nance requiring additional paving impairs the obligation of the contract and is not such an exercise of the police power as will be upheld.68 So a city ordinance which contains by agreement as to its stipulations a contract by the city with a street railway company to pave certain portions of the street cannot be thereafter so altered by the legislature as to impose additional obligations upon the company in the matter of paving, even though the Code of the State reserves to it the power to control the company's rights, privileges and immunities and to withdraw the franchise.69 If, however, a power be

"State ex rel. City of Kansas City v. Corrigan Consol. St. Ry. Co., 85 Mo. 263, 55 Am. Rep. 361.

Coast-Line R. Co. v. Savannah, 30 Fed. 646.

Examine the following cases as to street paving and repairing by street railroad companies:

Alabama: Montgomery St. Ry. Co. v. Smith (Ala.), 39 So. 757; Mobile v. Mobile Light & Ry. Co., 141 Ala. 442, 38 So. 127.

Connecticut: Hartford v. Hartford St. Ry. Co., 75 Conn. 471, 53 Atl. 1010; Fair Haven & W. R. Co. v. City of New Haven, 75 Conn. 442, 53 Atl. 960, aff'd in 203 U. S. 379, 27 Sup. Ct. 74, 51 L. ed. 239.

Illinois: Chicago v. Chicago Union Traction Co., 199 Ill. 259, 65 N. E. 243, 59 L. R. A. 666; Danville St. Ry. & Light Co. v. Mater, 116 Ill. App. 519.

Iowa: Marshalltown Light, P. & Ry. Co. v. Marshalltown, 127 Iowa, 637, 103 N. W. 1005.

Louisiana: Shreveport v. Shreveport Belt Ry. Co., 107 La. 785, 32 So. 189; State, New Orleans, v. New Orleans Tract. Co., 48 La. Ann. 567, 19 So. 565.

186 Mass. 115, 71 N. E. 118; Worcester v. Worcester Consol. St. Ry. Co., 182 Mass. 49, 64 N. E. 581; Springfield v. Springfield St. Ry. Co., 182 Mass. 41, 64 N. E. 577; Boston v. Union Freight R. Co., 181 Mass. 205, 63 N. E. 412.

Michigan: Detroit v. Detroit Ry., 134 Mich. 11, 11 Det. Leg. N. 86, 99 N. W. 411; Detroit v. Detroit United Ry., 133 Mich. 608, 10 Det. Leg. N. 320, 95 N. W. 736; Lansing v. Lansing City Elec. R. Co., 109 Mich. 123, 66 N. W. 949, 3 Det. L. News, 41.

Nebraska: Lincoln, City of, v. Lincoln St. Ry. Co., 67 Neb. 469, 93 N. W. 766, 84 N. W. 802.

New Jersey: Cook v. North Bergen Township (N. J.), 59 Atl. 1035; Fielders v. North Jersey St. Ry. Co., 68 N. J. L. 434, 54 Atl. 822, 53 Atl. 404, rev'g 67 N. J. L. 76, 50 Atl. 533; Fielders v. North Jersey St. Ry. Co., 68 N. J. L. 343, 53 Atl. 404, 13 Am. Neg. Rep. 156.

New York: People v. Geneva, W. S. F. & C. L. Traction Co., 98 N. Y. Supp. 719, 112 App. Div. 581; New York City v. Harlem Bridge, M. & F. Ry. Co., 91 N. Y. Supp. 557, 100 App. Div. 257; Mechanicville v. Massachusetts: Dunbar v. Old Stillwater & M. St. Ry. Co., 71 N. Y. Colony St. Ry. Co., 188 Mass. 180, Supp. 1102, 35 Misc. 513; Bing74 N. E. 352; Hyde v. City of Boston, hamton v. Binghamton & P. D.

