monly, the facilities afforded and furnished by private enterprise. This branch of the subject will be discussed in those sections relating to the granting of exclusive franchises for the use of the public highways. The power when granted usually provides that the public corporation itself may exercise it by the construction of such a plant1222 or by making a contract with private persons for the manufacture and the supply of the commodity.1223 Or, the corporation may exercise the power by to guarantee the bonds of a private corporation organized for the purpose of constructing and operating an electric lighting plant. 1222 Thompson Houston Elec. Co. v. City of Newton, 42 Fed. 723; Jacksonville Elec. Light Co. v. City of Jacksonville, 36 Fla. 229, 30 L. R. A. 540. In Florida, a municipality is authorized to erect and maintain an electric light plant for lighting the public streets and places of a city and also for supplying the inhabitants with light for private use where the power was conferred by charter to provide for the prevention and extinguishment of fires, for lighting the city by gas or other illuminating material or in any manner; to make appropriations for lighting the streets and public buildings, and to pass all ordinances necessary for the health, convenience and safety of the citizens to accomplish the object of the city's incorporation. Hay v. City of Springfield, 64 Ill. App. 671; City of Crawfordsville v. Braden, 130 Ind. 149; Councilmen of Frankfort v. Capital Gas & Elec. Light Co., 16 Ky. L. R. 780, 29 S. W. 855. A municipal corporation may sell its gas plant to a private concern. Hudson Elec. Light Co. v. Inhabitants of Hudson, 163 Mass. 346, 40 N. E. 109. Instead of construct ing its own plant it may purchase under authority of law from private individuals when already constructed and in operation. Mitchell v. City of Negaunee, 113 Mich. 359, 38 L. R. A. 157; Meyers v. Hudson County Elec. Co., 60 N. J. Law, 350; Linn v. Chambersburg Borough, 160 Pa. 511, 25 L. R. A. 217; Black v. City of Chester, 175 Pa. 101. 1223 City of Denver v. Hubbard, 17 Colo. App. 346, 68 Pac. 993; City of Hartford v. Hartford Elec. Light Co., 65 Conn. 324; Lott v. City of Waycross, 84 Ga. 681; City of Chicago v. Galpin, 183 Ill. 399; Nelson v. City of La Porte, 33 Ind. 258; Seward v. Town of Liberty, 142 Ind. 551; City of Newport v. Newport Light Co., 84 Ky. 166; City of Detroit v. Hosmer, 79 Mich. 384; Christensen v. City of Fremont, 45 Neb. 160; Oakley v. Atlantic City, 63 N. J. Law, 127, 44 Atl. 651; Harlem Gaslight Co. v. City of New York, 33 N. Y. 309; Bronx Gas & Elec. Co. v. City of New York, 17 Misc. 433, 41 N. Y. Supp. 358; Richmond County Gaslight Co. v. Town of Middletown, 59 N. Y. 228; Blank v. Kearny, 44 App. Div. 592, 61 N. Y. Supp. 79. City of Wellston v. Morgan, 59 Ohio St. 147. Such a contract is void when made for a period in excess of that fixed by statute but only for such excess time. Black v. City of Chester, 175 Pa. 101; Seitzinger v. Borough of Tama granting to private individuals an exclusive franchise or license for the construction of a lighting plant and the carrying on of the business of supplying light.1224 The original authority usually gives to the public corporation discretionary and volitional powers as to the method which it shall adopt for effecting the particular result desired.1225 Whether such a corporation has the power, after having once entered into a contract with a private concern or after having once granted a franchise or license, to construct itself such a plant and enter into competition with the private enterprise will depend upon the language of the contract, franchise or license. If it is exclusive in its terms and lawfully made, its obligations will be protected by the Federal Constitution against any impairment;1228 and, on the other hand, qua, 187 Pa. 539; El Paso Gas, Elec. Light & Power Co. v. City of El Paso, 22 Tex. Civ. App. 309, 54 S. W. 798. But see Hendrickson v. City of New York, 160 N. Y. 144, discussing the right of a municipality afterwards incorporated into greater New York to contract for street lighting; the contract not to take effect until after the consolidation and to run for a considerable period thereafter. Townsend Gas & Elec. Light Co. v. Hill, 24 Wash. 469, 64 Pac. 778. 1224 Parfitt v. Kings County Gas & Illuminating Co., 12 Misc. 278, 33 N. Y. Supp. 1111. See the subject fully discussed and authorities cited under those sections post relating to exclusive franchises. 1225 State v. City of Hiawatha, 53 Kan. 477; Mitchell v. City of Negaunee, 113 Mich. 359, 71 N. W. 646, 38 L. R. A. 157; Christensen v. City of Fremont, 45 Neb. 160, 63 N. W. 364; Howell v. City of Millville, 60 N. J. Law, 95, 36 Atl. 691. the granted power to provide for "lighting the streets" does not convey the power by implication to rent and maintain an electric light But plant, nor from act of May 22, 1894, granting the power to provide for "lighting of public streets and places in the cities, towns, townships, boroughs, and villages of the state" can this power be inferred. Black v. City of Chester, 175 Pa. 101. 