of the traveling public, with such goods and chattels as they may have with them, across a river, bay, or lake." People v. San Francisco & Alameda Rd. Co., 35 Cal. 606, 619, per Sanderson, J. "A ferry franchise is a privilege to take tolls for transporting men, horses, cattle and vehicles, with or without them loading, across a lake or stream, or some other body of water." Hunter v. Moore, 44 Ark. 184, 188, 51 Am. Rep. 589, per Eakin, J. "A ferry franchise is neither more nor less than a right conferred to land at a particular point, and secure toll for the transportation of passengers and property from that point across a stream." Mississippi River Bridge Co. v. Lonergan, 91 Ill. 508, 513, per Craig, C. J., quoting Mills v. County of St. Clair, 2 Gilm. (Ill.) 197. A ferry "is a franchise granted by the State and regulated by statute. It may be defined to be a right to transport persons and property across a watercourse and land within the jurisdiction granting the franchise and receive tolls and pay therefor." Einstman v. Black, 14 Ill. App. 381, 383, 384, per Higbee, J. (also citing Bouvier's L. Dict.). "The definition of a ferry in the early books is 'a liberty by prescription, or the King's grant, to have a boat for passage upon a great stream for carriage of horses and men for reasonable toll.' Termes de la Ley (1st Am. ed.), 223; Jacobs' Law Dict., 'Ferry.' And according to all au thorities, English and American, the grant of a ferry, in its very nature, implies the taking of tolls by the grantee." Attorney General v. Boston, 123 Mass. 460, 468, per Gray, C. J. "A ferry, when considered as a franchise, consists in the right, arising from grant or prescription, to have a boat or boats for carrying men and horses across a river for reasonable fare or toll (Burrill's Law Dict., 'Ferry'). Bouvier defines a ferry to be a place where persons and things are taken across a river or stream in boats or other vessels for hire. The franchise consists in the right to exact toll, and this right involves the corresponding obligation of maintaining the ferry and carrying such persons as apply and pay their fare." Akin (Aiken) v. Western Rd. Corp., 30 Barb. (N. Y.) 305, 310, per Harris, J. See also Alexandria, Warsaw & Keokuk Ferry Co. v. Wisch, 73 Mo. 655, 657, 39 Am. Rep. 535, per Norton, J. The essential element of a ferry franchise, is the exclusive right to transport persons, with the horses and vehicles and such personal goods as accompany them from one shore to the other. Broadnax v. Baker, 94 N. Car. 675, 55 Am. Rep. 633. A ferry is not a railroad, nor a railroad a ferry. Both franchises, i. e., the right to construct a railroad and to erect a ferry, may be granted to one corporation, where the grant conflicts with no other rights. But * * * the two things are in their nature distinct, and cannot be merged." Aiken (Akin) v. Western Rd. Corp., 20 N. Y. 370, 376, per Selden, J. the owner of such a ferry may charge and collect toll for its use, but he cannot maintain the ferry for use of the public at large or seek public patronage and maintain its character as a private ferry.53 Again, the right to improve navigation by a canal is a franchise.54 § 16. Right to Supply Water, Gas or Electricity.-The right to dig up the streets of a city or town and to supply water to the inhabitants is a franchise.55 So the right of a waterworks company to exist as a corporation and to collect water rates for the use of water supplied to a city and its inhabitants are franchises.56 And a grant made by the com "That the franchise of a ferry at common law, and in the State of Massachusetts extends beyond the landing places, is very clear from authority." Charles River Bridge v. Warren Bridge, 11 Pet. (36 U. S.) 420, 555, 9 L. ed. 773, per M'Lean, J., citing 10 Petersdorf, 53, 13 Vin. 513; Blissett v. Hart, Willes' Rep. 512, note; King v. Nicholson, 12 East, 330; Peter v. Kendal, 6 Barn. & Cress. 703; Year Book, Hen. 6, 22; Rolles' Ab. 140; Fitz., 428, note; Com. Dig., Market, c. 2; Piscary, B. Action on the case, A; 3 Blk. 219; Nott & M'Cord, 387; Yard v. Ford, 2 Saund. 172; 6 Mod. 229; 2 Vent. 344; 3 Levinz, 220; Com. Dig., Patent, F., 4, 5, 6, 7; 2 Saund. 72, note 4; 2 Inst. 406; Chit. Pre., 12 Chap. 3; 10 Chap. 2; 3 Salk. 198; Tripp v. Frank, 4 Term. 666; Saund. 114; Croke, E. 710. chise." Canal v. Railroad Co., 4 Gill & J. (Md.) 1, 107, per Buchanan, Ch. J. 55 New Orleans Water Works Co. v. Rivers, 115 U. S. 674, 681, 29 L. ed. 525, 6 Sup. Ct. 273, case controlled by New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. 252. Principal case is cited in Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 9, 43 L. ed. 341, 19 Sup. Ct. 77; cited, Tillamook Water Co. v. Tillamook City, 139 Fed. 405, 406; cited, Boise City Artesian Hot & Cold Water Co. v. Boise City, 123 Fed. 232, 235; aff'd in St. Tammany Water Works v. New Orleans Water Works, 120 U. S. 64, 30 L. ed. 563, 7 Sup. Ct. 405. See New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. 252; Andrews v. National Foundry & Pipe Works, Lim., 53 Hudspeth v. Hall, 111 Ga. 510, 61 Fed. 782, 787-789, 10 C. C. A. 60, 36 S. E. 770. 54 See Tuckahoe Canal Co. V. Tuckahoe Rd. Co., 11 Leigh (Va.), 42, 75, per Tucker, P. "The right to improve and extend the navigation of the river, was a franchise granted; the manner of doing it a mode of exercising that fran per Woods, Cir. J., s. c., 73 Fed. 516, 19 C. C. A. 548, 77 Fed. 774, 23 C. C. A. 454, 113 Fed. 793, 794, 183 U. S. 216, 225. Examine §§ 47, 48, herein. 