not only a breach of contract but a failure to perform a duty which the company as a servant of the people is under obligation to perform. A telephone company organized to establish and maintain a public telephone system for the purpose of furnishing telephone communication between its subscribers and which under the statute of its incorporation has the right of eminent domain is organized for a public purpose. Its business is of a public character and it is a quasi-public corporation. It depends upon the public for its support and the public depends upon it for its accommodations.56

§ 115. Trustees-Company Incorporated as-Trustees of Poor.-A company, incorporated as the trustees of a fund, with the power and duty of investing it and appropriating its income to the public schools of a town, is a private and not a public corporation. Such a corporation can hold and enjoy their rights and privileges under their charter independent of legislative control or interference within the constitutional provision against passing laws impairing the obligation of contracts.57 Trustees of the poor are a public corporation.58

§ 116. Turnpike Companies-Toll Roads.-A turnpike company, in which the State holds stock, is not a public corporation, within a statute which exempts from executions "a county, township, or other public corporate body.' Under

56 Joyce on Electric Law (2d ed.), § 14, and note.

To what extent telegraph and telephone companies are common carriers, see Joyce on Elect. Law (2d ed.), §§ 15, 16, 18-24a, 27, 37c.

Considered as instruments of interstate commerce, see Joyce on Electric Law (2d ed.), §§ 42a, 44.

57 Yarmouth v. North Yarmouth,

34 Me. 411, 56 Am. Dec. 666.

11 59

that the character of the corporation cannot depend upon the quantity of the stock held by the commonwealth, so that if this case comes within the exception, for the same reason every corporation in which the State reserves an interest, however trifling, must be held to be in the same class. But on this construction, the act which is remedial, would be merely a dead letter, as there are very few cor

58 Governor to Use of Trustees v. porations, if any, in which the State Gridley, 1 Walk. (1 Miss.) 328.

5 Turnpike Co. v. Wallace, 8 Watts (Pa.), 316. "It is very clear

does not hold some stock, or in which they have not some pecuniary interest. Besides, the act applies to

a California decision no authority is vested in a board of county supervisors to grant a franchise to collect tolls upon a free public highway, but the power of such board is limited to regulating the collection of tolls upon toll roads only. The payment of toll under a turnpike franchise cannot be evaded by constructing a road solely for that purpose.61

§ 117. Turnpike Road as Highway.-"A road constructed and supported by a turnpike corporation differs in no essential characteristic from a common highway, established and supported by a town, a borough, or a city. Their origin and objects are identical. Both emanate from the same supreme power, acting through the legislature, the courts, or other depositaries of authority designated by the laws. Both are called into existence, and supported, to subserve, in exactly the same way, the public necessities and convenience, and both alike are intended to endure for an indefinite period, and so long as that convenience requires or that necessity exists." 62 That a turnpike road is a public highway constructed by virtue of public authority and for public purposes, is definitely settled in Pennsylvania. Such a road is for the use of every person desiring to pass over it on payment of the toll established by law. If the charter of the company is forfeited, or the corporation abandons the road, such road continues to be a public highway. The corporation is the agent of the State for the purpose of constructing the road, which is a part of the system of public highways of the State.63

§ 118. Waterworks.-A franchise to construct waterworks can be conferred only through direct or delegated authority from the State, and it is quasi-public in its nature.64 So a corporation 61 Hydes Ferry Turnpike Co. v. Davidson County, 91 Tenn. 291, 18 S. W. 626.

banks, as well as other corporate bodies. In all of these the State has a deep interest, and in many holds stocks to a large amount, with a power to appoint a portion of the directors." Id., 317, per Rogers, J.