1226 Southwest Missouri Light Co. v. City of Joplin, 113 Fed. 817. "That a contract was made I have no doubt. What was the contract? Complainant was to erect the plant at its sole expense and do so in the way above enumerated. It was to operate its plant at its sole expense. It was 'to supply private lights for the use of the inhabitants of the city and its suburbs,' in the language of the statute. The complainant was obligated to erect its works, place its poles and string its wires. Its only compensation, and the only way it could be reimbursed, was to charge the private consumers. And it was to charge the private consumers the ordinance rates. What consumers did the ordinance contemplate? All those needing the lights, and able and willing to pay the ordinance rates. Such was the contract. Has if it clearly appears from the language of the franchise or license that no such exclusive privileges were ever given or intended to be given, then the fact of the grant of the license or franchise or the making of the contract will not be conclusive upon the public corporation and it may engage in the business or construct and operate a similar plant.1227 it been impaired? The contract was to extend for twenty years. But if the city can now erect its plant, and place its poles, and string its wires by the side of complainant's, and charge the same, it is not speculative to say, that for the same service complainant will do no business. Every inhabitant of Joplin is a partner with all the others, and every man of sense, for the same service at the same price, will patronize his own concern, and thereby increase the profits in which he will participate in one form or another. And then complainant will have a mere naked contract on paper; with the poles standing in the street and its power house idle. That is not only an impairment, but a wiping out of its contract. My own views are, • this should not be allowed." Citing Walla Walla Water Co. v. City of Walla Walla, 60 Fed. 957; Westerly Waterworks v. Town of Westerly, 75 Fed. 181. 1227 St. Paul Gaslight Co. v. City of St. Paul, 181 U. S. 142. Or under such discretionary power electricity furnished by one company may be substituted for a gas supply by another company without any impair ment of the contract with the gas company. Thompson Houston Elec. Co. v. City of Newton, 42 Fed. 723. "It is entirely possible that the proposed action of the city may cause loss to the complainant. But there is no ground justifying action by the court short of holding that, by the mere action of the city in authorizing the complainant to establish its plant without any grant of exclusive rights, the city thereby deprived itself of the right to erect an electric plant for the benefit of its citizens; and this extreme ground I am not prepared to take." Titusville Elec. Light & Power Co. v. City of Titusville, 196 Pa. 3; Jacksonville Elec. Light Co. v. City of Jacksonville, 36 Fla. 229, 30 L. R. A. 540; Thompson Houston Elec. Co. v. City of Newton, 42 Fed. 723. "By chapter eleven, acts 22nd, General Assembly, Iowa, it was enacted that cities should have power to establish and maintain electric light plants or to authorize the erection of the same, 'but no such works shall be erected or authorized until a majority of the voters of the city or town, at a general or special election, by vote, approve the same,' and by section three of the act it was provided that the city should have power to issue bonds for the purpose of establishing electric plants, subject to the restriction that the total amount of indebtedness for all purposes should not exceed five per cent. of the assessed value of the taxable property within the city. The theory of the complainant is that under this statute the city had the option given it in regard to electric plants, and that it could originally have erected the same by vote of the people, but having elect § 474. Acquirement of property for construction of lighting plant. It is quite generally held that, assuming the existence of authority for the acquirement of a lighting plant, the taking of private property for its construction or that of any of its accessories, including the laying of mains or pipes, is for a public purpose, and the right of eminent domain, if a municipality is especially authorized to exercise it, can be used.1228 The rule is without exception that the streets of a municipality can be used for laying gas mains, pipes or conduits without the payment of additional compensation to abutting property owners.1229 But it is also true that this exemption does not apply to the use of country roads for such a purpose. The laying of such facilities in these creates an additional burden for which the adjoining owner can collect damages. 