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succeed on such a defense as that relied on here, for it
is probable that juries would find for plaintiffs on the
ground that they had not full knowledge of the nature
and extent of the risk. But that cannot be helped.
***These judgments introduce an important quali-
fication of the maxim volenti non fit injuria.
present case the plaintiff may well have misappre-
hended the difficulty and danger which he would en-
counter in descending the steps; for instance, he
might easily be deceived as to the condition of the
snow." We are of opinion that the case should have
been submitted to the jury.
Exceptions sustained.

CRIMINAL LAW-LASCIVIOUS COHABITA-
TION-INTENT.

NORTH CAROLINA SUPREME COURT, DEC. 23, 1891.

STATE V. CUTSHALL.

Under the Code, section 1041, which provides that if any man and woman, not being married to each other, shall lewdly and lasciviously bed and cohabit together" they shall be guilty of a misdemeanor, it is not essential in a prosecution against one to prove that both parties had a guilty intent.

J. A. Forney, for appellant.
Attorney-General, for State.

CLARK, J. The special verdict finds that the defendant, not being legally married to his co-defendant (who was not on trial), lived with her for years as man and wife. The interesting question is not now before us whether he is not also guilty of bigamy when he has gone through the ceremony of marriage with her in another State, having at the time a lawful wife living. The State has chosen to prosecute him for fornication and adultery. The court below adjudged him guilty on the special verdict, and the appeal presents the correctness of that ruling for review.

It is true that fornication and adultery is a joint act. It must be shown that two persons-a male and a female-have habitually indulged in unlawful sexual intercourse, but it is not essential to show that both parties had a guilty intent. It is sufficient if both parties participated in the unlawful sexual intercourse. This is demonstrated frequently in practice by placing one defendant on trial when nothing need be proven as to the other defendant, who is not on trial, beyond the incidental fact that it is shown as against the party on trial that the unlawful and habitual sexual intercourse existed between them. Nor can it make any difference that here it affirmatively appears that the party not on trial had no guilty intent, for if the guilty intent of both parties is essential to the conviction of the party on trial, the burden would be on the State to prove it. But in truth all that is necessary to be shown (when only one is on trial) is that there was illicit and habitual sexual intercourse by the party on trial with the person of the opposite sex charged in the indictment. There is nothing in this which conflicts with the authority of State v. Mainor, 28 N. C. 340 (though even that is somewhat questioned in State v. Rinehart, 106 id. 787), which holds that if one is put on trial and acquitted the other cannot be convicted. The reason given for this (if valid) is that the verdict of acquittal establishes against the State that there was no illicit sexual intercourse between the parties, or in the words of the decision, "that there has been no joint act." But there may, without countervailing that authority, well be as in this case an unlawful sexual intercourse wherein one party has a guilty intent and the other, through ignorance of the facts, does not have

such intent. The intercourse may be illicit as to both,
but perhaps criminal as to one only. It would be
strange indeed if the defendant, who has violated the
law flagrantly and intentionally for years by living
as man and wife with a woman he knew was not his
wife, should not be guilty of the offense of fornication
and adultery because he added to his offense the fraud
of making a good woman falsely believe that she was
his wife. This case also differs from State v. Mainor,
in that here neither were both parties on trial, nor had
one been previously tried and acquitted. In Alonzo
v. State, 15 Tex. App. 378, it is said: "While it is true
that to constitute adultery there must be a joint
physical act, it is certainly not true that there must be
a joint criminal intent. The bodies must concur in
the act, but the minds may not. While the criminal
intent may exist in the mind of one of the parties to
the physical act, there may be no such intent in the
mind of the other party. One may be guilty, the other
innocent, and yet the joint physical act necessary to
constitute adultery was complete. Thus if one of the
parties was at the time of committing the physical act
insane, certainly such party has committed no crime,
but it certainly cannot be contended that the other
party, who was sane, has committed no crime. So if
one of the parties was mistaken as to a matter of fact,
after exercising due care to ascertain the truth in re-
lation to such fact, which fact, had it been true,
would have rendered the alleged criminal act legal and
innocent, the party so acting under such mistake of
fact would be innocent of crime. But suppose the
other party was not mistaken as to such fact, but on
the contrary well knew the true fact which rendered
the connection illicit, would this party be regarded as
guilty of no offense because the mistaken party was
innocent? Suppose a father and his daughter are in-
dicted for incestuous intercourse with each other.
Upon the trial of the daughter it is conclusively
proved that at the time of committing the physical act
she was an idiot, or that she was wholly ignorant of
the relationship between herself and her father, with-
out any fault of hers, of course in either of these cases
she would be acquitted. Would it not be monstrous
to hold that because of her innocence the beastly father
must go unpunished for his unnatural crime? Such
cannot be the law, and such we believe is not the law
as declared by the weight of authority. In Missouri it
has been held, in a case of incest, where one party had
knowledge of the relationship and the other was igno-
rant of it, that the former may be convicted and the
latter acquitted. State v. Ellis, 74 Mo. 385. Bishop's
Statutes of Crimes, section 650, says that when the
woman is too drunk to give consent, the man may be
prosecuted for rape or adultery at the option of the
prosecuting power. In 2 Wharton on Criminal Law,
section 1737a, it is also said that the woman may be in-
nocent because irresponsible (for any cause), though
the man may be guilty. To same effect State v. Sand-
ers, 30 Iowa, 582; State v. Donovan, 61 id. 278; Com. v.
Bakeman, 131 Mass. 577.

