hazards of business in life where a basis of risk and compensation can be estimated. In all the stages of life, from the cradle to the grave it asserts an interest and offers succor and aid. In the business enterprises, whether by land or sea; in the possessions of men, from a pane of glass to the mansion or the factory; in his undertakings involving every chance, misfortune, moral turptitude or the act of God, it demands admission and promises indemnity, reward or gain. It poses as the faithful and zealous trustee of his earnings and savings, and promises to the widow and the orphan a guarantee against misery and want. It intercedes between principal and agent, master and servant, contractor and owner, and insures against loss from almost any and every cause. It is a public necessity that deals with its own credit for a cash consideration from the assured and is stamped with public interest and must yield obedience to necessary and proper regulation by the state in the exercise of its police power.'

Were a single business agency holding itself out to the public to do all of these things, or if a franchise were necessary to do any or all of them, it would seem more apparent, that it was affected with a public interest so as to come under a more intimate control by the public than under its police power. But it is not true, that one company, or even two companies hold out to do these manifold things, and what they do do is in a business that is free for any one to enter and its essential basis is found in the right of private contract. Off hand it hardly would be said to come under the category of things Judge Cooley says" are within

46 Cooley's Const. Lim., 7th Ed. 876.

the principle in the Munn case, which he classifies as follows:

"(1) Where the business is one the following of which is not of right, but is permitted by the state as a privilege or franchise. Under this head would be comprised the business of setting up lotteries, of giving shows, etc., of keeping billiard tables for hire and of selling intoxicating drinks, when the sale by unlicensed parties is forbidden; also the cases of toll bridges. (2) Where the state, on public grounds, renders to the business special assistance, by taxation or otherwise. (3) Where for the accommodation of the business, some special use is allowed to be made of public property or of a public easement. (4) Where exclusive privileges are granted in consideration of some special return to be made to the public. Possibly there may be other cases."

In a New Jersey case," where there was a decree to cancel an agreement between insurance companies to regulate rates, alleged to be against public policy as in restraint of trade, in the majority opinion it was said: "Whatever concerns business credit ex necessitate touches a matter in which the public is directly interested. The impairment or embarrassment of business credit affects immediately not only the demand for money and the volume of business transacted, but also the inaugurating of new enterprises, the employment of people and the payment of wages they would otherwise receive and spend and thus ramifies in its effects from the greatest banking houses, through the homes of the unemployed or the badly

47 New Jersey Excel. v. Firemen's Insurance Co., 74 N. J. Eq. 372, 73 Atl. 80, 29 L. R. A. (N. S.) 1194.

paid, to the smallest retail shops." After proceeding further along this line the court says: "It seems to me that it is impossible to say that by its very growth and success the business of fire insurance has not become affected with a public interest within the principle of Munn v. Illinois." Here it would seem that principally it was held that the growth of a business and not the business in its nature or essence is a reason for its being affected with a public interest. If this is a proper application of Munn v. Illinois it is not very apparent from the reasoning of the court in that case.

48

A Pensylvania case1s did not express itself quite so positively, but it said: "In view of the magnitude and the nature of the insurance business, it is apparent that the public is largely interested in all that relates to it." But this does not necessarily indicate anything more than that there might be general laws regulating it under police power. These expressions may be regarded merely as obiter, but it has been held didirectly that insurance is a business so affected with a public interest, that rates in contracts therefor may be controlled by the state." A decision by the U. S. Supreme Court seems so greatly to extend the principles declared in Munn v. Illinois that it should be treated in another chapter.50 There is discussed in the opinion in the Lewis case the right of regulation under the police power and that under the right of treating property as affected with a public interest.

48 Com. v. Vrooman, 164 Pa. 306, 30 Atl. 217, 25 L. R. A. 251, 44 Am. St. Rep. 603.

49 German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915 C 1189.

50 Infra, Sec. 101, ch. 12.

The chapter indicated should prove very instructive, indeed. A recent case by the Supreme Court of Arkansas says: "The public are so largely affected by it (fire insurance) that the state undertakes to supervise the business of prescribing the conditions upon which it may be done. But while the business is impressed with a public use, and is therefore of a quasipublic character and subject to license and regulation, it is not so entirely of a public nature that the public have a right to demand service of the companies authorized to do business in the states as they may do if purely quasi-public corporations or agencies." This case will be adverted to again in the chapter just referred to.

51 National Union Fire Ins. Co. v. Dickinson, Ark., 194 S. W. 254.

CHAPTER XII.

CALLINGS FOR WHICH FRANCHISES ARE NECESSARY

§ 61. Franchise with reference to callings.

62. Franchise to run a ferry.

63. Franchise to build a public bridge. 64. Franchise for turnpike or toll road. 65. Franchise to canal for navigation. 66. Franchise for canals for irrigation. 67. Drains and levees.

$61. Franchise With Reference to Callings.-Our Supreme Court has defined a franchise to be a special privilege conferred by the government upon an individual or corporation, which does not belong to the citizens of the country generally by common right.1 Here we are not concerned with the kind of a franchise which enables individuals to become a body corporate and politic, nor in the broader sense of the term which includes the enjoyment of rights accorded to the ordinary citizen, such as trial by jury, to hold office, to vote, to the writ of habeas corpus, etc. The franchise to be considered in this chapter lies in special grant from the government to pursue a calling not open to any citizen of his own choice nor to any class or aggregation of citizens of their own choice. What is subjection to the authority granting such a franchise, in and concerning the pursuit of such calling, because of the acceptance of the franchise, also will be considered. The callings treated herein group themselves around that of common carrier and which are

1 California v. Central Pac. R. Co., 127 U. S. 1, 40, 8 Sup. Ct. 1073, 32 L. Ed. 150.