proceedings of the defendant which rests upon the corporate

porate character of plaintiffs.

character of the plaintiffs, and the privileges seEffect of cor- cured to them by their charters, it is unnecessary for me to enter into any discussion; for the reason that it is too well settled to admit of debate that, under the right of eminent domain, not only the lands of a corporation may be taken for such a public use as a railroad company, but their franchise also. It would be a mere affectation of industry for me to parade the many cases decided in Pennsylvania and the other states of the Union which affirm this proposition, especially in view of the express words of the constitution already quoted, which subject all franchises as well as other property of corporations to the exercise of this right. It must, however, be conceded that the plaintiffs are right in declaring that neither the franchise of a corporation existing for a public use, in the legal and proper sense of the words, or the lands which are necessary for the enjoyment of such public use, can be taken under the delegated power of eminent domain, without a clear and express authority from the legislature to that effect, or an authority necessarily implied from the grant. It must further be conceded that there is not in the act of February 19, 1849, any express grant of authority to take lands held by other corporations for public uses; nor have I been convinced, notwithstanding the ingenious argument made by the defendant's counsel, that the facts in the present cases show any such absolute necessity of taking the plaintiff's land as would give rise to an implied authority,-such a necessity as arises out of the nature of the case, and is not of the defendant's own creation. On the other hand, nothing can be plainer than that it is not necessary for the defendant to show any such absolute necessity for the taking, unless the plaintiff's have made good their claims to be corporations existing for public uses, within the true legal meaning of those words. "Now, the meaning of these words, for public use,' has been frequently determined in the cases in which the question of the validity of the grant of the right of eminent domain has arisen, where it was necessary

Whether use

is public. to decide whether the purpose for which the property was to be taken was for public use.' Clearly the words do not mean that every use is a public use from which the public may incidentally and temporarily derive an advantage or benefit or convenience, during the pleasure of the owner of the property, and from which they may be excluded at the mere caprice of the owner. If this definition were accepted, any man's property might be taken upon the shallowest pretense of a public use. The test whether a use is public or

not is whether a public trust is imposed upon the property, whether the public has a legal right to the use which cannot be gainsaid, or denied, or withdrawn, at the pleasure of the owner. A particular enterprise, palpably for private advantage, will not become a public use because of the theoretical right of the public to use it. The question is whether the public have a right to the use. The general public must have a definite and fixed use of the property-a use independent of the will of the private person or corporation in whom the title is vested; à public use which cannot be defeated by the private owner, but which is guarded and controlled by the law. The true criterion by which to judge of the character of the use is whether the public may enjoy it by right, or only by possession. The test is not what the corporation owning the land may choose to do, but what under the law it must do, and whether a public trust is impressed on the land. A franchise for such a public use cannot be granted away. The question of a public use is not affected by the agency employed. It is no more of a public use for being held by a corporation. To constitute a public use, the property must be under the control of the public, or of public agencies, or the public must have a right to the use.

nies.

"Let us now turn to a brief examination of the nature of the rights possessed by the market companies who are plaintiffs in these cases. The Farmers' Market Company Nature of was incorporated by an act passed March 19, 1859. rights of marBy the first section they were empowered to ac- ket compaquire such real or personal estate as they might deem necessary for the maintenance of a market house in the city of Philadelphia, with full power to sell, mortgage, or convey the same at their pleasure. Section 2 declares the purpose of the corporation to be to erect and maintain a building and stalls to be used as a public market house, the same to be leased, rented, or disposed of on such terms and conditions as the managers should determine. By 3, the capital stock was not to exceed $250,000, in shares of fifty dollars each and the affairs of the company, by § 4, were to be managed by a board of nine managers elected by the stockholders. The Twelfth Street Market Company, by an act passed April 6, 1864, was incorporated with all the powers, privileges, and immunities contained in the act incorporating the Farmers' Market Company. Its capital stock was not to exceed $300,000, in shares of fifty dollars each. The charters of the two companies were therefore in all essential respects identical. They are both private corporations, authorized to build houses and stalls to be used as public market houses, for the sale of meats, vegetables, victuals and provisions, with

the right to rent the stalls for whatever prices they may choose, or sell out and quit the business whenever they please. We may ask, then, as the supreme court pertinently asked in Girard Storage Co. v. Southwark Foundry Co., 105 Pa. St. 251: What rights have the public in and upon these properties other than what it would have did the property belong to a private individual? We understand very clearly,' the court goes on to say, the relation of a turnpike road, a canal, or railroad to the public. The people of the commonwealth have the right of way over them, which may be exercised regardless of the will of the corporation owning them. They are highways, and the companies operating them have the rights of eminent domain conferred upon them only because of this direct interest which the public has in them. the works of this corporation the community at large has no other, no further, interest than it has in the storehouses of private individuals. It may receive the grain of one person, and refuse that of another, or it may, at its own will, suspend operations, and shut out the public altogether. Its organization is all that it has received from the public. Beyond this, the public has no special interest in it, and when the organization disappears there is nothing left of a public character, or anything over which the commonwealth has control.' Every word of this is as applicable to the corporations plainttiff in these cases as it was to the Girard Storage Company. Corporations are divided,' said THOMPSON, C. J., in Foster v. Fowler, 60 Pa. St. 27, into public and private corporations; that is, into those which are agencies of the public, and directly affecting it, and those which only affect it indirectly. The public is directly interested in the results to be produced by the former, and the use of them cannot be disturbed by the seizure of the property essential to their operations by creditors. They must recover their debts by sequestering their earnings, allowing them to progress with their undertaking to accommodate the public. This direct benefit to and accommodation of the public very clearly distinguishes this class of corporations from private corporations, in which the public is but indirectly interested; whether they progress or cease, the public is not directly affected."