is

The fact is not to be lost sight of that in an indictment for fornication and adultery the State is not called on to prove a criminal intent. The case is made out when it is shown that a man and woman, not being married to each other, habitually engage in sexual intercourse. That this is "lewd and lascivious not required to be shown, but is an inference of law from the facts proved, as with "malice" in indictments for homicide, even though there an intent must be charged. As to this offense no intent is required to be charged or proven. Indeed when the habitual sexual intercourse is proved, the law casts the burden of showing marriage on the defendants (State v. McDuffie, 107 N. C. 885; State v. Peeples, 108 id. 769), both as to this offense and in bastardy proceedings. Either party

may avoid such legal conclusion by showing that he or she was insane, idiotic or without fault ignorant of the facts. But such defense of a want of intent cannot inure to the benefit of the other party who had the intent. It is otherwise under State v. Mainor, supra, if the act of unlawful sexual intercourse between the two which it is incumbent upon the State to show is found in the negative as to one of the two parties charged. This distinction must exist: (1) Because in the nature of things the State can show no intent except that of an habitual engaging in unlawful sexual intercourse by the parties charged. (2) If the State

must show the guilty intent beyond the intent to do the act, the parties not being married to each other, those who lived in illegal habitual sexual intercourse, believing it to be lawful, as Mormons, free-lovers and the like, would not be indictable. (3) A party who lived in such habitual adulterous intercourse with an idiot or insane person, or who might induce another person to go through the ceremony of marriage before one who was not authorized to celebrate it by falsely pretending to the other party that the celebrant was a proper officer, would be guilty of no offense. It would always be easy in indictments for this offense to show a pretended ceremony before some one not an officer, and that the woman believed him to be such, and neither party (if this were law) could be convicted. The man could thus have the benefits of matrimony without its responsibility as to offspring or the public. In the present case the male defendant has grossly violated the law, and has sinned against the woman as well as the law, and her simple, unsuspecting "faith" in his honor and truth cannot "be imputed to him for righteousness," though it may be so as to herself if she was innocent of "contributory negligence" and made reasonable inquiry.

As to the other plea it is sufficient to say that the defendant came back to the State voluntarily, not upon extradition papers, and the point intended to be raised in that regard is not presented. Speaking for the majority of the court, the case of State v. Mainor, supra, cannot be sustained on reason, since one may be put on trial for this offense and acquitted for lack of proof, and when the other is tried the proof may be ample, and there can be no estoppel as to the State in favor of a party not on trial (State v. Caldwell, 8 Baxt. 576), as there is none against him when put on trial for this offense after conviction of the other party. State v. Parham, 50 N. C. 416. Or when both are on trial together there may be ample proof as to one by confession, as in State v. Rinehart, supra, which cannot be evidence against the other. State v. Mainor stands

alone.

a late case, under the Virginia statute of fornication
and adultery (which defines the offense verbatim in the
language of our statute), it is held that either party
can be indicted alone in a separate bill. Scott v. Com.,
77 Va. 344. This would not be permissible as to con-
spiracy, or any other offense where the concurrence of
two persons in the intent, and not merely in the act,
must be alleged and proven. An offense on all fours
with this is the crime of incest, which is in every par-
ticular the crime of fornication and adultery, with the
sole addition of the relationship of the parties, and as
to that offense the authorities all agree that one may
be convicted when the other, from lack of mind or ig
norance of the facts, may properly be acquitted. When
the habitual sexual intercourse between persons not
married to each other is in proof, such intercourse is
"lewd and lascivious," nothing else appearing. If by
lack of mind or want of knowledge it is not so as to
either party, it is none the less still "lewd and lascivi-
ous" as to the other.
No error.

