Page:Harvard Law Review Volume 4.djvu/263

247 City charters usually confer upon the municipal government general power to control and improve the streets, and under this power it has been held that cities may authorize them to be used for many purposes of public convenience other than travel or transportation. They may do all acts appropriate and incidental to the beneficial use of the streets by the public not inconsistent with the free use of them for travel. They may cut down trees, may change the grade, and may lay down sewers and drains. They may construct a public cistern, although this is not undisputed. They may provide for lighting the city, and for this purpose may put up lamp-posts ; and it has been held that for this purpose they may contract with others to supply the city with gas, and use the streets to do so. The laying of water-pipes rests upon the same principle; but in England the right to lay down gas-pipes in the highways can only be conferred by legislative authority ; and the same is true in America of country highways. The authority must be purely incidental to and in furtherance of the right to control the streets.

But in none of these cases can a municipality grant an exclusive franchise or permanent privilege, and it is because many of these grants are to a certain extent exclusive that special legislative authority is required to give full effect to them.

The right to operate an ordinary steam railroad in the streets cannot be granted by the city ; and it is generally held that a telegraph or telephone line imposes a new burden, and cannot be authorized by the municipality alone. With respect to horse