in such a case, would be an element to be considered in determining the compensation to be paid, but it would be important to deprive the government of power to take the property. A contract of any kind can be invested with such power only at the expense of the sovereignty of the government.

A government cannot abdicate its sovereign power and remain sovereign. It cannot part with this power by contract, or by any legislative act. No agent or representative has authority to cede a sovereign power, or the power of a sovereign over an object subjected to its jurisdiction, without the express authority of his sovereign. When this fact is considered in connection with franchise questions it will be seen that perpetual franchises are more advantageous to the public than term franchises for declared period of years. The perpetual franchise can be terminated by the government at its option at any time without considering the disturbing element of a term contract. Any corporation accepting a perpetual franchise will do so with a knowledge of the right of the government to cancel it at will. Having this knowledge, it will become the policy of the company so to operate its industry that the government shall never have cause to cancel the franchise. This means good service for the people.

PROPERTY OWNERS' RIGHTS TO COMPENSATION FOR SPECIAL USE OF PUB

LIC RIGHTS-OF-WAY.

Two decisions have been rendered by the Wisconsin courts that are diametrically opposed to each other on the question of the right of an abutting property owner to demand compensation for a special use of the public right-of-way. The first case was an action brought against a telephone company to restrain it from maintaining its pole where placed, and to recover damages. The second case was brought by a street railway company to prevent an abutting property owner from removing one of its poles.

In the first case the Supreme Court holds that "telephone poles and wires in a street constitute an additional use of the street, for which abutting owners must be compensated; that poles and wires cannot be placed in front of a person's property without compensating him for so placing the poles, even where the poles stand wholly within the street.”

In the second case the Supreme Court holds that "a street railroad for the carriage of passengers, constructed and operated in the street of a city in such a manner as not materially to interfere with the common use of the street by the public or ordinary modes, or with the private rights of abutting landowners in the land covered by the streets, is not an additional burden upon the use thereof." "If reasonable re

gard be had for the convenience of abutting property owners in the enjoyment of their property, the street railway has a right to place its poles along the street."

It is a matter of common knowledge, gained by observation of constructed lines, that a pole line for a telephone service is not as great a burden upon a public right-of-way as a pole line for a street car service. Justification for these two decisions cannot be found in the burden placed upon a public right-ofway considered purely as a physical fact. The discrimination between the two classes of service appears to be founded upon a theory that streets were not originally designed for the carriage of intelligence by means of wire transmission, but that they were originally designed for the carriage of persons by means of vehicles; therefore, the transmission of intelligence by wire is a new use for which the abutting property owner is entitled to compensation, while the carriage of persons in street cars is not a new use, and therefore the abutting property owner is not entitled to compensation by reason of its adoption.

The reasoning in the telephone case is inexact. Streets were originally designed, not only to provide a right-of-way over which persons might freely travel by such means of conveyance as they might elect, but also to provide a right-of-way over which intelligence and commodities might be freely transported by such means of conveyance as owners might elect

or the state might approve. In no way has the right of eminent domain been exercised more freely by the general government or by states than for the public purpose of opening and maintaining, free from obstruction from any cause, post roads for the transportation of intelligence. At first this meant the horse back rider and the stage coach carrying mails. Later it meant steam railroads, then came the telegraph, to be followed by the telephone. The means of transportation has changed, but the character of the thing transported has not been changed. The means of carrying persons has been changed, but the persons carried have not changed. Regarded as a physical fact, street cars relieve the burden upon a street because the conveyance of the same number of persons as are carried in street cars by the means in use before their introduction would be a greater burden upon the street than exists when they are carried by street cars. This is also true in regard to the transmission of intelligence by wire. If every message so sent were sent by an individual messenger, as they are sent by the wire in individual dispatches, by any means of conveyance the messengers could take, the burden upon the street on account of the service would be much greater than it is by wire. Analyzing the subject in this way, we conclude that the reasoning in the telephone case is inexact, both as to the telephone service being a new use of public rights-of-way, or an additional burden upon them.

We are aware that the terms "use" and "burden" may have a meaning in legal fiction that they do not possess as physical facts. We are also aware that courts must render decisions according to law. We very much doubt, however, the soundness of the decision that upholds the constitutionality of a law that discriminates against a public service without foundation for such a discrimination in a fact or in the requirements of the principles of justice.

a

These two cases bring to view a vital defect in the course taken by municipal and state governments in granting the right to establish constructions of any kind upon, over or under public rights-of-way for the purpose of rendering any public service. The right of eminent domain resides in the state by virtue of its sovereign power. It is inseparable from sovereignty. When the state grants the right to place a construction on, over or under a public right-ofway for the purpose of rendering a public service, or whenever such a grant is made by a municipality, township or county to which the state has delegated the right to make such a grant, the government making the grant should assume all responsibility for opening and maintaining free from obstruction of any kind, for the purposes of the service to be rendered, the public right-of-way. The responsibility and the duty of the corporation erecting and operating the construction should be limited to complying with the specifications contained in the grant of the