MERRIMON, C. J. (dissenting). The statute (Code, § 1041) defines and forbids "fornication and adultery in these words: "If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a misdemeanor." To constitute the sexual intercourse thus prohibited, the act or acts must have the quality of lewdness and lasciviousness, not simply on the part of one but both of the parties. The offense complete is their joint act in all material respects, and cannot be otherwise committed. This court has so repeatedly decided. In State v. Mainor, 6 Ired. 340, it was held that, as one of the parties charged with this offense was found guilty, and the other not guilty, no judgment could be entered against the former, Chief Justice Ruffin saying for the court: "The furthest the courts have gone is to allow one of the parties to be tried by himself and convicted, and then judgment is given against that party, because as to him the guilt of the other party is found as well as his own. But when the one has been previously tried or acquitted, or where both are tried together, and the verdict is for one, the other cannot be found guilty, for he cannot be guilty, since a joint act is indispensable to the crime of either, and the record affirms that there was no such joint act." To the same effect is State v. Parham, 5 Jones (N. C.), 416. In State v. Lyerly, 7 id. 158, it was decided that where two are indicted for fornication and adultery, and one of the parties was taken and put on his trial, and there was a general verdict of guilty, there might be judgment against him, Manly, J., saying for the court that it is true the offense cannot be But as we have said this de-committed except by more than one, but the general verdict of guilty finds the guilt of the woman as well as the guilt of the defendant, as against the latter. The extent to which the cases have gone is, where only one party is convicted and others acquitted, there can be no judgment." These cases have been oftentimes recognized in material respects, and no one of them has ever been overruled. In the recent case of State v. Rinehart, 106 N. C. 787, State v. Mainor and State v. Parham, supra, are expressly cited for the purpose I here cite them, and approved. While there are decisions in other States not in harmony with them, it seems to me that this court ought to be governed by and adhere to its own decisions, made repeatedly and by judges of very great ability, learning and experience. They long ago settled the interpretation of the statute creating and defining the offense under consideration, and the Legislature it must be presumed had knowledge of such decisions, and has not seen fit to change or modify the statute in any material respect. In my judgment it is too late to overrule what has

Dr. Wharton (2 Crim. Law, § 1738) expressly refers to it, and says that it cannot be sustained either by authority or reason.

cision does not necessarily call the principle of State v. Mainor in question. Here there is no verdict estabJishing as to the woman that she did not have illegal babitual sexual intercourse with the man. On the contrary, it expressly found that she did. If she is withdrawn from liability by her lack of knowledge of the facts, he can receive no shelter or benefit from an exculpatory matter in which he does not share. This offense differs from an indictment for conspiracy in that the latter requires the concurrence of two or more minds. No act whatever need be shown. State v. Brady, 107 N. C. 822. Hence if the indictment charges two persons with a conspiracy, and by a verdict the non-concurrence of one mind is shown, there can be no conviction of the other defendant. The offense is mental and lies wholly in the intent. But fornication and adultery is a joint physical act. No intent is charged, and of course none need be proven. If the joint act is shown, the non-participation of the mind of one of the parties will not relieve the other. Hence in

