an additional servitude is imposed on rural highways, but not on suburban streets; 79 except when the abutter's easement of access is materially impaired; 80 or when the business of the company is confined to the lighting of private houses and buildings.81 It has also been held that electric light companies hold inferior privileges and rights to street railway and telephone companies, and must therefore exercise them in such way as not to interfere with the superior rights of such companies; 82 and in cases of contest between two electric light companies in the same city superior right has been adjudged in favor of the first occupant where it has equal franchises; 88 and against the first occupant where the newcomer has a contract with the city for lighting the streets.84 Discrimination Unlawful. Because of the public nature of these utilities, it is well settled that an electric light company cannot discriminate between citizens in the matter of light or accommodation,85 but must furnish all applicants with equal privileges at the same rates, and at reasonable prices.86 79 Tiffany v. Illuminating Co., 67 How. Prac. (N. Y.) 73; Halsey v. Railway Co., 47 N. J. Eq. 380, 20 Atl. 859; Palmer v. Electric Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672; Haverford El Light Co. v. Hart (Pa.) 4 Am. El. Cas. 148. 80 Tiffany v. Illuminating Co., supra. 81 Johnson v. Electric Co., 54 Hun, 469, 7 N. Y. Supp. 716; Callen v. Electric Light Co., 66 Ohio St. 166, 64 N. E. 141, 58 L. R. A. 782. 82 Paris Electric Light & Ry. Co. v. Telephone Co. (Tex.) 27 S. W. 902. 83 Consolidated Electric Light Co. v. Gas Co., 94 Ala. 372, 10 South. 440. 84 Terre Haute Electric Light & Power Co. v. Power Co. (Ind.) 6 Am. El. Cas. 193. 85 Cincinnati, H. & D. R. Co. v. Bowling Green, 57 Ohio St. 336. 49 N. E. 121, 41 L. R. A. 422; Jones v. Electric Co., 158 N. Y. 678, 52 N. E. 1124. 86 Cincinnati, H. & D. R. Co. v. Bowling Green, supra; Gould v. Illuminating Co., 29 Misc. Rep. 241, 60 N. Y. Supp. 559. 207. 208. CHAPTER XXIII. WATER AND GAS COMPANIES. Quasi Public Character. Franchise Obtained Where. 209. Subject to Municipal Police Regulations. 210. Regulation of Prices by Municipality-Limitations. 212. Judicial Investigation. 213. Reasonable Regulations Prescribed by Companies. QUASI PUBLIC CHARACTER. 207. Companies chartered and operated to supply water or gas for the use of urban communities perform an important public function, and are quasi public corporations. The supreme function of government is the preservation of public order. The sovereign faculty by which this is effected is the police power. Its chief office is the prevention and suppression of crime, which loves the darkness. The most constant and persistent of police agencies is light. The artificial lighting of the streets of a city is therefore a public use of transcendent value to society. For nearly a century this has been accomplished by the use of gas; and authority to erect gasworks to light the streets and supply the citizens with gas for illumination is usually found in the municipal charters of the United States. This agency has in recent years been in large measure superseded by electricity; but gas companies. still continue to supply gas for light to the citizens of many urban communities, and are recognized as quasi public corporations,1 and property may be taken by condemnation proceed 1 Owensboro Gaslight Co. v. Hildebrand (Ky.) 42 S. W. 351; State v. Hamilton, 47 Ohio St. 52, 23 N. E. 935; Bloomfield & R. Natural ING.CORP.-38 ings under the power of eminent domain for the necessary uses of gas companies.2 Water Companies. Water is the oldest of all the recognized public utilities. It was regarded as a matter of prime necessity in the ancient cities of the Orient, and before the Christian Era the aqueducts of Rome, whereby the citizens of the Eternal City were supplied with an abundance of pure water, aggregated more than 350 miles in length. The larger cities of America control their own water supply through a branch of the municipal government; but a majority of the lesser municipalities of the United States are supplied with water by private companies under contract with the municipalities. These companies are generally regarded of such high public use as to be invested by the state with the sovereign power of eminent domain, whereby they may condemn lands, springs, and water courses for the public use; and claims of abutting owners on streets for additional burdens from their pipes and mains have generally 3 Gas Co. v. Richardson, 63 Barb. (N. Y.) 437; Lewis, Em. Dom. § 173. 2 City of Rushville v. Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321; Harlem Gaslight Co. v. Mayor, 33 N. Y. 327; City of Indianapolis v. Coke Co., 66 Ind. 396; Bloomfield & R. Natural Gas Co. v. Richardson, supra; Kincaid v. Gas Co., 124 Ind. 577, 24 N. E. 1066, 8 L. R. A. 602, 19 Am. St. Rep. 113; Commonwealth v. Gaslight Co., 12 Allen (Mass.) 75; Brunswick Gas Light Co. v. Gas Light Co., 85 Me. 532, 27 Atl. 525, 35 Am. St. Rep. 385; Providence Gas Co. v. Thurber, 2 R. I. 15, 55 Am. Dec. 621. 