has no right under its police powers to adopt an ordinance requiring a motorman to "keep a vigilant watch for all vehicles on the track or moving towards it, and on the first appearance of danger to such vehicle, to stop the car in the shortest time and space possible." To make such an ordinance binding it should appear that the railroad company on accepting its franchise from the city and in consideration thereof undertook and agreed to obey the provisions of such ordinance. Such an agreement would create a contractual liability on its part, which did not exist at common law, but which was necessary to bind it. Laws controlling the liability of citizens inter se, must emanate from the legislature, in whom alone such power is vested by the Constitution.18 Again a municipal

Fonda, J. & Y. R. Co., 101 N. Y. lice regulations control the citizen in Supp. 694, 51 Misc. 438, aff'd 104 N. Y. Supp. 411; Weed v. City of Binghamton, 71 N. Y. Supp. 282, 62 App. Div. 525; also §§ 337 (and note 69), 338, herein.

Ry.

respect to his relations to the city, representing the public at large, and for this reason are enforcible by fine and imprisonment, but laws controlling the liability of the citizens 18 Sanders v. Southern Elec. inter esse, must emanate from the Co., 147 Mo. 411, 48 S. W. 855. legislature in whom alone such The court (at pp. 425-427), per power is vested by the constitution Marshall, J., said: "This precise or- [Norton v. City of St. Louis, 97 Mo. dinance regulation underwent ad- 537, 11 S. W. 242; City of St. Louis v. judication by this court in Fath v. Connecticut Mut. Life Ins. Co., 107 Tower Grove & Lafayette Ry. Co., Mo. 92, 17 S. W. 637; Heeney v. 105 Mo. 537, and Sherwood, J., Sprague, 11 R. I. 456; Railroad Co. said: 'Proceeding then to inquire v. Ervin, 89 Pa. 71; Vandyke v. into the validity of the ordinance, City of Cincinnati, 1 Disn. 532; it may be admitted at the outset, Flynn v. Canton Co., 40 Md. 312; that it is beyond the power of a Jenks v. Williams, 115 Mass. 217; municipal corporation by its leg- Kirby v. Association, 14 Gray (Mass.), islative action directly to create a 249.] A provision of the charter of "civil duty, enforcible at common a city, whether the charter be law;" for this is an exercise of power granted by an act of the legislature, of sovereignty belonging to the State.' * * * The legislature may delegate a part of the police power of the State to a municipality, but it cannot delegate the legislative functions of making laws that will be binding upon citizens between themselves in civil proceedings. The po

or be adopted by the people of the city pursuant to the power conferred by art. 9 of the constitution which takes the place and has the force of a legislative act, stands on a totally different plane from an ordinance of a city passed under its police power. The latter creates no new right or

ordinance regulating the speed of cars used upon a street railroad is within the city's police power and applies not only to all territory within the corporate limits but also to subsequently acquired territory and affords a sufficient basis for an action for a personal injury due to its breach.19

remedy between citizens; is enforcible as they granted the legislative only by quasi civil-criminal pro- power generally to the General ceedings, and creates a municipal Assembly, or the judicial power to misdemeanor. The former is as the courts." much a law of the State as if it had been enacted by the legislature. The legislature under its reserve powers in the constitution may repeal or amend it, but until it does so, the provision of the organic law is a valid regulation and is binding upon citizens, both in their relation to the city and among themselves. The reason is that the people-the source of all power-conferred the right, by the constitution, upon the city to so legislate by its organic law, just

But compare Gray v. St. Paul City Ry. Co., 87 Minn. 280, 91 N. W. 1106, 12 Am. Neg. Rep. 604; Meyers v. St. Louis Transit Co. (Mo. App.), 73 S. W. 379; Gebhart v. St. Louis Transit Co. (Mo. App.), 71 S. W. 448; J. F. Conrad Grocer Co. v. St. Louis & M. R. R. Co., 89 Mo. App. 391.

19 Deneen v. Houghton County St. Ry. Co., 150 Mich. 235, 14 Det. Leg. News, 670, 113 N. W. 1126.

CHAPTER XXIII.

REGULATION AND CONTROL CONTINUED-RATES AND CHARGES.

§ 388. Regulation of Gas and Natu- § 399. Regulation of Fares-Street ral Gas Companies-Police

§ 388. Regulation of Gas and Water Companies-Police Power.-In granting the exclusive franchise to supply gas to a municipality and its inhabitants, a state legislature does not part with the police power and duty of protecting the public health, the public morals and the public safety, as one or the other may be affected by the exercise of that franchise by the grantee. And it constitutes a proper exercise by the legislature of the police power to regulate the pressure of natural gas in pipes although such exercise of power should not amount to oppression. So where a court has jurisdiction over such matters it may direct a company to lay its pipes for natural gas below the surface of the ground. Where a state statute pro

'See §§ 16, 82-84, 160, 186, 194, 198, 374, herein, as to franchises, etc., of gas and natural gas companies.

New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. 252.

'Jamieson v. Indiana Nat. Gas. & O. Co., 128 Ind. 555, 12 L. R. A. 652,

28 N. E. 76, 10 Ry. & Corp. L. J. 163, 44 Alb. L. J. 145. Examine as to principle involved Consolidated Gas Co. v. City of New York (C. C.), 157 Fed. 849, considered under § 392, herein, and note as to regulation of pressure of gas.

Kiskiminetas Township v. Cone

vided: "That it shall be unlawful for any person, firm or corporation having possession or control of any natural gas or oil well, whether as a contractor, owner, lessee, agent or manager, to allow or permit the flow of gas or oil from any such well to escape into the open air without being confined within such well or proper pipes, or other safe receptacle, for a longer period than two days next after gas or oil shall have been struck in such well; and thereafter all such gas or oil shall be safely and securely confined in such well, pipes or other safe and proper receptacles," it was held that such enactment did not violate the Federal Constitution; and its enforcement as to persons whose obedience to its commands were coerced by injunction, did not constitute a taking of private property without adequate compensation, and did not amount to a denial of due process of law, contrary to the provisions of the Fourteenth Amendment of the Constitution, but was only a regulation by the State of a subject especially within its lawful authority. A State may also limit the right of eminent domain to such gas and oil corporations as are doing business with and furnishing supplies to customers within that State, and such exercise of power does not constitute an interference with interstate commerce. But a State may not interfere with interstate commerce by enactments which substantially prevent the transportation of natural gas beyond the state limits where such legislation is not a police regulation."

§ 389. Regulation of National Banks.8-Congress having power to create a system of national banks, is the judge as to the extent of the powers which should be conferred upon such banks, and has the sole power to regulate and control the ex

maugh Gas Co., 14 Pa. Super. Ct. 67. Harless, 131 Ind. 446, 29 N. E. 1062, See §§ 171 et seq., herein. 15 L. R. A. 505.

Ohio Oil Co. v. Indiana (No. 1), 177 U. S. 190, 44 L. ed. 429, 20 Sup. Ct. 576; Ind. Act, March 4, 1893.

7 Benedict v. Columbus Construction Co. (N. J. Ch.), 23 Atl. 485, 35 Am. & Eng. Corp. Cas. 637.

8 See §§ 18, 69, 126, herein, as to

• Consumers' Gas Trust Co. v. franchises, etc., of banks.