build, own and manage a railroad, and to take tolls thereon, are not necessarily corporate rights; they are capable of existing and being enjoyed by natural persons. The franchise of maintaining a plank road and taking tolls, is not necessarily a corporate franchise, more than that of a ferry.3

§ 31. "Corporate Powers or Privileges" not Franchises Essential to Corporate Existence.-In granting franchises to street railway corporations to use and occupy city streets, a common council may exercise delegated legislative powers, but they are not grants of "corporate powers or privileges" under a constitution prohibiting the enactment of any special or private law granting corporate powers or privileges. They are not franchises essential to corporate existence, granted as part of the organic act of incorporation, but are such as may be sold and assigned, if assignable, or lost by forfeiture, and yet not affect the corporate existence of the street railway. It is said, however, that some confusion undoubtedly exists in the cases upon this subject and such franchises have been sometimes called "corporate franchises," but that this does not affect the true character of the franchises."

§ 32. Franchises and Powers-To What Extent Distinguished.—A distinction is made in a Minnesota case between

Joy v. Jackson & Michigan Plank corporate charters. This is implied Road Co., 11 Mich. 155, 164, 165, per Christiancy, J.

• Linden Land Co. v. Milwaukee Elect. Ry. & Light Co., 107 Wis. 493, 513, 514, 83 N. W. 858, per Winslow, J.

not only by the word grant, but also by the word corporate. A franchise is not essentially corporate; and it is not the grant of franchise which is prohibited, but of corporate franchise; that is, as we understand it, franchise by act of incorporation." Attorney Gen'l v. Chicago & Northwestern Rd. Co., 35 Wis. 425, 560, per Ryan, C. J., quoted in Brady v. Moulton, 61 Minn. 185, 186, per Mitchell, J. (holding that a special law authorizing a city to issue bonds

"We feel bound to hold, and find no difficulty in holding, the phrase in the amendment" (of a state constitution prohibiting the legislature from passing special laws, amongst other purposes, for corporate powers or privileges, except to cities) "to grant corporate powers or privileges, for waterworks is not a grant of to mean in principio donationis, and "corporate powers or privileges unequivalent to the phrase, to grant der the state constitutional pro

franchises and powers, and it is said that in order to constitute a franchise the right possessed, the privilege or immunity of a public nature must be such as to require the express permission of the sovereign power, through legislative authorization or grant, to warrant its exercise; that the right, whether existing in a natural or artificial person, to carry on any particular business is not necessarily a franchise; that a business which corporations are organized to carry on under a statute are powers and not franchises where such right is one possessed by all citizens who choose to engage in it without any legislative grant; and that the only franchise which corporations so organized possess is the general franchise to be or exist as a corporate entity so that if they engage in any business not authorized by the statute it is ultra vires or in excess of their powers, but not a usurpation of franchises not granted nor necessarily a misuser of those granted. It is also declared, however, that the term power is in a sense synonymous with franchise. Thus, the capacity or liability to incur obligations in conducting the legitimate business of banking is said not to be a power in any just sense. So it is asserted that: "The various powers conferred on corporations are franchises; the execution of a policy of insurance by an insurance company, and the issuing of a bank note by an incorporated banking company are the exercise of franchises; without legislative authority neither could be lawfully done by a corporation.' And in a case in the Federal Supreme Court it is said that: "The franchise to be a corporation is distinguished from the franchise to exercise as a corporation the banking powers named in this charter." 10 It may be stated, in this connec

vision substantially the same as that distinction between franchises and last above considered).

7 State V. Minnesota Thresher Mfg. Co., 40 Minn. 213, 225, 226, 41 N. W. 1020, 3 L. R. A. 510, per Mitchell, J.

Examine Wait on Operations Preliminary to Construction in Engineering & Architecture, § 862, as to

powers, in substance same as the last above cited case, but citing no cases. 8 Curtis v. Leavitt, 15 N. Y. 9, 170, per Shankland, J.