71

reserved to the city so to do it may impose additional requirements as to street paving upon street railroad companies as where there is reserved the power of legislative control and the right to alter when deemed necessary.70 So a right may exist to declare void a street railway's franchises or privileges in streets of a municipality in case of failure to accept in writing the conditions on which it is permitted to use said streets, a right to revoke such franchise having been reserved, one of such conditions being the payment of street paving improvements. On December 12, 1883, the city of Sioux City, in Iowa, by ordinance, conferred on a street railway company, incorporated December 6, 1883, under the general laws of Iowa, the right of operating a street railway, with the requirement that it should pave the street between the rails. Subsequently, under an act of 1884, the city, by ordinance, required the company also to pave the street for one foot outside of the rails, and assessed a special tax against it for the cost of the paving outside of the rails. It was held, that there was no contract between the company and the State or the city, the obligation of which was impaired by the laying of the tax. But it appeared that under section 1090 of the Code of Iowa, which was in force when the company was incorporated, its franchise was subject to such conditions as the legislature should thereafter impose as necessary for the public good."

Ry. Co., 16 N. Y. Supp. 225, 61 Hun, 479.

Ohio: Cleveland v. Cleveland Electric R. Co., 3 Ohio Dec. 92, 1 Ohio N. P. 413.

Pennsylvania: West Chester Borough v. West Chester St. Ry. Co., 203 Pa. 201, 52 Atl. 252; Philadelphia v. Hestonville, M. & F. Pass. Ry. Co., 203 Pa. 38, 52 Atl. 184; Reading, City of, v. United Traction Co., 202 Pa. 571, 52 Atl. 106; Reeves v. Philadelphia Traction Co., 152 Pa. 153, 4 Am. Elec. Cas. 27, 25 Atl. 516; Philadelphia v. Ridge Ave. Pass. Ry. Co., 143 Pa. St. 444, 22 Atl. 695.

Texas: Kettle v. City of Dallas, 35 Tex. Civ. App. 632, 80 S. W. 874; Laredo Elect. & Ry. Co. v. Hamilton, 23 Tex. Civ. App. 480, 56 S. W. 998.

Wisconsin: Milwaukee Elec. Ry. & L. Co. v. Milwaukee, 95 Wis. 39, 69 N. W. 794, 36 L. R. A. 45.

70 Sioux City St. Ry. Co. v. Sioux City, 78 Iowa, 367, 43 N. W. 224, 39 N. W. 498.

71 Union St. Rd. Co. v. Snow, 113 Mich. 694, 4 Det. L. N. 455, 71 N. W. 1073.

72 Sioux City R. Co. v. Sioux City, 138 U. S. 98, 34 L. ed. 898, 11 Sup. Ct. 226, 9 Ry. & Corp. L. J. 251, 46 Am.

Again, the act of the legislature of Louisiana 73 authorizing the enforcement by mandamus without a jury of contracts by corporations with municipal corporations in that State with reference to the paving, grading, repairing, etc., of streets, highways, bridges, etc., simply gives an additional remedy to the party entitled to the performance, without impairing any substantial right of the other party, and does not impair the obligation of the contract sought to be enforced, and is not in conflict with the Constitution of the United States.74 The statute of Massachusetts of 1898 75 providing for taxation of street railway companies is held not void, as violating the impairment of obligation clause of the Federal Constitution, because it relieved a railroad company from the obligation to pave and repair streets under the terms and conditions of certain municipal ordinances which the company had duly accepted.76

§ 338. Same Subject-Exemption from Assessment for Street Paving Consolidation."-Although the obligations of a legislative contract granting immunity from the exercise of governmental authority are protected by the Federal Constitution from immunity by the State, the contract itself is not property which can be transferred by the owner to another, but is personal to him with whom it is made and incapable of assignment, unless by the same or a subsequent law the State authorizes or directs such transfer; and this applies to a contract of exemption with a street railway company from assessments for paving between its tracks. A legislative authority to transfer the estate, property, rights, privileges and franchises of a corporation to another corporation does not authorize the transfer of a legislative contract of immunity from assessment. And where a corporation incorporates under a

& Eng. R. Cas. 169, aff'g 78 Iowa, 367, 43 N. W. 224.