60 Blood v. Woods, 95 Cal. 78, 30 Pac. 129.

62 State v. Maine, 27 Conn. 641, 71 Am. Dec. 89.

63 Derry Township Road, In re, 30 Pa. Super. Ct. 538, 540, 541.

64 Washburn Waterworks Co. v.

organized under the general law of Illinois to supply a village with water is a corporation engaged in an enterprise, essentially public in its nature. Its property and its efforts are devoted to a use in which the public has an interest. Its corporate existence is granted to enable it to serve the public. It is not a private corporation, but it is quasi-public. The duty devolves upon it to furnish water for a reasonable compensation and without unjust discrimination, and the power resides in the State, acting in its sovereign capacity, to enforce the performance of such duty.65

§ 119. Wharf "Public Wharf "- Wharfingers. — The words "public wharf" are not used in the Michigan statutes as a term to indicate anything anolagous to any public use, like that of highways, and the wharves in the city of Detroit are not highways and may be leased.66 But a wharf may be so located, and so connected with public highways as to constitute the only means of access to navigable water for use of the mediums of commerce navigating such waters, that it becomes impressed with a public interest precluding its conversion by a lessee into private property to the exclusion of the public, or of other carriers desiring its use upon payment of reasonable wharfage.67 Wharfingers are not common carriers where they carry goods from their wharf, for wharf customers only, except in special cases, and they act as lightermen or carmen.68

City of Washburn, 129, Wis. 73, 80, 108 N. W. 194, per Kerwin, J.

66 Horn v. People, 26 Mich. 221, 224. See Kemp v. Stradley (Mich.), 65 Danville v. Danville Water Co., 10 Detroit Leg. N. 671, 97 N. W. 180 Ill. 235, 241, 54 N. E. 224.

Whether such company is a public corporation, see Foster v. Fowler, 60 Pa. 27.

Whether public works include waterworks, see Opinion of Justices, 13 Fla. 699; Ellis v. Common Council of Grand Rapids, 123 Mich. 567, 82 N. W. 244; Winters v. City of Duluth, 82 Minn. 127, 135, 84 N. W. 788, per Collins, J., in dissenting opinion.

41.

67 Weems Steamboat Co. v. People's Steamboat Co., 141 Fed. 454.

As to right of exclusive occupation of wharf, and public use thereof, see Thousand Islands Steamboat Co. v. Visgar, 83 N. Y. Supp. 325, 86 App. Div. 126; The Davidson (U. S. D. C.), 122 Fed. 1006.

68 Chattock v. Bellamy, 64 L. J. Q. B. (N. S.) 250.

CHAPTER VIII.

SOURCE OF FRANCHISE-FEDERAL, CONSTITUTIONAL AND LEGIS

LATIVE POWERS.

§ 120. National and State Powers- § 128. Power of Congress to Declare

§ 120. National and State Powers-Generally.—In a comparatively recent case in the United States Supreme Court it is said: "In the Constitution are provisions in separate articles for the three great departments of government-legislative, executive and judicial. But there is a significant difference in the grants of powers to these departments: The first article, treating of legislative powers, does not make a general grant of legislative power. It reads: 'Article I, section 1. All legislative powers herein granted shall be vested in a Congress,' etc.; and then in Article VIII mentions and defines the legislative powers that are granted. By reason of the fact that

there is no general grant of legislative power it has become an accepted constitutional rule that this is a government of enumerated powers. In McCulloch v. State of Maryland,1 Chief Justice Marshall said: "This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted.' * ** When a legislative power is claimed for the National Government the question is whether that power is one of those granted by the Constitution, either in terms or by necessary implication. * * * As heretofore stated, the constant declaration of this court from the beginning is that this Government is one of enumerated powers. 'The Government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication. * * The Government of the United States is one of delegated, limited and enumerated powers.'" 2 And one of the points determined in that case is that: In a qualified sense and to a limited extent the separate States are sovereign and independent, and the relations between them partake something of the nature of international law. The Federal Supreme Court in appropriate cases, enforces the principles of that law, and in addition by its decisions of controversies between two or more States is constructing what may not improperly be called a body of interstate law. It is also held in the same court that: The National Government is one of enumerated powers; that a power enumerated and delegated to Congress is comprehensive and complete, without other limitations than those found in the Constitution itself; and that to preserve the even

14 Wheat. (17 U. S.) 316, 405, 4 Ct. 655, per Brewer, J. See Downes L. ed. 579. v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 44 L. ed. 1088.

'Kansas v. Colorado, 206 U. S. 46, 81, 82, 84, 87, 51 L. ed. 956, 27 Sup.