'State v. Mayor, etc., of New York, 3 Duer (N. Y.), 119, 144, per Bosworth, J.

10 Mercantile Bank v. Tennessee,

tion, that all the functions of a corporation are, in one sense franchises. Thus, the right to hold property in the corporate name, to sue and be sued in that capacity, to have and to use a corporate seal, and by that to contract, and some others, perhaps, are franchises, which constitute the very definition of a corporation. And whenever and wherever the corporation is recognized, for any purpose, the existence and exercise of these franchises must also be recognized.11

§ 33. Franchise to Be Separate and Distinct from Property or Franchise Which Corporation May Acquire.-Corporations may by virtue of a legislative grant of a franchise obtain or acquire certain property essential to their successful operations. Thus an electrical company which, in pursuance of a grant of a right by the proper authorities to enter upon and occupy streets or highways, proceeds to the construction and erection of its lines, obtains a right, partaking of the nature of an easement in property, of which it cannot be deprived, in the absence of a reservation of the right so to do.12 Again, it is 161 U. S. 160, 171, 40 L. ed. 656, 16 was irrevocable after acceptance, unSup. Ct. 466, per Peckham, J. (a case of judicial sale of franchises of a corporation; of tax exemption, and purchasers' rights).

11 State v. Boston, Concord & Montreal Rd. Co., 25 Vt. 433, 442, per Redfield, Ch. J.

less the power to alter or revoke was reserved." See Pikes Peak Power Co. v. City of Colorado Springs, 105 Fed. 1, 44 C. C. A. 33.

Illinois: Village of London Mills v. White, 208 Ill. 289, 70 N. E. 313, aff'g 105 Ill. App. 146; People v. Central Illinois Tel. Co., 192 Ill. 307, 61 N. E. 428.

Kansas: City of Baxter Springs v. Baxter Springs L. & P. Co., 64 Kan. 591, 68 Pac. 63, 8 Am. Elec. Cas. 125.

12 United States: City of Morristown v. East Tennessee Teleph. Co., 115 Fed. 304, 53 C. C. A. 132, 8 Am. Elec. Cas. 3. The court, per Lurton, C. J., said: that the consent of the municipal authorities "to the occupancy of the streets by poles and wires of the telephone company for the purpose of maintaining a telephone system was a grant of an easement in the streets and a conveyance of an estate or property interest, which, being in a large sense Minnesota: City of Duluth v. the exercise of a proprietory or con- Duluth Teleph. Co., 84 Minn. 486, tractual right rather than legislative, 87 N. W. 1128, 8 Am. Elec. Cas. 136;

Michigan: Mohan v. Michigan Teleph. Co.., 132 Mich. 242, 93 N. W. 629, 8 Am. Elec. Cas. 38; Michigan Teleph. Co. v. City of St. Joseph, 121 Mich. 502, 80 N. W. 383, 7 Am. Elec. Cas. 1.

declared to be settled law that when in pursuance of proper legislative authority a grant is made of a valid franchise, right or privilege to use or occupy a public street, common, or levee, or navigable waters adjacent thereon, for a public purpose, such as the construction and maintenance of wharves in aid of commerce, water tanks for use in sprinkling streets, telegraph and telephone poles, railway tracks and the like, and the grantee, relying upon such grant, expends money in prosecuting the enterprise he thereby acquires the property interest or right of which he cannot be deprived except under the power of eminent domain and upon compensation therefor. In such case the grantee acquires a right or easement different in kind from that enjoyed by the general public.13 So where the consents of abutting owners is necessary to the use of streets and the construction of an electric street railway, property rights are created, by such valid consents, which cannot be abandoned except by action of all parties interested, including the consent of the State; nor can the rights acquired under such consents be destroyed by the action of a receiver of the company appointed in foreclosure proceedings, under

Northwestern Teleph. Exch. Co. v. Minneapolis, 81 Minn. 140, 83 N. W. 527, 7 Am. Elec. Cas. 168.

