Bradley," that: "The power (of legislation) does not rest simply upon the ground that the reclamation must be necessary for the public health. That indeed is one ground for interposition by the state, but not the only one. Statutes authorizing drainage of swamp lands have frequently been upheld independently of any effect upon the public health, as reasonable regulations for the general advantage of those, who are treated for this purpose as owners of a common property." As pointed out in Secs. 63 and 64, ante, companies under regulation and control of general statutes regarding canals for navigation and irrigation, so is the case as to drains and levees.50 In the latter of the cases cited in the annexed note it was said: "There can be no question now as to the power of the legislature to create such a company and to invest it with all the necessary power and authority to construct whatever works (levee purposes) may be necessary to accomplish the object intended and to raise the funds to pay for the same by assessments on the land to be benefitted thereby."

49 164 U. S. 112, 163, 17 Sup. Ct. 56, 41 L. Ed. 369.

50 Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 70 S. W. 721, 60 L. R. A. 190; Columbia Bottom Levee Co. v. Meier, 39 Mo. 53.

CHAPTER XIII.

MODERN BUSINESS REQUIRING PUBLIC FRANCHISES.

§ 68. Preliminary.

69. Franchise for a railroad business.

70. Franchise for street and suburban railways.

71. Franchise for telegraph and telephone businesses. 72. Franchises for lighting companies.

73. Franchise for municipal waterworks.

§ 68. Preliminary.-As urged in chapter XI, it is the nature of his employment, and not that it was being exercised under his right to use a public highway,1 whether on land or water, which makes one's business affected with a public interest. This principle is peculiarly applicable to the business of carriers as conducted wholly independently of highways in which the public have an interest. It may have been in old days, that there was, speaking almost universally, no common carrier, whose business was not carried on on a public highway, but this did not give to his calling anything of the nature of a public interest. This was but an incident of the business and no more of essence than of that of an innkeeper. The business of a carrier, which is known in our day, but was unknown to our common law, has as little relation to a highway, which everyone is free to use, unconditionally or by payment of a toll, as any other business at common law than carrier, and in which there was a right affected with a public interest. It is true that a railroad has been called a public highway, but it is thus as

1 Sec. 54, ante.

2 Sun Printing, etc., Ass'n v. New York, 152 N. Y. 257, 46 N. E. 499, 37 L. R. A. 788; Cherokee Nation v. So. Kansas R. Co., 135 U. S. 641, 10 Sup. Ct. 965; 34 L. Ed. 295.

coming under a generic name and not as indicating any general rights in the public as in an ordinary highway. Indeed, it is for the special use of the company building it and placing thereon cars to which every one is entitled to admission the same as a traveler on a toll road. One may not, however, as such traveler go upon a railroad, as matter of right, unless at a public crossing, but only in a conveyance to be propelled or drawn on a railroad track. The track, therefore, is a necessary incident to the business, but the business itself takes on its public character by reason of its nature.

In the same way it may be said of telephone and telegraph lines, gas pipes, electric conveyers and water pipes. The power vested in such companies to run these necessary instrumentalities for the conduct of their business, wherever their charter may authorize, may assist, by reason of privileges granted them, in the way of evidence, to stamp upon them a character affected by a public interest. Nevertheless it is necessary to recur to the purpose for which these privileges are granted, to ascertain if such grant is a valid exercise of state power.

$69. Franchise for a Railroad Business. It possibly may be true, that individual owners of all the land extending from initial, to terminal point of a railroad track might lawfully hold themselves out as common carriers over such track, and there would be no necessity for them to be granted a franchise from the state to carry on business. But this suggestion is as to a question purely academic. Thus it has been said by Justice Field: "The franchises of a railroad corporation are rights and privileges which are essen

tial to the operations of the corporation, and without which its road and works would be of little value; such as the franchise to run cars, to take tolls, to appropriate earth and gravel for the bed of its road or water for its engines and the like. They are positive rights and privileges, without the possession of which the road of the company could not be successfully worked. ''3

It is to be doubted whether, if one had his own land to run upon and could there obtain necessary gravel and water, that additionally he would as a common carrier need a franchise to charge reasonable compensation for his services or to run cars thereon, unless, indeed, he obstructed a highway crossed by his track, whether on land or by water. The justice was merely describing conditions as to the railroad at bar and which would obtain as to every other railroad, speaking at least in a general, and, perhaps, universal sense. It is, therefore, in view of the fact, that a railroad always needs other things than the mere right to lay a track and charge for transportation thereon that courts have said that: "The right to make and maintain a railway and take tolls or fares is such a privilege or immunity, for the same reason that the right to build an ordinary road and levy tolls thereon, is, viz.: that a railroad is but an improved modern highway, one which it is the duty and interest of the government to construct where the public interest and convenience demand it.""4

It has been said that: "A proprietor may open a passage through his own land for his own accommoda

* Morgan v. Louisiana, 93 U. S. 217, 223, 23 L. Ed. 860.

♦ Blake v. Winona & St. P. R. Co., 19 Minn. 418, 18 Am. Rep. 345.

tion, and he may permit others to pass it under an agreement for compensation. He may improve his watercourse by dams, locks or otherwise and withhold their use from all who will not make him a reasonable compensation. He may yield the enjoyment to one and refuse it to another. But as toll, as a settled, certain and defined sum exacted for the use of a common passage, we doubt whether it can be recovered.""5 Therefore it may be thought, that there is need of a franchise "to build and maintain a railway and take tolls and fares," in the sense that a toll is not the product of an agreement merely to pay compensation, but is a "settled, certain and defined sum for use of a common passage”—to recover which no agreement to pay and no proof of its being a valuable service reasonably exacted need be shown. In view of the fact, further, that a proposed railway always intends to charge a toll or fare and not compensation by private agreement and that it is to hold itself out to the public as ready to serve the entire public on the payment of a certain toll or fare and without discrimination as to any, it is evident that a franchise is necessary for the carrying on of its business. Also, it may be said, that as charters or incorporations under general law prescribe the route of a proposed railroad the analogy to a turnpike road laid out by public autuority, as indicated by calling a railroad "an improved modern highway," is a further conclusive reason for the necessity of a franchise. A franchise granted and accepted is, of course, cum onere he who feels a benefit accepts its burden.

5 Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525.