and permit the exercise of competing and rival powers and privileges, however injurious they may be to those previously granted.13 And if a State grants no exclusive privileges to one company which it has incorporated, it impairs no contract by incorporating a second one which itself largely manages and profits by to the injury of the first. 14 Again, in the construction of charters and statutes granting exclusive privileges to street-railway, gas or water companies, authority therefor must be given explicitly by the legislature in clearly expressed terms-the right will not be implied from the use of general language; and, as a rule, municipalities have no power to grant such exclusive rights to said companies except upon legislative authorization subject to the same rules of construction as above stated.15 Where a statute grants exclusive rights to supply light or heat, a corporation which comes within the terms of the statute may exercise such exclusive privilege. But where the statute provides for the incorporation of companies "for the supply of water to the public, or for the manufacture of gas, or the supply of light or heat to the public, by any other means," it does not include electric lighting, where such grant is relied on for the purpose of claiming an exclusive privilege, especially so where the act in question gives no power to enter upon the public streets for the erection of poles and placing of wires, the privilege of so entering being confined to the laying of pipes only and the process of lighting by electricity being unknown when the statute was

N. Y. 154, 55 N. E. 562, aff'g 54
N. Y. Supp. 1115, 33 App. Div. 642.

15 Detroit Citizens' St. R. Co. v. Detroit, 110 Mich. 384, 68 N. W, 304, 35 L. R. A. 859, 28 Chic. L. News, 409, 3 Detroit L. News, 377, 5 Am. & Eng. R. Cas. (N. S.) 15, aff'd 171 U. S. 48, 18 Sup. Ct. 732. See Morawetz on Priv. Corp. (ed. 1882) § 431; Cooley on Const. Lim. (ed. 1890) pp. 231 et. seq; 4 Thomp. on Corp. (ed. 1895) §§ 5348, 53985403.

enacted.16 The rule was also relied upon in this case, that a legislative grant to a corporation of exclusive privileges is to be construed most strictly, that every intendment not obviously in favor of the grant must be construed against it, and that monopolies are not to be favored.17

§ 24. Same Subject Continued.-The term "franchise ” 18 is, however, sometimes used to mean an exclusive right,1o and "Scranton Elect. Light & Heat the establishment of ferries, toll Co. v. Scranton Illuminating, Heat bridges, turnpikes, telegraph com& Power Co., 122 Pa. 154, 9 Am. panies and the like. * * * The St. Rep. 79, 15 Atl. 446, 3 Am. delegation to a corporation of the Elec. Cas. 499; Act of Pa. 1874, power to acquire title to land for pub34, cl. 3, contra, except as to ex- lic purposes is not a grant of an 'exclusive privilege; Wilkesbarre Elec. clusive' privilege, for the same L. Co. v. Wilkesbarre L. H. & M. delegated power may be conferred Co. (C. P. Penn. 1886), 4 Kulp, 47. upon any corporation to whom the legislature may see fit to intrust it." Union Ferry Co., Matter of Application of, 98 N. Y. 139, 151, per Rapallo, J.; Davenport v. Kleinschmidt, 6 Mont. 502, 531, 13 Pac. 249, per McLeary, J., gives same definition.

"Citing Emerson v. Commonwealth, 108 Pa. 111. The court in the principal case (122 Pa. 154, cited in last preceding note), per Gordon, C. J., said: "Monopolies are favorites neither with courts nor people. They operate in restraint of competition, and are hence, as a rule, detrimental to the public welfare; nor are they at all allowable except where the resultant advantage is in favor of the public, as, for instance, where a water or gas company could not exist except as a monopoly."

18 See § 4, herein.

"Chicago & Western Indiana Rd. Co. v. Dunbar, 95 Ill. 571, 576, per Dickey, J. See § 4, herein.

