whether it be obtained by a special charter or under a general incorporation law, is a franchise granted by the State to such, and such only, as she deems fit to be intrusted with its exercise." 31

14. Common Carriers-Railroads-Street Railroads.Although the business of a common carrier is not of itself a franchise, but is general and has its foundation in the common law, needing in itself no legislative authority,32 still a grant to a corporation of a right to lay out, construct and operate a railroad, is a franchise.33 So a grant by a municipal corporation to a railway company of a right of way through certain streets of the municipality, with the right to construct its railroads thereon. and occupy them for its use, constitutes a franchise.34 It is also said that "the right of a railroad company to be, and to build a road is a franchise;" 35 it is a grant to the corporation of the capacity to exercise a portion of the powers of sovereignty for the purpose of making a pecuniary profit to itself.36 So the

Co. v. Roll, 66 N. Y. Supp. 748, 749, 750, 32 Misc. 321; Miller v. Rutland & Washington Rd. Co., 36 Vt. 452, 494, per Barrett, J., quoting from

31 State v. Travellers' Ins. Co., 70 Conn. 590, 600, 40 Atl. 465, 66 Am. St. Rep. 138, per Baldwin, J. (Taxation). 32 McGregor v. Erie Ry. Co., 35 Bank of Middlebury v. Edgerton, 30 N. J. L. 89, 96, per Bedle, J.

33 People's Railroad v. Memphis Railroad, 10 Wall. (77 U. S.) 38, 51, 19 L. ed. 844, per Clifford, J. [citing Beekman v. Saratoga & Schenectady Rd. Co., 3 Paige Ch. (N. Y.) 45; Willoughby v. Horridge, 16 Eng. L. & Eq. 437, 3 Kent's Comm. (11th ed.) 590]; Driscoll v. Norwich & Worcester Rd. Co., 65 Conn. 230, 254, 32 Atl. 354, per Andrews, C. J.; Milhau v. Sharp, 27 N. Y. 611, 619, per Selden, J.

See the following cases: Kennebec & Portland Rd. Co. v. Portland & Kennebec Rd. Co., 59 Me. 9, 66, dissenting opinion of Tapley, J.; New York, Lackawanna & Western Ry.

Vt. 190, per Bennett, J.; Camblos v. Philadelphia & Reading Rd. Co., 4 Brewster (Pa.), 563, 596, 597, per Cadwalader, Dist. J.; Thorpe v. Rutland & Burlington Rd. Co., 27 Vt. 140, 62 Am. Dec. 625; State v. Boston, Concord & Montreal Rd. Co., 25 Vt. 433, 442, per Redfield, Ch. J.

34 New Orleans, Spanish Fort & Lake Rd. Co. v. Delamore, 114 U. S. 501, 5 Sup. Ct. 1009, 29 L. ed. 244. See §§ 47, 48, herein.

35 Consolidated Gas Co. v. Baltimore City, 101 Md. 541, 545–548, 61 Atl. 532, per McSherry, C. J.

36 Driscoll v. Norwich & Worcester Rd. Co., 65 Conn. 230, 254, 32 Atl. 354, per Andrews, C. J.

39

right to build in and upon a public road or river is a franchise. In this respect the owners of wharves and railroads stand upon the same plane and have similar rights.37 Again, it is said that the right to carry passengers on a railway is a franchise requiring a specific grant from the legislature and that the right to run a railroad "is as much a part of the franchise as the right to build it." 38 It is declared, however, that the right to build, own, manage and run a railroad, or take the tolls thereon, is not, of necessity, of a corporate character, or dependent upon corporate rights, as it may belong to and be enjoyed by natural persons. The right to construct and operate a street railway is also a franchise granted by the State upon considerations of public policy.40 So in a New York case it is said that: "The right to construct and operate a street railway is a franchise which must have its source in the sovereign power, and the legislative power over the subject has this limitation, that the franchise must be granted for public and not for private purposes, or at least the grant must be based upon public considerations." 41 So a grant of a privilege by a city ordinance to a railroad company, of the use of certain streets, is a franchise.42 And a grant of powers,

