under a statute is defined as a privilege emanating from the sovereign power of the State, owing its existence to a grant, or, as at common law, to prescription which presupposes a grant and invested in individuals or a body politic, something not belonging to the citizen as of common right.54 So in another case the word "franchise" in a statute conferring a right of appeal is held not to include a liberty or privilege merely, but that the word is used in a restricted sense of a special privilege conferred by grant from the State or sovereign power, as being something not belonging to the citizen of common right.55 The words "public * * * franchise," in a remedial statute as to usurping, etc., unlawfully holding or exercising any "public office or franchise," is construed as including the exercise of the right to use city streets for laying gas pipes.56 And where a statute 57 provided for the bringing of an action by the attorney general in the name of the State, against the parties offending, "when any person shall usurp, intrude into, or unlawfully hold or exercise any franchise within this State," etc., it was held, that the section contained no word of limitation as in the statute of Anne,5 and was not an adoption therefrom with the English construction thereof, but was taken from the New York statute,59 and that the word "franchise" was used in its general sense so as to include franchises, whether corporate or not.60 Again, a street railway franchise may be such a "franchise" under a statute quoted in Chicago & Western Indi- to be a relator cannot exist in beana Rd. Co. v. Dunbar, 95 Ill. 571, 575. 54 Hazelton Boiler Co. v. Tripod Boiler Co., 137 Ill. 231, 232, 28 N. E. 248, per Scholfield, C. J. (statute in this case created appellate court, and the question of right to appeal arose, also holding that a corporate name was, and a trade-mark was not, a franchise). Same definition in Board of Trade of Chicago v. The People, 91 Ill. 80, 82. 55 Hesing v. Attorney General, 104 Ill. 292, 296 (holding that a franchise * * * 58 half of anyone to cause a prosecution to be carried on in an information). 56 State ex rel. Attorney General v. Seattle Gas & Electric Co., 28 Wash. 488, 68 Pac. 496, rehearing denied, 70 Pac. 114; Ballinger's Annot. Codes, § 5780, subd. 1. 57 Wis. Stat., 1898, § 3466. 58 Stat. 9 Anne, c. 20, § 4. 59 2 Rev. Stat. (N. Y., 1829), c. 9, art. 2, § 28. 6o State v. Portage City Water Co., 107 Wis. 441, 83 N. W. 697. as may be annulled by quo warranto upon sufficient cause.61 And where the word "franchise" is used in a statute providing for taxation 62 such word is held to be a generic term and to include all rights and privileges granted to or exercised by a person, association, copartnership, joint-stock company, or corporation engaged in the express, telegraph, or telephone business in the State.63 So under the Kentucky statute 64 when an assessment is made of the "franchise" of a railroad company it is decided that it necessarily embraces all the intangible property of the company, as the word “franchise" is not used in its strict technical sense." 65 In New York "the statute, which is an amendment of the General Tax Law, declares in substance, that the right, authority or permission to construct, maintain or operate some structure intended for public use, 'in, under, above, on or through streets, highways or public places,' such as railroads, gas pipes, water mains, poles and wires for electric, telephone and telegraph lines, and the like, is a special franchise." 66 61 State ex rel. Vilter Mfg. Co. v. Milwaukee, Burlington & Lake Geneva Rd. Co., 116 Wis. 142, 92 N. W. 546. 02 Sec. 78 of the new Revenue Law, § 10, 477, Cobbey's Ann. Stat., 1903. 63 Western Union Teleg. Co. v. City of Omaha (Neb., 1905), 103 N. W. 84. 64 Ky. Stat., 1903, §§ 4077-4080. 65 Commonwealth v. Chesapeake & Ohio Ry. Co., 28 Ky. L. Rep. 1110, 91 S. W. 672. See also Adams Express Co. v. Kentucky (Weir v. Norman), 166 U. S. 171, 41 L. ed. 960, 17 Sup. Ct. 527, under Ky. Stat., 1894, §§ 4077-4081. 06 People ex rel. Metropolitan Street Ry. Co. v. Tax Commissioners, 174 N. Y. 417, 436, 67 N. E. 69, per Vann, J., reargument denied 175 N. Y. 482 (Mem.), case aff'd 199 U. S. 1, 50 L. ed. 65, 25 Sup. Ct. 705. See People v. Priest, 77 N. Y. Supp. 382, 75 App. Div. 131, under Tax Law § 2, subd. 3, as amended by Laws, 1899, c. 712. See also chapter herein on Taxation. CHAPTER II. ENUMERATION OF FRANCHISES. 10. Enumeration of Franchises 17. Right to Tolls, Fares, Rates or § 10. Enumeration of Franchises Generally.-Franchise is a word of extensive signification, and various kinds of franchises exist. And it is said that whatever is of large public 1 "The kinds of franchises are various and almost infinite." Spring Valley Water Works v. Schottler, 62 Cal. 69, 106, per Thornton, J., quoting 2 Black. Comm. 37; Central Railroad & Banking Co. v. State of Georgia, 54 Ga. 401, 409, per Warren, C. J.; Louisville Warehouse Co. v. Commonwealth, 20 Ky. L. Rep. 1047, 1051, 48 S. W. 420. "Franchises are divers, says Finch, and almost infinite." Commonwealth v. Arrison, 15 Serg. & R. (Pa.) 127, 130, per Tilghman, C. J. Franchises are extremely numerous and of various kinds. 3 Greenleaf's Cruise on Real Prop., *260. See also next following note. "The word franchise' is used with various meanings. In its broad and popular sense it embraces the right of trial by jury, the right to habeas corpus, the right to vote at an election, the right to membership in voluntary associations or corporations, the right to hold an office, and perhaps other rights." Chicago & Western Indiana Rd. Co. v. Dunbar, concern, so that a want of regulation and control will injuriously affect the public in its general interests, may be the subject of a franchise." There are, however, certain classes of franchises which have been enumerated as existing in England but which are unknown here and can have no application under the laws of this country.3 95 Ill. 571, 575, per Dickey, J. A case of what constitutes a franchise under a state constitution and also of appeal. 