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been so decided, and start upon a new line of interpre- ❘ under a franchise grauted to said company by the countation that will end we know not where. Possible cases of enormity cannot warrant a departure from an interpretation of the statute so well settled. It seems to me that the decision in this case necessarily in effect overrules the cases cited supra. The jury rendered a special verdict. The facts found as to the male defendant, the appellant, who alone was put upon his trial, tend strongly to show that he was guilty of the much graver crime of bigamy. But as to the female defendant, who was not put upon her trial, the facts found by the verdict show that she was not guilty. She was innocent. She thought that the male defendant was her lawful husband, and as soon as she became sensible of his perfidy and crime she ceased to live with him. She did not in a legal sense-that of the statute-"lewdly and lasciviously associate, bed and cohabit together" with him. As she was not guilty of the offense charged in any view of it, how, in view of the statute and the cases cited above, can the appellant be guilty of the particular offense charged? I am unable to see. Incest was not an indictable offense in this State until it was made so by recent statute (Code §§ 1060, 1061; Acts 1879, chap. 16, §§ 1, 2), and it is materially different from that under consideration. State v. Keesler, 78 N. C. 469. It makes the mere act of carnal intercourse between the male and female classes of persons specified indictable, and no doubt one of the parties might be convicted and the other acquitted. But the statute in respect to fornication and adultery does not, as we have seen, make the simple act of sexual intercourse indictable. To create this offense the male and female, not being married to each other, must "lewdly and lasciviously associate, bed and cohabit together." There must exist the common purpose and knowledge of it, to be lewd and lascivious in the association, bedding and cohabiting forbidden, else the offense is not complete. If the facts are as the jury found them to be, it would seem that the appellant should have been indicted for bigamy, and not for the offense charged in the indictment. The argument that a bad man may escape cannot have force here.

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HAUGEN V. ALBINA LIGHT & WATER CO.

A company incorporated for the purpose of supplying a city
and its inhabitants with water, and by ordinance granted
the privilege of laying its pipes through the streets for the
purpose of conducting water, with no conditions imposed
except that its pipes shall be laid in a certain manuer,
and that it should in no case charge more than a certain
amount for water, must furnish water to any person on
a street along which it has a pipe, though that pipe was
laid for certain persons who paid therefor on the agree-
ment that if it was used for supplying water to any one
else it should be paid for by the company.
Mandamus is the proper method of compelling the company
to furnish water.

APPEAL from Circuit Court, Multnomah county;

E. D. Shattuck, J.

This is an action for a writ of mandamus to require the defendant to supply the plaintiff with water by tapping a certain water-main on Tillamook street, and allowing him to connect there with a service-pipe, etc. The facts alleged in substance are these: That the defendant is a corporation, the business of which, among other things, is to furnish the city of Albina and the inhabitants thereof with water. That it is operating

cil of the city of Albina, by virtue of an ordinance as follows: "An ordinance granting the right of way through the streets for laying pipes for the purpose of conveying water through the city. The city of Albina does ordain as follows: Section 1. That the Albina Water Company, its successors and assigns, be and are hereby granted the right and privilege of laying pipes through the streets of the city of Albina, for the pur. pose of conducting water through the city. Sec. 2. That the ditches for laying pipes shall be sunk two feet, and the pipes for conducting the water shall be under the surface or level of the established grade eighteen to twenty inches on all improved streets, and no pipe shall be laid so as to interfere with the construction of sewers; provided that nothing in this ordinance shall be construed so as to grant any exclusive right or privilege of conducting water into the city; provided further, that said water company shall in no case charge more than $1 per month for the first faucet and fifty cents for each additional faucet in the same building, for family use or at a private dwellinghouse," etc. That the purpose and object of granting to said company the right to lay water-mains in the streets of said city was that the citizens of said city might be furnished with a supply of pure and wholesome water. That by virtue of the authority conferred by said ordinance, the defendant laid down a four-inch water-main in and through Tillamook street, in the then city of Albina, from the east line of the original town site of the city of Albina to the west line of Twenty-fourth street in Irvington, and connected the said main with the main on Margaretta avenue in said city, and for nearly a year past has been pumping water and conducting it through said main on Tillamook street to supply the citizens of Irvington residing east of Fourteenth street. That the defendant utterly refuses to allow any one residing on Tillamook street, between the east line of the original town site of Albina and Fourteenth street in Irvington, to tap said main, and refuses to supply them with water therefrom. That the plaintiff resided on Tillamook street between the points above named, and is the owner of lot 2, block 126, of Irvington, That said lot abuts on said Tillamook street, and the plaintiff is constructing thereon a dwelling, and is desirous of securing a supply of water from the water-mains of said street, that being the only source of water supply for said premises. That the plaintiff has repeatedly requested the defendant to supply him with water from said main, but has always been refused. That on the 11th day of July the plaintiff tendered said defendant $2.50, the regular fee charged by the defendant for tapping a water-main with a service-pipe, aud demanded from the defendant to be connected with said water-main in Tillamook street, and to be supplied therefrom with water, and that said defendant refused to accept said tender and refused to connect the plaintiff's premises with said main and refused to supply him with water therefrom. That said refusal is willful, and is done for the avowed purpose of debarring the residents on said Tillamook street, between the original town site of Albina and Fourteenth street, and particularly the plaintiff, from the use of water from said main. That the plaintiff is without any legal remedy in the premises except the writ of mandamus, etc. The defendant denies that, under the authority conferred by said ordinance, it laid down a four-inch or any water-main in or through Tillamook street in said city as alleged, or connected the said alleged main with the main on Margaretta avenue, in said city, or for nearly a year past, or for any time, has been pumping water through said alleged main, but the defendant alleges the fact to be that Ellis G. Hughes and C. H. Prescott are owners of