37 Pennsylvania Rd. Co. v. Phila- quotation in Hatfield v. Strauss, 189 delphia Belt Line Rd. Co., 10 Pa. Co. N. Y. 208, 224, 226 (per Bartlett, J.) Ct. Rep. 625, 629. (dissenting opinion per Chase, J.), 38 McGregor v. Erie Ry. Co., 35 82 N. E. 172; case affirms 102 N. Y. N. J. L. 89, 97, per Bedle, J. Supp. 934, 117 App. Div. 671.

39 Miller v. Rutland & Washington Rd. Co., 36 Vt. 452, 494, per Barrett, J. (citing Bank of Middlebury v. Edgerton, 30 Vt. 182, 190); Joy v. Jackson & Michigan Plank Road Co., 11 Mich. 155, 164, 165, per Christiancy, J.

40 Thompson v. Schenectady Ry. Co., 131 Fed. 577, 579, per Wallace, Cir. J. See §§ 47, 48, herein.

41 Paige v. Schenectady Ry. Co. (Thompson v. Same), 178 N. Y. 102, 115, 70 N. E. 213, per Martin, J., case reverses 82 N. Y. Supp. 192, 84 App. Div. 91. Substantially same

The right to construct and operate a street railway in a city and to take tolls from persons traveling on the same is a franchise. Denver & S. Ry. Co. v. Denver City Ry. Co., 2 Colo. 673. See State v. Columbus Ry. Co., 24 Ohio Cir. Ct. 609, as to rights and franchise prior to act of May 14, 1878, 75 Ohio Laws, 359.

42 Port of Mobile v. Louisville & Nashville Rd. Co., 84 Ala. 115, 4 So. 106 (the original charter here granted the right to use any street or highway and the amended charter authorized grants by cities, etc., of rights, privi

privileges and immunities conferred by a resolution of a municipality, to run a street railroad in the city, is the grant of a franchise which is void if made without the proper legislative authority.43 But the right of a city railway company to use certain streets acquired by contract with the city and giving an exclusive right, constitutes no part of the franchise of the company and is not of itself a franchise, although it is in the nature of property and an incorporeal right.44 In a Wisconsin case the court, in discussing the question of the proper remedy, under a statute, for usurping or unlawfully holding or exercising, etc., "any franchise," says that a street railway franchise is of the same nature as that of a franchise to operate a system of public waterworks in the streets of a city, and while not a corporate franchise necessary to corporate existence, it is still a franchise or "special privilege, within the statute, granted by sovereign authority and the State may always inquire into the title by which it is held, and render judgment of ouster if the party assuming to exercise it has not title thereto." 45

§ 15. Bridges-Roadways-Ferries-Canals.-The right to construct and maintain a public bridge is a franchise.46 So

leges and franchises within city limits).

may be exercised without the consent of the city councils. Philadel*State v. Mayor, etc., of New phia, City of, v. McManes, 175 Pa. York, 3 Duer (N. Y.), 119. 28, 34 Atl. 331.

The right or privilege of construct- As to franchise to construct connecting and operating railroads in the ing switch from a street railway track streets is called a "franchise" for to a warehouse, under ordinance, convenience. Adee v. Nassau Elec- granting "permission to connect," tric Rd. Co., 72 N. Y. Supp. 992, see Dulaney v. United Rys. & Elec1000, 65 App. Div. 529, per Wood- tric Co., 104 Md. 423, 65 Atl. 45. ward, J., case aff'd (Mem.) 177 N. Y. 548, 69 N. E. 1120.

Railway in park. The commissioners of Fairmount Park in the city of Philadelphia have the power to grant to an individual or a foreign corporation the franchise or power to construct a passenger railway in Fairmount Park, and such franchise

"Metropolitan City Ry. Co. v. Chicago West, Division Ry. Co., 87 Ill. 317, 322.