3 Kennebec Water Dist. v. Waterville, 97 Me. 185, 54 Atl. 6, 60 L. R. A. 856. A public use of water must be for the general public, or some portion of it, and not a use by or for particular individuals or societies. Hildreth v. Water Co., 139 Cal. 22, 72 Pac. 395; Spring Valley Water Works v. Water Works, 64 Cal. 123, 28 Pac. 447; City of Rome v. Cabot, 28 Ga. 50; Hale v. Houghton, 8 Mich. 458; MINERS' DITCH CO. v. ZELLERBACH, 37 Cal. 543, 99 Am. Dec. 300; City of New York v. Bailey, 2 Denio (N. Y.) 433; Tyler v. Hudson, 147 Mass. 609, 18 N. E. 582. been disallowed by the courts. Municipalities also, as we have seen, for the purpose of obtaining water supply, have been given this power beyond municipal boundaries. Water companies, therefore, are recognized in law as quasi public corporations. FRANCHISE OBTAINED WHERE. 208. Gas and water companies, like electric companies, obtain their franchises from the state, but subject to municipal license. Gas and water companies, like all other private corporations, obtain their powers through legislative grant, either by special act or under general statutes. The extent of their franchises therefore depends upon the proper construction of the statute conferring the powers. In some instances they have been clothed not only with the ordinary powers of a private cor 4 Crooke v. Water Works Co., 29 Hun (N. Y.) 245; West v. Bancroft, 32 Vt. 371; City of Boston v. Richardson, 13 Allen (Mass.) 146; Lewis, Em. Dom. §§ 128, 129. 5 Ante, § 117; Hepburn v. Jersey City, 67 N. J. Law, 686, 52 Atl. 1132; West Boylston Mfg. Co. v. Water Board, 183 Mass. 267, 67 N. E. 241. • City of Tampa v. Waterworks Co. (Fla.) 34 South. 631; Charleston Natural Gas Co. v. Lowe, 52 W. Va. 662, 44 S. E. 410; Bloomfield & R. Natural Gas Co. v. Richardson, 63 Barb. (N. Y.) 437. A water company organized by statute is a quasi public corporation entitled to charge reasonable rates for its services, and no more. Kennebec Water Dist. v. Waterville, 97 Me. 185, 54 Atl. 6, 60 L. R. A. 856. The fact that water companies are called private corporations does not exempt them from legislative or municipal control. Boise City Artesian Hot & Cold Water Co. v. Boise City, 123 Fed. 232, 59 C. C. A. 236; City Water Co. v. State (Tex.) 33 S. W. 259; Smith v. Nashville, 88 Tenn. 464, 12 S. W. 924, 7 L. R. A. 469; CRUMLEY v. WATER CO., 99 Tenn. 420, 41 S. W. 1058; San Diego Water Co. v. San Diego, 59 Cal. 517; Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39; Opinion of Justices, 150 Mass. 592, 24 N. E. 1084, 8 L. B. A. 487. poration, and also the power of eminent domain to take private property on just compensation; but water companies have been held to have the power of appropriating even streets and public parks for reservoir purposes under legislative grant.' Legislative Power Absolute. The legislature, in the exercise of its plenary power, may confer these rights absolutely upon such corporations, so that they may build and operate their plants without municipal consent. But because of the superior knowledge possessed by local governments as to the wants of the community and the necessary details of supplying them, this absolute power is rarely exercised; and gas and water companies, like electric companies, are usually required to obtain municipal license to build and operate within municipal boundaries." Enumeration of Powers. The powers usually conferred upon gas and water companies in order that they may efficiently carry out the objects of their incorporation, are to introduce water or gas into any town, city, or village named in their articles of incorporation, and where their corporation is located; and to lay pipes in and through the streets, avenues, lanes, alleys, or squares thereof; and enter on any lands, as far as need be, for these purposes and for the 7 Spring Valley Water Works v. Drinkhouse, 92 Cal. 528, 28 Pac. 681; West v. Bancroft, 32 Vt. 367; Webb v. Mayor, 64 How. Prac. (N. Y.) 10. But see City of Morrison v. Hinkson, 87 Ill. 587, 29 Am. Rep. 77. 8 Lawrence v. Hennessy, 165 Mo. 659, 65 S. W. 717; David v. Committee, 14 Or. 98, 12 Pac. 174; HOPE v. DEADERICK, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; NICHOL v. NASHVILLE, 9 Humph. (Tenn.) 252; Beers v. Arkansas, 20 How. (U. S.) 527, 15 L. Ed. 991; MUNN v. PEOPLE, 69 Ill. 80; Same v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Jamieson v. Oil Co., 128 Ind. 555, 28 N. E. 76, 12 L. R. A. 652; Calder v. Bull, 3 Dall. (U. S.) 386, 1 L. Ed. 648; Benson v. New York, 10 Barb. (N. Y.) 223; Town of Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121. Borough of Madison v. Gaslight Co. (N. J.) 54 Atl. 439; 2 Dill. Mun. Corp. §§ 597, 657, 691, 698. |