the tract of land known as "Irvington" and "John Irving's first addition," east of Fourteenth street in Albina, and that in pursuance of an agreement en. tered into between the said Hughes and Prescott, for the purpose of supplying water to the property in Irvington and said John Irving's first addition, the defendant laid down in said Tillamook street a supply-imposed, and nothing is said except that when the compipe for said Hughes and Prescott, for which pipe the said Hughes and Prescott paid, for the sole purpose of supplying said lands with water. That said pipe is owned by said Hughes and Prescott, and is under their absolute control. That the defendant has no right to tap the same, except with the consent of Hughes and Prescott, without paying the said Hughes and Prescott the sum of $3,600, the cost of laying the That the business along the line will not justify the defendant in incurring the expense of purchasing said service-pipe and converting it into a main. That defendant has repeatedly applied to said Hughes and Prescott for leave to tap said service-pipe without having to pay the price charged therefor, but they wholly refuse to give consent for the defendant to do

pany is placed under any obligation whatever to supply any inhabitant of the city with water." Counsel say: "If the ordinance had imposed upon the company the duty of supplying the inhabitants with water as a part of the conditions of the grant, such a conclusion might be supported, but where no such duty is

same.

80.

Denies that the defendant's refusal to tap said main or refusal to supply the plaintiff with water is willful or without lawful cause, or that the same is done with the avowed or any purpose of depriving the residents of Tillamook street, or the plaintiff, from the use of water from the alleged main, but alleges that the reason for not supplying the plaintiff with water from said service-pipe of said Hughes and Prescott is that it cannot do so without becoming liable to pay said Hughes and Prescott for said pipe the sum of $3,600, which sum the defendant is not now prepared or able to pay, and for the further reason that the water which would be used along said street will not justify the expenditure, etc. The plaintiff demurred to the new matter stated in the answer, and when the cause was heard the court sustained the demurrer and gave judgment making the writ peremptory, from which this appeal is taken.

Dolph, Bellinger, Mallory & Simon, for appellant.
J. C. Moreland, for respondent.

LORD, J. From this statement of the case, as presented by the pleadings, the court below held that, when the defendant entered upon and laid down its water-mains in the street, in pursuance of the privilege granted by the ordinance, it became bound to supply every abutter upon the street with water. The contention for the defendant is that the ordinance does not impose the duty upon it to furnish water, but only if it shall furnish water that the charge therefor shall not exceed a certain sum herein specified; that the grant is to lay pipes through the streets for the purpose of conducting water through the city in the mode prescribed, and so as not to interfere with the construction of sewers; but that it contains no provision requiring it to supply the city or its inhabitants with water, hence the ordinance imposes no duty upon the company to furnish water to any one. In whatever form the argument is presented it rests essentially upon this contention. While admitting that it is a corporation organized to supply the city and its inhabitants with water, and that the city by its ordinance granted it the right to lay water-mains through its streets for the purpose of carrying into effect the objects of its incorporation, it insists that the ordinance is the measure of the rights conferred and the obligation imposed, which by its terms only grants "the right and privilege of laying pipes through the streets of the city of Albina for the purpose of conducting water through the city," under the conditions imposed, without " a word in the language of the