45 State ex rel. Vilter Mfg. Co. v. Milwaukee, Burlington & Lake Geneva Rd. Co., 116 Wis. 142, 92 N. W. 546, per Winslow, J.

46

County Commissioners v. Chandler, 96 U. S. 205, 209, 24 L. ed. 625,

it is said in a case in the Federal Supreme Court, that: "The corporation had conferred on it a public right of partially obstructing the river, which is a common highway, and which obstruction would have been a nuisance if done without public authority. This special privilege, conferred on the corporation by the sovereign power, of obstructing the navigation, did not belong to the country generally by common right and is therefore a franchise." 47 And the rule would apply to the right of a riparian proprietor to make a roadway, which includes a right of way, and to erect a bridge which is to be a drawbridge.48 Bridges are of the same nature as

per Bradley, J.; Davis v. Mayor of New York, 14 N. Y. 506, 523, 67 Am. Dec. 186, per Denio, C. J. See Norris v. Farmers' & Teamsters' Co., 6 Cal. 590, 595, 65 Am. Dec. 535; Tuckahoe Canal Co. v. Tuckahoe Rd. Co., 11 Leigh (Va.), 42, 75, per Tucker, P.

The consideration for building the bridge for the political corporation was the franchise granted to the building corporation. Police Jury v. Bridge Co., 44 La. Ann. 137, 138, 10 So. 617.

As to bridge as a structure not being a franchise see Smith v. Mayor, etc., of New York, 68 N. Y. 552, 555, per Earl, J.; opinion given in § 34, herein, as to distinctions.

Buffalo County, 4 Neb. 150, 158, per
Maxwell, J. (is part of a road).

Oregon: Bank of Idaho v. Malheur County, 30 Oreg. 420, 423, 45 Pac. 781, 35 L. R. A., 141 per Moore, J. (is part of highway; a case of mechanic's lien on public property).

Pennsylvania: Westfield Borough v. Tioga County, 150 Pa. 152, 153, 24 Atl. 700, per Mitchell, P. J. (defined as part of public highway); Commonwealth ex rel. Freeman v. Westfield Borough, 11 Pa. Co. Ct. R. 369, 372, per Mitchell, C. J. (defined; is part of public highway).

England: Rex v. Inhabitants of Bucks County, 12 East, 192, 203, 204, per Lord Ellenborough, C. J. (dePublic bridge defined and as part of fined; is part of public highway); road or highway see:

Alabama: State v. Street, 117 Ala. 203, 208, 23 So. 807, per Brickell, C. J. (defined and declared part of road or highway).

Montana: Cascade County v. City of Great Falls, 18 Mont. 537, 540, 46 Pac. 437 (is part of highway).

Nebraska: Union Pacific Rd. Co. v. Commissioners of Colfax County, 4 Neb. 450, 456, per Maxwell, J. (defined as part of common highway and considered as an internal improvement); People, Commissioners of, v.

Rex v. Inhabitants of Yorkshire, 2 East, 342, 349, per Lord Ellenborough, C. J.

That "bridge" does not include approaches under statute relating to liabilities of cities and counties for construction and repairs, see Central City v. Morquis (Neb., 1905), 106 N. W. 221, under Cobbey's Ann. Stat., 1903, § 8756.

47 Covington Drawbridge Co. v. Shepherd, 21 How. (62 U. S.) 112, 123, 16 L. ed. 38, per Catron, J.

48 Trustees of Southampton v.

ferries; a bridge franchise differs in no essential from a ferry franchise except in the mode or manner of transportation; both are for the same purpose, that is, to transfer men, cattle and vehicles across a stream for tolls.49 So a right to establish and maintain a public ferry is a franchise,5o and it is said

Arkansas: Bell v. Clegg, 25 Ark. Report. 26, 28, per Compton, J.

California: Norris v. Farmers' & Teamsters' Co., 6 Cal. 590, 595, 65 Am. Dec. 535.

Massachusetts: Fay, Petitioner, 15 Pick. (32 Mass.) 243, 249, per