ests, it is the province of equity to protect corporations no less than individuals. Where the right is with the corporation it will be sustained against any usurpation of its franchise, and against any effort to put an end to its corporate existence. Public prejudice is not a rule to a court of chancery. In the case of The Jersey City Gas Co. v. Dwight, the court said: "The foundation of the present suit is the invasion of a private right created by statute, and that, I have always understood, it is the undoubted province of a court of equity to protect, whether the injury be committed by an individual or a corporation."2

§ 122. Monopoly in Street Railways.-It is well established that municipal authorities have no power virtute officio to grant any exclusive privilege to a street railway corporation. Such power may be conferred by the legislature, but it must be in direct and express terms. Nothing

1 Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242; Atty.-Gen. v. Stevens, 1 N. J. Eq. 369; Pennsylvania R. R. Co. v. National Ry. Co., 23 N. J. Eq. 441; Atty.-Gen. v. Utica Ins. Co., 2 Johns. Ch. 371; Atty.-Gen. v. Bank of Niagara, Hopkins, 354; City of Newport v. Newport Light Co.. 84 Ky. 166, 183; Atty.-Gen. v. Tudor Ice Co., 104 Mass. 239; Delaware & R. Canal Co. v. Raritan & Delaware Bay Co., 16 N. J. Eq. 321, 378. "The only question is as to the remedy, and this appears to me to be equally certain. It is settled that an injunction is the proper remedy to secure to a party the enjoyment of a statute privilege, of which he is in the actual possession, and when his legal title is not put in doubt. The English books are full of cases arising under this head of equity jurisdiction. (Bush v. Western. Prec. in Chan. 530; Whitchurch v. Hide, 2 Atk. 391.) But I need not enter into this discussion, for the point

has been recently settled in this State in the case of Livingston and Fulton v. Van Ingen and others (9 Johns. Rep. 507), and I shall rest upon the authority of that case, and upon the application of the principles on which it was decided. The equity jurisdiction in such a case is extremely benign and salutary. Without it the party would be exposed to constant and ruinous litigation, as well as to have his right excessively impaired by frauds and evasion. Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 611, 615. Legislative acts granting franchises are to be construed strictly according to their terms, and the grantees in such acts take nothing by implication, either as against the power making the grant, or against other corporations or individuals. Auburn & Cato Plank Road v. Douglass, 9 N. Y. 444.

2 Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242.

in favor of such a grant will be presumed, but the charter will be strictly construed. In this direction the courts will recognize such powers only as are clearly and unequivocally expressed in the legislative act. The rule is that a grant of a monopoly by the government of a city is illegal and void, but there are exceptions. The rule applies to all branches of business in which citizens have a common right, but whether it will apply to an enterprise which is essentially a monopoly or of the nature of a monopoly will depend upon the circumstances of the case. It has been denied that a legislature has power to confer upon a municipal corporation the authority to grant to a street railway company an exclusive privilege which is a practical monopoly, but it is now well settled that, in the absence of any prohibition of such a grant by the constitution of the State, a legislature may not only confer upon a city government the power to make such a grant, but it may directly grant to a corporation or to an individual a franchise to construct and operate a street railway within any city, town or village in the State. In a recent case it was held by the Court of Appeals of New York, that the legislature may authorize the construction of a railway upon the streets of New York without farther compensation to the adjoining landowners. In the case of

1 In re New York El. R. Co., 70 N. Y. 327. See also New Orleans City & L. R. R. Co. v. City of New Orleans, 44 La. 728; s. c., 11 So. Rep. 78; In re Citizens' Pass. Ry. Co.. 2 Pittsb. 10; Henderson v. Ogden City Ry. Co., 7 Utah, 199; S. C.. 26 Pac. Rep. 286; Canal & Claiborne St. R. R. Co. v. Crescent City R. R. Co., 41 La. Ann. 561; Christopher & Tenth St. R. R. Co. v. Central Crosstown R. R. Co., 67 Barb. 315; Louisville & Portland R. R. Co. v. Louisville City R. R. Co., 2 Duv. 175; North Balto. Pass. Ry. Co. v. North Ave. R. R. Co., 75 Md. 233; s. C.. 23 Atl. Rep. 466; Davis v. Mayor, etc. of N. Y., 14 N. Y. 506; s. c., 67 Am.