1230 ed to authorize private parties so to do, it is estopped from afterwards entering the field as a competitor; that while the complainant has not an exclusive right under its agreement with the city and cannot object to the city authorizing other private companies or persons to erect and maintain electric plants in the city, yet complainant has the right to enjoin the city from undertaking the work, because the city can, through the exercise of its taxing power over the property in the city, including that owned by complainant, raise money for the running of the plant, instead of being compelled to provide the same by charging for the use of the light and thus the city can practically drive complainant out of the field and destroy the value of its plant, which was erected in the city by an agreement with the municipal authorities. There is great force in the suggestion thus made. It is doubtless true that, if the city enters the field by the erection of its own plant, it will have an advantage over the complainant; yet it does not follow that the court can interpose and restrain the city from erecting the contemplated plant. As already stated, the city did not grant any exclusive rights to complainant and the latter, when it erected its plant, took the chance as to future competition. The statute confers the right so to do upon the city; and I can see no ground justifying the court in interposing by injunction and preventing the city from establishing its proposed plant." 1228 Lewis, Em. Dom. § 129. "Gas is not, like water, a necessity in the sense of being absolutely indispensable, but it has become a practical necessity in all urban communities. The right to lay pipes in the streets of cities and villages for the distribution of gas has never been questioned, but has often, indirectly, received judicial sanction." 1229 McDevitt v. People's Natural Gas Co., 160 Pa. 367; Elliott, Roads & St. (2d Ed.) p. 415. 1230 Consumers' Gas Trust Co. v. Huntsinger, 14 Ind. App. 156; Huffman v. State, 21 Ind. App. 449; Kincaid v. Indianapolis Natural Gas Co., § 475. Charges for light supply; regulations. A public corporation, if possessing the power to construct and operate a lighting plant, unquestionably has the right to make such charges for a use of this commodity as will not only pay the fixed charges and operating expenses, but also afford a substantial profit.1231 If the corporation engage not only in the business of supplying its own wants in this respect, but also those of private consumers, it clearly is exercising in such case its business and proprietary powers. 1232 The cases hold that, under these circumstances, it is acting purely and simply in its capacity as a private corporation, and as such it is subject to all of these principles and rules of law which control and protect persons in the operation of a similar plant.1233 These rules and principles of law, as will be remembered, affect private persons in a manner and to an extent never applied to the sovereign or to one of its political agencies. The obligations in respect to services afforded, the ability for damages sustained through the commission of a tort, and the liability of the property to be seized under judicial process and sold for a payment of debts, each and all exist as against the public corporation when, under any ordinary circumstances, they would not. $476. Performance of a contract. A public corporation contracting with a private person or corporation for a supply of light for its public use will not, as a rule, be permitted to set up its lack of authority in this respect 124 Ind. 577, 8 L. R. A. 602; Hamilton County Com'rs v. Indianapolis Natural Gas Co., 134 Ind. 209; Windfall Natural Gas, Min. & Oil Co. V. Terwilliger, 152 Ind. 364; Bloomfield & R. Natural Gaslight Co. v. Calkins, 62 N. Y. 386; Sterling's Appeal, 111 Pa. 35. "Laying and maintaining a pipe line at the ordinary depth under the surface necessarily imposes an additional burden on the land not contemplated either by the owner or by the public authori ties when the land was appropriated for the purpose of a public road. It is a burden, moreover, which, to some extent at least, abridges the rights of the landowner in the soil traversed by the road; and hence, it is a taking within the meaning of the constitutional provision." 1231 State v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262; City of Indianapolis v. Indianapolis Gaslight & Coke Co., 66 Ind. 396. 1232 Opinion of Justices, 150 Mass. 1233 Norwich Gaslight Co. v. Norwich City Gas Co., 25 Conn. 19 |