licensing ferries for transportation of persons and property, is to secure the public accommodation. For the attainment of this end, but as subordinate to it, when a ferry franchise is granted, the right to take lawful tolls is conferred as an equivalent for the obligations to the public. Although the taking of such tolls is privati juris and incident to the franchise, a ferry is publici juris, and cannot be created without a franchise, and is a thing of public interest and use. A ferry also forms a part of a public highway, and as such it is a thing of public interest.63

63 Montgomery v. Multnomah Ry. Co., 11 Oreg. 344, 347, 348, 3 Pac. 435, quoting Attorney General v. Boston, 123 Mass. 478.

Co., 29 Ky. L. Rep. 527, 93 S. W. purposes of this prerogative, it will 650. be seen that it was vested in the king as a means by which a business, in which the whole community were interested, could be regulated. In other words, it was simply one mode of exercising a prerogative of government, that is to say, through the sovereign instead of through parliament, in a matter of public concern. These and similar prerogatives were vested in the king for public purposes, and not for his private advantage or emolument." People v. Budd, 117 N. Y. 1, 17, 18, 26 N. Y. St. R. 533, 22 N. E. 670, 682, per Andrews, J.

"Therefore, although the public convenience is the occasion of granting franchises of this nature, and, for example, the ferry established on the road chartered is publici juris, yet the property is private, and consequently an injury to it may be the subject of an action, for no person could be expected to serve the public by bestowing his time, labor and money in establishing a ferry or erecting a bridge, if its value could be immediately destroyed by the caprice or malice of private persons, in adopting means of drawing away the custom to some establishment of their own. It is, then, truly the interest of the public, as well as an instance of the private justice due to an individual, that the public grant of franchises of this kind should be protected by being held to be exclusive in the grantee, unless legally and duly ordered otherwise by the public authorities." Norris v. Farmers' & Teamsters' Co., 6 Cal. 590, 595, 65 Am. Dec. 535.

A ferry is in some sense an extension of a public road." Burlington & Henderson County Ferry Co. v. Davis, 48 Iowa, 133, 137, 30 Am. Rep. 390, per Adams, J. (a case of power to grant ferry license).

"Though a ferry be in its nature part of a highway, yet it is in many respects distinguishable; and from the earliest times of the colonial government, in Massachusetts, the mode of establishing ferries, and that of laying out highways, have been kept distinct." Fay, Petitioner, 15 Pick. (32 Mass.) 243, 249, per Shaw, C. J. A ferry forms part of, and can only exist in connection with, a public

"When we recur to the origin and highway, or as a connecting link be

§ 81. Fire Engine Company.-A fire engine company is a quasi-municipal corporation.64 And if a fire company is incorporated for the purpose of rendering public service, a member thereof, even though such company is not connected officially with the municipality, is held to be within the provisions of the Civil Service Law prohibiting removal, except for cause and upon hearing, of a person under municipal employment or holding a municipal position and who has served in the volunteer fire department for the specified period of `time.65

§ 82. Gas Companies-Public Service Corporation.-The manufacture and distribution of illuminating gas, by means of pipes or conduits placed, under legislative authority, in the streets of a town or city, is a business of a public character." "The manufacture of gas, and its distribution for public and private use by means of pipes laid, under legislative authority, in the streets and ways of a city, is not an ordinary business in which everyone may engage, but is a franchise belonging to the government, to be granted, for the accomplishment of public objects, to whomsoever, and upon what terms it pleases. It is a business of a public nature, and meets a public necessity for which the State may make provision. It is one which, so far from affecting the public injuriously, has become one of the most important agencies of civilization, for the promotion of public convenience and the public safety." 67 So, in a Wis

tween places in which the public has Fuel Co., 21 Pa. Co. Ct. R. 503, rights, on paying the tolls prescribed 508. by public authority. Hackett v. Wilson, 12 Oreg. 25, 6 Pac. 652.

4 Cole v. Greenwich Fire Engine

Co., 12 R. I. 202.