Dec. 186; Milhau v. Sharp, 27 N. Y. 611; s. c., 84 Am. Dec. 314; Coleman v. Second Ave. R. Co., 38 N. Y. 201; People v. O'Brien, 111 N. Y. 1; s. c., 36 Am. & Eng. R. Cas. 78; Eichels v. Evansville St. R. Co., 78 Ind. 263; s. c., 5 Am. & Eng. R. Cas. 274; 41 Am. Rep. 562; Birmingham, etc. R. Co. v. Birmingham R. Co., 78 Ala. 465; Strange v. Hill, etc. R. Co., 54 Iowa, 669; Stanley v. Davenport, 54 Iowa, 463; s. c.. 37 Am. Rep. 216; Denver, etc. R. Co. v. Denver City R. Co., 2 Colo. 673; State v. Bell, 34 Ohio St. 194; Reg. v. Train, 2 B. & S. 640; s. c., 110 E. C. L. 640; Reg. v. Charlesworth, 16 Q. B. 1012; Reg. v. Longton

New Jersey v. Yard, before the Supreme Court of the United States, Mr. Justice Miller, in speaking of the difference in the power of the legislature where there is no constitutional inhibition and where there is such constitu

tional inhibition, said: "The case differs from those in which, by the constitution of some of the States, this right to alter, amend and repeal all laws creating corporate privileges, becomes an inalienable legislative power. The power thus conferred cannot be limited or bargained away by any act of the legislature, because the power itself is beyond the legislative control." In some of the States the powers of municipal corporations are fixed by statutes of a general character. In a leading case in Iowa, it was held that before the enactment of the statute giving to cities the power to authorize or forbid the location and laying down of tracks for railways and street railways, the city of Des Moines, by ordinance, granted to plaintiff's assignor the exclusive right to build and operate street railways on its streets for a term of thirty years. Whether without legislative grant, the city had or

which a street railway has on its track is subject to the right of eminent domain. Canal, etc. St. R. Co. v. Crescent City R. Co., 41 La. Ann. 561. Where a regularly incorporated street railway company becomes entitled to the exclusive right to lay its track in certain streets upon the relinquishment or forfeiture of such right by another company, it is thereafter entitled to the same protection against injurious interference to the extent of this right, as the other company would have been. A municipal ordinance gave a street railway company the exclusive right to lay its track in such streets as should be designated by the council, if accepted by the company within a certain time. Held. that the company, after forfeiting such right as to specified streets, could not maintain a bill to enjoin another company, upon which the right had been subsequently conferred, from laying its track in streets not so designated to complainant, unless it could show

actual injury thereby to its own interests. Where a street railway company has refused to build an additional road lawfully required by the common council, it is discretionary with the council to make such changes in the proposed route as to adapt it to form a junction with the road of some company that will build it, even though, in so doing, a street in which the former company had exclusive rights is used as a connecting link. If such a use infringes the rights of the former company, it is damnum absque injuria. A common council cannot properly so multiply street railway tracks in a particular street as to interfere with the rights of the general public in the street. Street Ry. Co. v. West Side Street Ry. Co., 48 Mich. 433. See also Hiss v. Baltimore & Hampden Pass. Ry., 52 Md. 242; s. C., 36 Am. Rep. 371; Atty.-Gen. v. Metropolitan R. Co., 125 Mass. 515; s. C., 28 Am. Rep. 264.

New Jersey v. Yard, 95 U. S. 104, 111.

In a

had not the power to grant such exclusive rights, it was held that under said section it had the right to ratify the grant and to make the privilege practically exclusive by withholding it from others; also that it had power to bind itself by contract to withhold it for a reasonable time from others, if it deemed it necessary to make such contract in order to secure a service to the public which it might not otherwise be able to do. In this case it was farther held that section 12, art. 8, of the constitution, which declares: "No exclusive privileges, except as in this article provided, shall ever be granted," did not apply to the grant by a city to a person or company, of the exclusive right to build and operate street railways on the city streets.2 case in New Jersey, the charter of a street railroad company authorized it to lay rails in the streets of a city, upon first obtaining the consent of the common council. By a supplement, it was positively authorized to construct several. tracks specified in the supplement, without any condition or reference to the consent of the common council. It was held that as to such tracks the consent of council was not necessary. The grant of powers of local government to a municipal corporation is not a contract, but an exercise of legislative power, and the legislature may, at any time, take away, resume or limit such power. The rule of construction of statutes is that a provision in a statute inconsistent with a provision in a former statute repeals the first statute pro tunto.3

1 Des Moines St. R. R. Co. v. Des Moines Broad Guage St. Ry. Co., 73 Iowa, 513.

2 Des Moines St. R. R. Co. v. Des Moines Broad Guage St. Ry. Co., 73 Iowa, 513.

3 Mayor v. Jersey City & Bergen R. Co., 20 N. J. Eq. 360. "Grants of franchises by public corporations to individuals or private corporations are to be strictly construed, and no exclusive privilege passes unless it be plainly conferred by express words or necessary im

plication. Citizens' St. Ry. Co. v. Jones, 34 Fed. Rep. 579. A grant made by the commonwealth, or by a municipal corporation, under authority from the commonwealth, is to be taken most strongly against the grantee, and nothing is to be taken by implication against the public, except what necessarily flows from the nature of the terms of the grant. Mayor, etc. v. Ohio, etc. R. R. Co., 26 Pa. St. 355; Birmingham, etc. Ry. Co. v. Birmingham, etc. Ry. Co., 79 Ala. 465.”