2 People v. Loew, 44 N. Y. Supp. 43, 26 Civ. Proc. 132, 19 Misc. 248. 3 "Franchises are of various kinds, such as the privilege of exercising the powers of a corporation, of having waifs, wrecks, estrays; the right to collect tolls on a road, bridge, ferry or wharf; the privilege of fishing, or taking game and numerous others which might be referred to. In England a large class of franchises exist which are unknown to our law, but some are of more extensive use than here, especially corporate franchises." California State Teleg. Co. v. Alta Teleg. Co., 22 Cal. 398, 422, per Crocker, J. The word is "frequently used to denote the right of voting for a member to serve in Parliament, which is called the parliamentary franchise or the right of voting for an alderman or town councillor, which is called the municipal franchise." Mozley & Whiteley's Law Dict. "The franchises of Forest, Chase, Park, Free Warren, Manor, Game, Court-leet, Waif, Wreck, Estray, Treasure-trove, Royal Fish, Goods of Felons, and Deodands, which form the body of this title in Mr. Cruise's work, have no existence in the United States, and afford but few and remote illustrations of any principles of our law of real property. Those subjects, therefore, are entirely omitted in this edition. The others are retained, for the sake of the doctrines involved in them, which are useful and interesting to the American lawyer." Note to 3 Greenleaf's Cruise on Real Prop., * 261. None of the franchises enumerated by Blackstone "except corporations having the right to take tolls at bridges, wharfs, etc., have any application, under our laws. If, then, his enumeration is to be taken, the number of cases is small in which a franchise may be involved. If the Constitutional Convention and the General Assembly used the term according with its strict legal import, and we must presume they did, then in this country it can only embrace corporations, ferries, bridges, wharfs and the like, where tolls are authorized to be taken, and we may add the elective franchise as it is granted by the constitution to a portion of the people to elect their officers. If others exist they do not occur to us at this time." People v. Holtz, 92 Ill. 426, 429, per Curiam. "The right to create a corporation, assuredly, is a franchise; so is the right to create an office, or to coin money, or to appropriate private property, or, in England, to take royal fish, to work mines of gold and silver, to take waifs, wrecks, estrays, and treasure-trove, to hold courts baron, or courts leet, to keep warrens, forests, parks and chases, and many § 11. Corporations Generally-Members' Rights-Membership Corporate Name-Municipal Corporations-" Public Franchise."-Under our laws corporations or bodies politic are the most usual franchises; and the privilege or right to privileges of the like description. A franchise is a right belonging to the government, as a sovereign, yet, committed, in trust, to some officer, corporation or individual. On page 279 of the third volume of Cruise's Digest, it is said: 'A franchise is a royal privilege, or branch of the King's prerogative, subsisting in a subject by a grant from the Crown.' It must needs be a sovereign power, or something which no subject or citizen can, of right, use. In England, as is well known, there were certain fish, as whale or sturgeon, to which, when thrown ashore or caught near the coast, the King is entitled. Mines of gold and silver, also, were the King's property and part of his revenue. All the game in the kingdom, belonged originally to him, as did all waifs, wrecks, estrays, treasure-trove, deodands, etc. None but the King, at first, could have a forest, a chase, a warren, or a park. 1 Black. Comm., chap. 8; 3 Cruise's Digest, title 28, chap. 1. In England, therefore, all such rights, when delegated to a subject, are franchises. * It is plain that many things are the subjects of a franchise, in England, which are not such in this country." Knoup v. Piqua Bank, 1 Ohio St. 603, 613, 614, per Corwin, J. See also Arnold v. Mundy, 6 N. J. L. 1, 87, 10 Am. Dec. 266, per Kirkpatrick, C. J. * * "Franchises may be divided into two classes-those which the King has in his own hands as parcel of the flowers of his crown, and those which have no existence until created by the King. * This distinction is 4 well settled and was recognized in the case of Duke of Northumberland v. Houghton, L. R. 5 Ex. 127. Franchises which belong to the King by right of his prerogative cannot pass under the general word 'franchise' in a grant from the Crown because they do not exist as such until, created by grant, they are part of the prerogative; if created and resumed they merge in the prerogative. But franchises which are no part of the flowers of the Crown have no existence until the Crown expressly creates them, and these if resumed do not merge." Attorney General v. Trustee of British Museum, Law Rep. (1903) 2 Ch. Div. 598, 612, 613, per Farwell, J. (holding that treasure-trove cannot be claimed under a general grant of franchises, but must itself be expressly granted and when so granted it becomes a franchise in the grantee). 'Spring Valley Water Works v. Schotler, 62 Cal. 69, 106, per Thornton, J., quoting 3 Kent's Comm. 459; State ex rel. Waring v. Georgia Medical Society, 38 Ga. 608, 626, 95 Am. Dec. 408, quoting Bouvier's L. Dict. 593; People ex rel. Koerner v. Ridgley, 21 Ill. 65, 69 (an information in nature of quo warranto in a criminal proceeding); Kennebec & Portland Rd. Co. v. Portland & Kennebec Rd. Co., 59 Me. 9, 66, dissenting opinion of Tapley, J. (a mortgage and foreclosure of a railroad franchise, etc.), quoting 3 Kent's Comm. 459, "The word 'franchise' is often used in the sense of privileges generally, but in its more appropriate and legal sense the term is confined to such |