Gas company as public corporation. See Sanderson v. Commissioners, 3 Pa. Com. Pl. 1, 6.

Gas company not a public corpo

Met

"People v. Folks, 85 N. Y. Supp. ration. See New York Central & 1100, 89 App. Div. 171. Hudson River Rd. Co., In re, v. ropolitan Gas Light Co., 63 N. Y. 326.

"New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 658, 29 L. ed. 516, 6 Sup. Ct. 252, per Harlan, J.

Gas company is somewhat public in its nature. Hagan v. Fayette Gas

Gas and light companies perform quasi-public duties. Commonwealth v. Northern Light & Power Co., 145 Pa. 105, 22 Atl. 839, 14 L. R. A. 107.

67 New Orleans Gas Co. v. Louisi

consin case, it is declared that the business of supplying gas and electricity, to meet the demands of the inhabitants of a community, under grant of the State or of a municipal corporation, is of a public nature. It is, in character, a public business and like that of common carriers, warehousemen and other enterprises in which the community has an interest different from what it has in private enterprises devoted to manufacturing and merchandising the common articles of trade. So the legislative grant of an exclusive right to supply gas to a municipality and its inhabitants, by means of pipes and mains laid through the public streets, and upon condition of the performance of the service by the grantee, is a grant of

68

ana Light Co., 115 U. S. 650, 669, 29 L. ed. 516, 6 Sup. Ct. 252, per Harlan, J.

* Madison, City of, v. Madison Gas & Electric Co., 129 Wis. 249, 263, 108 N. W. 65, per Siebecker, J., citing Gibbs v. Consolidated Gas Co., 130 U. S. 396, 32 L. ed. 979, 9 Sup. Ct. 553; Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683, 29 L. ed. 510, 6 Sup. Ct. 265; Chicago Gas Light & Coke Co. v. People's Gas Light & Coke Co., 121 Ill. 530, 13 N. E. 169; St. Louis v. St. Louis Gas Co., 70 Mo. 69; Shepard v. Milwaukee Gas Light Co., 6 Wis. 539, quoting also to same effect New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 6 Sup. Ct. 265, 29 L. ed. 516.

Gas Co., 6 Wisconsin, 539; Chicago Gas Light & Coke Co. v. People's Gas Light & Coke Co., 121 Illinois, 530; St. Louis v. St. Louis Gas Light Co., 70 Missouri, 69. Hence, while it is justly urged that those rules which say that a given contract is against public policy, should not be arbitrarily extended so as to interfere with the freedom of contract, Printing, etc., Registering Co. v. Sampson, L. R. 19 Eq. 462, yet in the instance of business of such character that it presumably cannot be restrained to any extent whatever without prejudice to the public interest, courts decline to enforce or sustain contracts imposing such restraint, however partial, because in contravention of public policy. This subject is much considered, and the authorities cited in West Virginia Transportation Co. v. Ohio River Pipe Line Co., 22 W. Va. 600; Chicago, etc., Gas Co. v.

"The supplying of illuminating gas is a business of a public nature to meet a public necessity. It is not a business like that of an ordinary corporation engaged in the manufacture of articles that may be furnished by People's Gas Co., 121 Illinois, 530; individual effort. New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. 252; Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683, 29 L. ed. 510, 6 Sup. Ct. 265; Shepard v. Milwaukee

Western Union Telegraph Co. v. American Union Telegraph Co., 65 Georgia, 160." Gibbs v. Consolidated Gas Co. of Baltimore, 130 U. S. 408, 409, 32 L. ed. 979, 9 Sup. Ct. 553, per Mr. Chief Justice Fuller.

69

a franchise vested in the State, in consideration of the performance of a public service, and after performance by the grantee, is a contract protected by the Constitution of the United States against state legislation to impair it. Again, a gas company as a public service corporation may fix a rate less than the maximum rate specified in a statute as that to be charged, and in such case the court will not, it is held, have power to determine that the company's charge is unreasonably high.70 Under the Public Service Commissions Law of New York," the term "gas corporation," when used in that act, includes every corporation, company, association, joint-stock association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, owning, operating, managing or controlling any plant or property for manufacturing or distributing and selling for distribution or distributing illuminating gas (natural or manufactured) for light, heat or power.