"Act July 12, 1888, No. 133. "New Orleans, C. & L. R. Co. v. New Orleans, 157 U. S. 219, 39 L. ed. 679, 15 Sup. Ct. 581.

75 Laws 1898, chap. 578.

70 City of Worcester v. Worcester Con. St. Ry. Co., 196 U. S. 539, 49 L. ed. 591, 25 Sup. Ct. 327. herein.

77 See § 20,

general act which creates certain obligations and regulations, it cannot receive by transfer from another corporation an exemption which is inconsistent with its own charter or with the constitution or laws of the State then applicable, even though under legislative authority the exemption is transferred by words which clearly include it. Again, although two corporations may be so united by one of them holding the stock and franchises of the other, that the latter may continue to exist and also to hold an exemption under legislative contract, that is not the case where its stock is exchanged for that of the former and by operation of law it is left without stock, officers, property or franchises, but under such circumstances it is dissolved by operation of the law which brings this condition into existence.78 In the state court in this case the following decision was rendered: the immunity from contribution to the expense of new pavements in the city of Rochester, conferred by chapter 34 of the Laws of 1869 upon the Rochester City and Brighton Railroad Company, a street surface railroad incorporated in 1868 under the Railroad Law of 1850, which, by purchase at foreclosure sale, had acquired the franchises of a prior company organized under the same act, and which had constructed the road, was not a contract right of which the company could not be deprived by subsequent legislation. The fact that the conditions attached to the original consent were modified by the city, they being deemed too onerous for the company, by an ordinance passed prior to the act, which exempted it from the expense of new pavements for five years, and also provided that the fare for children between twelve and five years should be reduced, and that both parties united in submitting it to the legislature which enacted the law in question, except as to the five year limitation, and that after its passage the company extended its lines into other streets, as permitted by the statute, does not render it an irrevocable agreement by the State to exempt the company from such expense as to those streets. The statute did not recite that

78 Rochester Railway Co. v. Roch- Sup. Ct. 469, aff'g 182 N. Y. 99, ester, 205 U. S. 236, 51 L. ed., 27 116.

application was made to the legislature by either party for the adoption of any contract between the city and the company. It did not ratify or assume to ratify any contract. It did not grant a franchise, since that had already been acquired. It did not amend or assume to amend the charter of the company, and if it had, the charter would have been subject to repeal. No acceptance by the railroad company was requisite, and, therefore, the fact that it continued to operate its road and to construct lines in other streets, in alleged reliance upon. perpetual exemption as to such streets, cannot be regarded as furnishing a consideration therefor. The statute did give an exemption, but being without a consideration, a mere gratuity or privilege was conferred which was revocable at the pleasure of the legislature. When, therefore, by section 9 of chapter 250 of the Laws of 1884, the provisions of which were re-enacted in the General Railroad Law,79 the cost of repavement as specified was imposed upon all street surface railroads operating in cities, a contention by the lessee of such railroad company that it did not apply to streets in which the lessor had constructed and operated its lines before its enactment, and that as to these a contract of exemption existed, the obligation of which could not be impaired by subsequent legislation, is untenable. Assuming, however, that the statute constituted a contract, exemptions from taxation or from the exercise of the police power are to be construed strictissimi juris; they are against common right and must be held to be personal and limited to the grantee unless a contrary intention clearly appears. The right to exemption, therefore, did not pass to the lessee, the language being personal and not attached to the property, the statute enacting that "said company," not "said company, its successors and assigns," shall not be required to bear any part of the expense of repaving the streets.80

§ 339. Impairment of Obligation of Contracts-Illus

"L. 1890, chap. 565, § 98.

Ry. Co. v. Rochester, 205 U. S. 236,

City of Rochester v. Rochester 27 Sup. Ct. 469. Ry. Co., 182 N. Y. 99, aff'd Rochester