"The word 'exclusive' is derived from ‘ex,' out, and ‘claudere,' to shut. An act does not grant an exclusive privilege or franchise unless it shuts out or excludes others from enjoying a similar privilege or franchise. The most familiar instances of grants of exclusive privileges or franchises are to be found in acts authorizing

The grant of every franchise or privilege is "an exclusive one, in the sense that all others are excluded from the enjoyment of that particular franchise or privilege. The true test is not, are all others excluded from the enjoyment of that particular grant? But are all others excluded from the enjoyment of a like grant? The fact that no others enjoy a like immunity does not render the immunity exclusive. It is not whether others enjoy a similar privilege, immunity or franchise, but are others prohibited from a similar enjoyment by reason of the enactment." Wood V. Common Council of City of Binghamton, 56 N. Y. Supp. 105, 111, 26 Misc. 208, per Mattice, J.

Meaning of exclusive franchise,

it is expressly declared that every grant of a franchise is, so far as that grant extends, necessarily exclusive, and cannot be resumed or interfered with; that it is a contract whose obligation cannot be constitutionally impaired; 20 and that certain franchises are founded upon a valuable consideration and are necessarily exclusive in their nature and cannot be resumed at pleasure or the grant impaired by any act of the government without a breach of contract.21 So in a California case it is said that franchises are necessarily exclusive in character, otherwise their value would be liable to be destroyed or seriously impaired; and that even though the grant does not declare the privilege to be exclusive, yet that is necessarily implied from its nature.22 It is also declared that a franchise is jus publicum and necessarily exclusive in its nature. 23 So a grant of a ferry franchise by the legislature, unless limited by some general law, or some restrictive provision in the grant itself, is said to be necessarily exclusive to the extent

privilege or immunity, see the following cases:

Montana: Davenport v. Kleinschmidt, 6 Mont. 502, 529-531, 13 Pac. 249 (holding that a right to furnish all the water to a municipal corporation for twenty years, which right cannot be abridged, is an exclusive privilege).

v. Multnomah Ry. Co., 11 Oreg. 344, 3 Pac. 435 (ferry franchise gives exclusive privilege of transportation between certain points or ferry landings).

Pennsylvania: Lehigh Water Co.'s Appeal, 102 Pa. 515, 527.

20 Charles River Bridge v. Warren Bridge, 11 Pet. (36 U. S.) 420, 604,

New Jersey: State v. Post, 55 618, 637, 638, 643, 645, 9 L. ed. N. J. L. 264, 26 Atl. 683. 773, per Story, J., in dissenting opinion.

New York: Trustees of Exempt Firemen's Benev. Fund v. Roome, 93 N. Y. 313, 328, 45 Am. Rep. 217 (a grant of a right to receive a certain proportion of public funds is not an exclusive privilege, franchise or immunity, under a constitutional provision prohibiting such grants by private or local bill).

Oregon: Hackett v. Wilson, 12 Oreg. 25, 31, 32, 6 Pac. 652 (exclusive privilege confined to ferry landings and such privilege can be implied beyond that); Montgomery

21 Dyer v. Tuskaloosa Bridge Co., 2 Port. (Ala.) 296, 303, 304, 27 Am. Dec. 655, per Hitchcock, J.

22 California State Teleg. Co. v. Alta Teleg. Co., 22 Cal. 398, 422, per Crocker, J.

23 Twelfth St. Market Co. v. Philadelphia & Reading Term. R. Co., 142 Pa. 580, 590, 21 Atl. 989, per Thayer, P. J. (a case of a public market house and right of eminent domain). See also 3 Kent's Comm. (14th ed.) bottom p. 723, *p. 458.

of the privilege conferred.24 But it is also asserted that a grant of a public ferry franchise carries with it no exclusive privilege, and that such franchise is subject to the power of the proper authorities, under state laws, to establish such other public ferries over the same waters as public convenience demands, and that any injury thereby sustained by the first grantee is damnum absque injuria.25 Legislative grants of franchises, however, whether granted by special charters or under general laws, confer privileges which are exclusive in their nature as against all persons upon whom similar rights have not been conferred, so that any attempted exercise of such rights, without legislative sanction, is not only an unwarranted usurpation of power, but operates as a direct invasion of the private property rights of those upon whom the franchises have been so conferred.26