§ 83. Gas-Natural Gas Companies.-A natural gas company is a public corporation when organized under a statute, providing for the incorporation and regulation of such companies, and also that the transportation and supply of natural gas for public consumption shall be a public use, and further granting the right of eminent domain and all other powers and privileges necessary for the prosecution of the business for which such companies are incorporated.72 Such a company is also called a quasi-public corporation, which cannot discriminate by charging more for gas for lighting than for heating, where it is incorporated for the purpose of furnishing natural olis, City of, v. Consumers' Gas Trust Co., 144 Fed. 640, 75 C. C. A. 442.

Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683, 29 L. ed. 510, 6 Sup. Ct. 265.

70 Brooklyn Union Gas Co. v. City of New York, 100 N. Y. Supp. 625, 115 App. Div. 69, aff'd 81 N. E. 141. See also People's Gas Light & Coke Co. v. Hale, 94 Ill. App. 406.

Gas company considered as public service corporation, see Indianap

71 Laws 1907, p. 892, chap. 429, art. 1, § 2.

72 St. Mary's Gas Co. V. Elk County, 191 Pa. 458, 43 Atl. 421.

Is impressed with a public character. Indiana Natural & Illuminating Gas Co. v. State, 158 Ind. 516, 63 N. E. 220, 57 L. R. A. 561.

gas for heat and light." Where a municipality has granted a franchise to a gas company to occupy the streets with its pipes, compulsory service to all consumers along the line may be required of the company by ordinance of the city.74 So a State may regulate the pressure of natural gas transported in pipes within its borders, and such a regulation is not an unlawful interference with interstate commerce.75 And the furnishing of such gas to municipal corporations and their inhabitants constitutes a public use within the taxing power.76

§84. Gas Company - Natural Gas Company - When "Manufacturing " Company.-A gas company engaged in manufacturing and supplying illuminating gas is included in the term "manufacturing" company." But while the production of illuminating gas is a manufacture, the liberation of natural gas from the earth is not.78

§ 85. Heating Corporation.-A heating corporation which is organized to supply heat by circulating hot water, through pipes in city streets to buildings, is not a public or quasi-public corporation.79

§ 86. Hospital Corporation.-Where a statute provides for

73 Bailey v. Fayette Gas Fuel Co. (Pa.), 44 Wkly. N. C. 505, 44 Atl. 251. See People's Gaslight & Coke Co. v. Hale, 94 Ill. App. 406. Compare Philadelphia Co. v. Park, 138 Pa. 346, 22 Atl. 26.

Unlawful discrimination-regulation of charges-Federal Constitution-equal protection of laws, see Indiana Natural & Illuminating Gas Co. v. State, 158 Ind. 516, 57 L. R. A. 761, 63 N. E. 220.

74 Rushville v. Rushville Natural Gas Co., 132 Ind. 575, 15 L. R. A. 321, 28 N. E. 353.

75 Jamieson v. Indianapolis Nat. Gas Co., 128 Ind. 555, 10 Ry. & Corp.

L. J. 163, 12 L. R. A. 652, 28 N. E. 76, 44 Alb. L. J. 145.

76 State, Attorney General, v. Toledo, 48 Ohio St. 112, 25 Ohio L. J. 218, 34 Am. & Eng. Corp. Cas. 28, 26 N. E. 1061, 11 L. R. A. 729. See also as to public use Toledo v. Northwestern Ohio Natural Gas Co., 5 Ohio C. C. 557.

"Nassau Gaslight Co. v. City of Brooklyn, 89 N. Y. 409, 25 Hun (N. Y.), 567.

78 Commonwealth v. Northern Electric Light & Power Co., 145 Pa. 105, 117, 22 Atl. 83, 14 L. R. A. 107, per Williams, J.

70 Evans v. Boston Heating Co., 157 Mass. 37, 31 N. E. 698.