New Jersey: Inhabitants of East Orange v. Suburban Elec. L. & P. Co., 59 N. J. Eq. 563, 44 Atl. 628, 7 Am. Elec. Cas. 37.

See §§ 25-27, herein.

"The right to use the public streets or highways is a property right and has an assessable value. Western Union Teleg. Co. v. City of Omaha (Neb., 1905), 103 N. W. 84, 85, 86, per Letton, C., quoting from People ex rel. Retsof Min. Co. v. Priest, 77 N. Y. Supp. 382, 75 App. Div. 131, case aff'd (Mem.) 175 N. Y. 511, 67 N. E. 1088 (which determines what franchises are taxable under the statute).

13 Mead v. Portland, 45 Oreg. 1,

9, 76 Pac. 347, per Bean, J., citing 1 Dillon, Munc. Corp. (4th ed.) §§ 110, 111, 29 Am. & Eng. Ency. of Law (1st ed.), 69; Portland & Willamette Valley Rd. Co. v. Portland, 14 Oreg. 188, 12 Pac. 265, 58 Am. Rep. 299; Savage v. Salem, 23 Oreg. 381, 31 Pac. 832, 24 L. R. A. 787, 37 Am. St. Rep. 688; City of Des Moines v. Chicago, R. I. &. P. R. Co., 41 Iowa, 569; Phillipsburg Elect. Lighting, Heating & Power Co. v. Phillipsburg, 66 N. J. L. 505, 49 Atl. 445; Langdon v. Mayor, etc., of New York, 93 N. Y. 129; Williams v. Mayor, etc., of New York, 110 N. Y. 569, 18 N. E. 435. See also Wyandotte Elec. L. Co. v. City of Wyandotte, 124 Mich. 43, 82 N. W. 821, 7 Am. Elec. Cas. 43.

an order limiting his authority to the management, operation and protection of its property, in abandoning that portion of the road to which such consents attached; nor has the city any power to authorize such abandonment.14 But where it is provided by ordinance that telegraph, telephone and electric light companies may lay wires under the streets of a city, and that such company shall remove its conduits whenever directed so to do by the city council, the company does not acquire a right of property in the street which cannot be discontinued and appropriated to another public use without compensation, but only a right to use the streets in the manner specified, which is subject to revocation, and a statute providing for the removal of electrical appliances from the streets and that the companies shall have the right either to remove the same or to put them in underground conduits which are to be constructed under regulations does not confer a franchise which includes an individual right of property in the public easement, and in such a case the right so reserved may be exercised either by the municipality or by the legislature.15 And it is also decided that though the right of an electrical company to use the streets for its purposes, is recognized as within the public easement, which was paid for in assessing damages to the owner when the street was opened, such company acquires no property rights in the streets by reason of the fact that it is authorized to construct its conduits therein by statute or ordinances which clearly do not purport to convey private rights of property.16

14 Paige v. Schenectady Ry. Co. (Thompson v. Same), 178 N. Y. 102, 70 N. E. 213, case reverses 82 N. Y. Supp. 192, 84 App. Div. 91, and Whitmyre v. Same, 84 App. Div. 91, but affirms Lansing v. Same, 84 App. Div. 91; Van Epps v. Same, 84 App. Div. 91; Beatty v. Same, 84 App. Div. 91, see 131 Fed. 577.

15 Boston Electric Light Co. v. Boston Terminal Co., 184 Mass. 566, 69 N. E. 346, 8 Am. Elec. Cas. 50.

16 New England Teleph. & Teleg. Co. v. Boston Terminal Co., 182 Mass. 397, 65 N. E. 835, 8 Am. Elec. Cas. 132. In this case the court, per Knowlton, J., said: "In this Commonwealth, on the laying out or construction of a highway or public street, the fee of the land remains in the landowner, and the public acquire an easement in the street for travel. * * * The rights, in the streets which are so exercised or