grant from which it could be inferred that the com

pany furnishes water it shall charge no more than a certain rate per month, they fail to see the soundness of the reasoning which makes it the duty of the company to furnish water." It is thus seen that it is the absence of any express provision in the ordinance, imposing the duty upon the defendant to supply water, upon which the argument and the case for the defendant is predicated. The effect to be given to the fact that the defendant company was incorporated under the law to furnish water to the city and its inhabitants, and the implied obligation which the defendant assumed by accepting the grant or franchise under the ordinance, is entirely overlooked. The defendant is treated as a private corporation, the business of which is private, and not of a public nature, and to meet a public necessity, and as a consequence that it should not be subjected to duties or obligations that are not binding upon other private corporations. In support of this view the only authority cited and relied upon by the defendant is Gus-light Co. v. Brady, 27 N. J. Law, 245. In that case the court was urged to assert the doctrine that gas companies, like common carriers and inn-keepers, were bound to accommodate the public, but refused on the ground that the lack of precedents upon the subject could only be based upon the strong presumption that there was no principle of law upon which such a view could be supported. The court says: "The company may organize, make and sell gas or not, at their pleasure, and I see no more reason to hold that the duty of doing so is meant to be imperative than to hold that other companies incorporated to carry on manufactories, or to do any other business, are bound to serve the public any further than they find it to be their interest to do so. It was earnestly insisted on the argument that the community have a great interest in the use of gas, and that companies set up to furnish it ought to be treated like inn-keepers and common carriers, and that if no precedent can be found for such a decision this court ought to make one. But that there is no authority for so holding in England or America, where companies have been so long incorporated for supplying water and gas to the inhabitants of numerous towns and cities, affords a strong presumption that there is no principle of law upon which it can be supported." But this case and its reasoning was directly disapproved and overruled in the subsequent case of Olmsted v. Proprietors, 47 N. J. Law, 333, in which the court says: "In that case [Paterson Gas-light Co. v. Brady] Mr. Justice Elmer declared that the company was under no legal obligation to supply gas to all persons having buildings on the line of their pipes, upon tender of reasonable compensation. He rested this view on the absence of any express provision in the charter imposing such duty upon the company. This decision fails however to give due effect to the purpose of the Legislature in creating the company, and to the implied obligation assumed by the company in accepting the grant. If it were a grant for mere private uses, empowering the corporate body to withhold service at pleasure from all persons, the company would be without the right to occupy the public streets for the laying of its pipes, and of course the grant of eminent domain for such private purpose would be void. In this respect, in my judgment, the conclusion in the Paterson Case was erroneous, and in conflict with the views expressed in the Tide-water Case, 18 N. J. Eq. 518, and in National Docks Ry. Co. v. Central R. Co., 32 id. 755."

poses for which it was organized. By its acceptance of the grant, under the terms of its incorporation, it assumed the obligation of supplying the city and its inhabitants with water along the line of its maius, It could not dig up the streets and lay pipes therein for conducting water except to furnish the city and its inhabitants with water. That was the purpose for which it became a corporation, and the grant of the city was to enable it to carry it into effect. And if the sup

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J., said, "is not a public purpose, it is difficult to conceive of any enterprise intrusted to a private corporation that could be classed under that head." Olmsted v. Proprietors, supra.

As the defendant could not carry on the business of supplying water without the franchise, the city must have intended in granting such franchise to charge it with the performance of the duty it undertook for the