Plaintiff a private cor

"To apply this reasoning to the cases now in hand. In a market established, managed, and controlled by the municipal authorities, and conveyed by municipal laws, there may be, no doubt, a public use. Such were the markets formerly maintained by the city in Marning a private ket street and other streets. But what legal interest has the public in the plaintiffs' market houses? Is not their property entirely under their own control? May

poration run

business.

they not rent their stalls to whom they please, and refuse them to whom they please? And may they not, by the express words of their charter, rent or sell the whole building when and to whom they please? The second section of their charter declares that they may. Where is any trace of a public trust. impressed upon their property? Or where are there any rights of the public which can be enforced against them? May they not be sold out by the sheriff at any time upon a creditors' execution, like any private individual? The answers which must be given to these questions show, it appears to me, conclusively, that the plaintiffs are but private corporations owning property impressed with no public trust; that they are engaged in a purely private business, which is wholly under their own control, in which the community has no public rights, and with which the public has no right to interfere. It is impossible that corporations which exist solely for their own purposes and profit,and which are governed only by their own interests and their own will, and over which the public can by no possibility exercise any control, can be regarded as corporations existing for public uses, within the legal meaning of those words.

Plaintiffs'

franchise.

"But it is said the plaintiffs have a franchise. Well, if they have, the franchise, as I have already shown, may be taken by virtue of the right of eminent domain, unless it is a franchise existing for public uses. If it is a franchise of that character, it cannot be taken without an express legislative grant, or in virtue of an implied power arising out of an absolute necessity. But what is their franchise? A franchise, in England, is a branch of the king's prerogative subsisting in the hands of a subject. It is derived from the crown, and must arise from the king's grant, or by prescription, which presupposes a royal grant. In this country it may be defined by a privilege vested in certain persons by grant from the sovereign authority in the state to exercise, possess, or to perform acts which, without such grant, they could not do or perform. A franchise is jus publicum, and necessarily exclusive in its nature. What are the franchises possessed by the plaintiffs? They have the franchise of being a corporation. As such, they have a right in their corporate capacity to have and maintain a market house. There is plainly nothing exclusive in that. Any person, or association of persons, have a right to do the same thing without any grant from the state. Every green grocer and provision dealer in the city is engaged in the same business; that is, he keeps a market house. Unlike the plaintiffs, however, he not only keeps the market house, but he himself sells the provisions which are sold there. The plaintiffs are engaged in main

taining a market house in their collective capacity, under the cover of a charter. Any person may do the same thing without a charter. There is nothing in the nature of a franchise in the business which they carry on, for any one who chooses may carry on the same business. Their franchise consists solely in being a corporation, and carrying on their business in a corporate capacity. When the defendant takes their market house under the delegated power of eminent domain, it does not take their charter or touch their franchise of being a corporation, which is really the sum total of the franchises which they possess. Even if the taking of their prop. erty involved the loss of their charters, as their counsel argues a proposition to which I by no means assent-they could obtain a new one, as any other person may, under the provisions of the act of 1874, for the mere asking. 1 Purd. Dig. 336. What is the commercial value of a franchise which anyone who chooses to ask for may obtain for nothing?

lege as a pre

"On the argument, much was said by the plaintiffs of the importance of public markets, and the case was argued as if the right to maintain a market house or to hold a market Market privi- in Pennsylvania was a prerogative vested exclurogative. sively in the state, and one which no one can exercise without a grant from the commonwealth. At common law, in England, the establishment of public markets was no doubt a part of the king's prerogative and no one could get up a market without a grant from him. Such grants were doubtless at one time fruitful sources of revenue to the royal exchequer. Their establishment was, as Blackstone says, 'a part of the economies or domestic polity, which, considering the kingdom as a large family and the king as master of it, he had the right to dispose of as he pleased.' I Bl. Comm. *274. These English markets, with their stewards, their toll, their courts of piepoudre, in which all disputes orignating in them must be decided before the setting of the sun, their special privileges and peculiar customs, constituted an important feature in the domestic economy of every English neighborhood. They were a part of the royal prerogative, undoubtedly, but they never crossed the seas to this country in that capacity, any more than did the right to all royal fish, such as the whale and the sturgeon, the right to corodies, to wrecks, to treasure trove, or to bona waviata. Our ancestors, when they transplanted on these shores the principles of English freedom, left behind them all royal prerogatives except such as were to be, in the hands of the people, the necessary instruments of the free government which they here established. I am not aware that it has ever been supposed or maintained in Pennsylvania that no man or as