§ 25. Franchises as Property.-A franchise has been declared to be a mere legal right or privilege; 27 only an intangible right or privilege not subject to assessment; 28 not property of any description except in the sense that it is valuable; 29 not property within the meaning of that term as

Mills v. County of St. Clair, 7 IIL 197. See also Patterson v. Wollmann, 5 N. Dak. 608, 67 N. W. 1040, 33 L. R. A. 536. Examine Mills v. County of St. Clair, 7 Ill. (2 Gilm.) 225; Phillips v. Bloomington, 1 G. Greene (Iowa), 498, 502; Broadnax v. Baker, 94 N. C. 675, 55 Am. Rep. 633.

"There can be no question as to the meaning of the word ferry, when used in the common-law sense of a franchise or right of ferry. The definition, given in Termes de la Ley 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.' The term, according to the common law of England, implies

an exclusive right of conveyance, and can only be set up by license from the crown. While it may be a right to convey one way only, there must, at least, be a right to land on the opposite shore, or the franchise cannot beneficially exist." State v. Freeholders of Hudson, 23 N. J. L. 206, 209, per Carpenter, J.

25 Hudspeth v. Hall, 111 Ga. 510, 36 S. E. 770.

26 Millville Gaslight Co v. Vineland Light & Power Co., (N. J. Eq. 1906), 65 Atl. 504.

used in the Bill of Rights, even though in one sense property and valuable property; 30 not real estate; 31 and that a ferry is not land nor an incorporeal hereditament.32 It has also been declared by an eminent writer, whose statements, generally, have been accepted as having almost the force of a judicial opinion, that franchises have with some impropriety been classed among hereditaments.33 Again, in a New Jersey case the court says that: "Although, technically speaking, franchises are property, they are property of a peculiar character, arising only from legislative grant, and are not in ordinary cases, subject to execution or to sale and transfer, even in payment of the debts of the corporation without the assent or authority of the legislature.34 And it is also held that an action at law cannot be maintained to recover possession of a franchise of a corporation because it is intangible and is incapable of physical identification or delivery.35

§ 26. Same Subject Continued.-Notwithstanding any assertion to the contrary, franchises are property, and are almost universally classed as real property or incorporeal hereditaments.36 But, upon the point that the legislature

329, 41 N. E. 579, 30 L. R. A. 218.

30 City of Baltimore v. Johnson, 96 Md. 737, 747, 61 L. R. A. 568, 54 Atl. 646, per Boyd, J.; State v. Philadelphia, Wilmington & Balt. Rd. Co., 45 Md. 361, 379, 24 Am. Rep. 511, per Robinson, J. (a case of taxation).

"Fidelity Title & Trust Co. v. Schenley Park & Highlands Rd. Co., 189 Pa. 363, 370, 42 Atl. 140, 69 Am. St. Rep. 815.

32 Morse v. Garner, 1 Strobh. (S. C.) 514, 520, held not an incorporeal hereditament "in this State." See notes under next following section herein.

33 "These incorporated franchises seem, indeed with some impropriety, to be classed by writers among her

editaments, since they have no inheritable quality, inasmuch as a corporation, in cases where there is no express limitation to its continuance by the charter, is supposed never to die, but to be clothed with a kind of legal immortality." 3 Kent's Comm. (14th ed.) bottom p. 727, *459; quoted in dissenting opinion of Tapley, J., in Kennebec & Portland Rd. Co. v. Portland & Kennebec Rd. Co., 59 Me. 966 (a case of mortgage and foreclosure of franchise, etc., of railroad).

34 Randolph v. Larned, 27 N. J. Eq. 557, 561, per Green, J.

35 Budd v. Multnomah St. Rd. Co., 15 Oreg. 404, 15 Pac. 654.

36 United States: Louisville & Jeffersonville Ferry Co. v. Kentucky,