This view is certainly more in accord with recent decisions establishing the doctrine that it is mandatory upon corporations of this sort to supply one and all without distinction. The defendant by incorporating under the statute for the purpose of supplying water to the city and its inhabitants, undertook a business which it could not have carried on without the grant of eminent domain over the streets in which to lay its pipes. It was by incorporating for this purpose, and in accepting the grant, it became invested with a fran-plying of a city or town with water," as Van Syckel, chise belonging to the public, and not enjoyed of common right, for the accomplishment of public objects, and the promotion of the public convenience and comfort. Its business was not of a private but of a public nature, and designed under the conditions of the grant as well for the benefit of the public as the company. "Such a business," says Mr. Justice Harlan, “is not like that of an ordinary corporation, engaged in the manufacture of articles that may be quite as indispen-public, by the terms of its incorporation, and the desable to some persons as are gas-lights. The former fendant in accepting the benefits of the grant must articles may be supplied by individual effort, and with have assumed the performance of such duty. In a their supply the government has no such concern that word, the acceptance of a franchise, under such condiit can grant an exclusive right to engage in their man- tions, carries with it the corresponding duty of supplyufacture and sale, but as the distribution of gas in ing the public with the commodity which the corporathickly-populated districts is, for the reason stated in tion was organized to supply to all persons without disother cases, a matter of which the public may assume crimination. "It may be laid down as a general rule," control, services rendered in supplying it for public says Mr. Morawetz, "that whenever the aid of the and private use constitute, in our opinion, such public government is granted to a private company, in the services as, under the Constitution of Kentucky, au- form of a monopoly or a donation of public property thorized the Legislature to grant to the defendant the or funds, or a delegation of the power of eminent doexclusive privileges in question." Louisville Gas Co. main, the grant is subject to an implied condition that v. Citizens' Gas-light Co., 115 U. S. 683. And in an- the company shall assume an obligation to fulfill the other case the same eminent judge said: The manpublic purpose on account of which the grant was ufacture of gas, aud its distribution for public and pri- | made. * * The same rule applies to companies vate use, by means of pipes laid down under legislative invested with special privileges, at the expense of the authority, in the streets and ways of a city, is not au public, for the purpose of supplying cities with water." ordinary business in which every one may engage, but 2 Mor. Priv. Corp., § 1129. The books are replete with is a franchise belonging to the government, to be illustrations of this principle, as applied to water comgranted for the accomplishment of public objects, to panies, gas companies, telephone companies and others whomsoever and upon what terms it pleases. It is a in the performance of public duties. In Lumbard v. business of a public nature, and meets a public neces- Stearns, 4 Cush. 61, it was held that if an aqueduct corsity, for which the State may make provision." New poration, established for the purpose of supplying a Orleans Gas-light Co. v. Louisiana Light, etc., Co., 115 | village with pure water, should undertake, capriciU. S. 650. It must then be conceded that the defendously and oppressively, to enhance the value of certain ant is engaged in a business of a public and not of a estates by furnishing them with a supply of water, and private nature, like that of ordinary corporations en-depreciate that of others by refusing it to them, such gaged in the manufacture of articles for sale, and that conduct would be a plain abuse of their franchise. the right to dig up the streets and place therein pipes Shaw, C. J., said: "We can perceive no ground on or mains for the purpose of conducting water for the which to sustain the argument that this act does not supply of the city and its inhabitants, according to the declare a public use. The supply of a large number of express purpose of its incorporation, and the business inhabitants with pure water is a public purpose. But in which it is engaged, is a franchise, the exercise of it is urged that there is no express provision therein which could only be granted by the State, or the mu- requiring the corporation to supply all families and nicipality acting under legislative authority. In such persons who should apply for water on reasonable case how can the defendant refuse to supply water to terms; that they may act capriciously and oppresone and all, without distinction, whose property abuts sively, and that by furnishing some houses and lots, upon the street in which their pipes are laid, upon the and refusing to supply others, they may thus give a tender of the proper compensation? The defendant value to some lots and deny it to others. This would company was organized to supply water to the city be a plain abuse of their franchise. By accepting the and its inhabitants, and the franchise granted by the act of incorporation, they undertake to do all the pubcity authorities was the means necessary to enable itlic duties required by it." This case is cited with apto effect that purpose. Without the franchise the ob-proval in Lowell v. Boston, 111 Mass. 464, and in Olmject for which the company was incorporated would fail and come to naught. It could not carry on the business of supplying the city and its inhabitants with water without authority from the city to dig its streets and lay pipe therein for conducting or distributing water for public and private use. It was not organized to lay pipes, but to supply water, and the grant was to enable it to do it, and thereby effect the public purpose contemplated. When the defendant incorporated to carry on such a business, we may reasonably assume that it was with the expectation of receiving a franchise from the city, which when conferred it would undertake to carry on according to the pur

sted v. Proprietors, supra, in which Gas-light Co. v. Brady, 27 Ñ. J. Law, 245, is distinctly disapproved and overruled. In Shepard v. Gas-light Co., 6 Wis. 539, the company had the exclusive right of supplying the city of Milwaukee with gas. The plaintiff, a merchant doing business on a street containing one of the defendant's mains, fitted up his establishment with the necessary pipes and fixtures for lighting the same with gas. He applied to the company for a supply, tendering at the same time $5 in advance payment therefor. He was required, as a condition precedent, to sign the printed rules and regulations of the company. He declined to do so. The company refused to waive the

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