56 Spring Valley Water Works v. Schottler, 62 Cal. 69 (under constitution of State). 11 59 mon council of a city, by authority of its charter, to construct, maintain and operate a system of waterworks in such city and to use the streets and alleys thereof for that purpose, is a legislative grant through the medium of an authorized legislative agency, and is a franchise.57 So an ordinance granting to a corporation an exclusive right to supply a city with water is a franchise.58 And under a statute providing for taxation the franchise primarily in view "is any special or exclusive privilege not allowed by law to natural persons. It is also held that a private corporation is a "person" within the meaning of a statute providing a remedy for usurping or unlawfully holding or exercising, etc., "any franchise," and that a franchise to operate a system of public waterworks in a city, using the streets for that purpose, while not a corporate franchise in the sense that it is necessary to corporate existence, is still a franchise within the meaning of the enactment and may be annulled for cause by quo warranto proceedings."0 Again, the right to dig up and to place pipes and mains in the public streets and ways of a city for the distribution of gas for public and private use is also a franchise.61 So a legislative grant of an exclusive right to supply gas to a municipality and its inhabitants, through pipes and mains laid in the public streets, and upon condition of the performance of the service by the grantee, is a grant of a franchise vested in the State, $7 State v. Portage City Water Co., Portage City W. Co., 107 Wis. 441, 107 Wis. 441, 83 N. W. 697. 83 N. W. 697, cited in State ex rel. Vilter Mfg. Co. v. Milwaukee, Burlington & Lake Geneva Rd. Co., 116 Wis. 142, 92 N. W. 546, per Winslow, J. "Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 91 N. W. 1081. The question whether a grant by a municipality is a franchise or license is considered elsewhere herein. "Board of Councilmen of City of Frankfort v. Stone, Auditor, 108 Ky. 400, 406, 22 Ky. L. Rep. 25, 56 S. W. 679, per Hobson, J. (a case of taxation of franchise of water company. See above case where the grant to a water company is considered throughout the opinion as a franchise). "State ex rel. Attorney General v. 61 Consolidated Gas Co. v. Baltimore City, 101 Md. 541, 545–548, 61 Atl. 532, per McSherry, C. J. (citing State v. Cinn. Gas Co., 18 Ohio St. 262; Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242; Purnell v. McLane, 98 Md. 589, 593, 56 Atl. 830, per Pearce, J., citing New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 659, 6 Sup. Ct. 252, 29 L. ed. 516. in consideration of the performance of a public service, and, after performance, by the grantee, is a contract protected by the constitution of the United States against state legislation to impair it.62 And a consent by town authorities, acting under a statute, giving a gas company power to lay conductors for conducting gas in and through the public streets and highways of a town, confers upon the company a franchise to carry on its business in the town and to lay conductors in the streets and highways for the purpose of delivering gas.63 While the right to produce and sell electricity as a commercial product is open to all persons without legislative authority, still the right to use the streets of a city for the purpose of transmitting electricity with wires is not common to all citizens, but is a franchise which can only be granted by the State or a municipality acting under legislative authority.64 62 New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. 252 (cited, Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 9, 43 L. ed. 341, 19 Sup. Ct. 77; cited, Tillamook Water Co. v. Tillamook City, 139 Fed. 405, 406; cited Boise City Artesian Hot & Cold Water Co. v. Boise City, 123 Fed. 232, 235). It is said in the principal case that: "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. Dillon's Munic. Corp. (3d ed.) § 691; State v. Cincinnati Gas Co., 18 Ohio St. 262; see also Boston v. Richardson, 13 Allen (Mass.), 146. To the same effect is the decision of the Supreme Court of Louisiana in Crescent City Gas-Light Co., 27 La. Ann. 138, 147, in which it was said: "The right to operate gas works, and to illuminate a city, is not an ancient or usual occupation of citizens generally. No one has the right to dig up the streets, and lay down gas pipes, erect lamp-posts, and carry on the business of lighting the streets and the houses of the city of New Orleans, without special authority from the sovereign. It is a franchise belonging to the State, and, in the exercise of the police power, the State could carry on the business itself or select one of several agents to do so.'" New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 659, 660, 29 L. ed. 516, 6 Sup. Ct. 252. See State ex rel. Attorney General v. Seattle Gas & Electric Co., 28 Wash. 488, 68 Pac. 496; Bul. Code, § 5780, subd. 1, construed. 63 People ex rel. Woodhaven Gas Co. v. Deehan, 153 N. Y. 528, 47 N. E. 787, rev'g 11 App. Div. 175. See Ghee v. Northern Union Gas Co., 56 N. Y. Supp 450, 454, 34 App. Div. 551, per O'Brien, J.; rev'd 158 N. Y. 510, 53 N. E. 592. 64 Purnell v. McLane, 98 Md. 589, |