and rent stalls is also a franchise.16 But a franchise is not involved in an action to set aside or redeem from conveyance of a patent right so as to authorize an appeal to the Supreme Court, where the existence or validity of the patent itself is not questioned.17 Nor is a trade-mark a franchise.18 Although the term "news contracts" may pass under the name of "franchises" in the newspaper trade, where the term is used, they are not "franchises" in a legal sense, but are confined to the trade meaning of the term and do not pass under a sale of franchises under a statute providing a method for such sale.19 18 Maestri v. Board of Assessors, "Admitting for the sake of argu110 La. 517, 34 So. 658. Holding ment, that a patent is a franchise, that the exclusive privilege vested still it does not necessarily follow in a person, pursuant to a city or that this case is properly before this dinance and contract predicated court." thereon made by him with the city of New Orleans to furnish the ground, build thereon a structure suitable for a public market and then operate it as such for 25 years by renting stalls to those engaged in the market business, and collecting and appropriating to himself the revenues derived from the renting of the stalls-the ground and market house to be conveyed by formal title to the city at the beginning, and to accrue to the city in full ownership at the expiration of the period fixed for the duration of the privilege-is a franchise taxable under the revenue laws of the State. "Maginn v. Bassford, 196 Ill. 266, 63 N. E. 668. The court said: 18 "A trade-mark is not a franchise. It is not a privilege emanating from the sovereign power of the State, owing its existence to a grant, or a prescription presupposing a grant, but it is on the contrary, the name, symbol, figure, letter, from a device adopted and used by a manufacturer or merchant in order to designate the goods he manufactures or sells,.and distinguish them from those manufactured or sold by another. * There being no franchise involved the appeal must be dismissed." Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 137 Ill. 231, 28 N. E. 248, per Scholfield, J. * 19 Lawrence V. Times Printing Co., 22 Wash. 482, 61 Pac. 166. CHAPTER III. NATURE OF FRANCHISE. 22 Franchise as Monopoly or 23. Same Subject Continued. 28. Franchise of Members, § 22. Franchise as Monopoly or Exclusive in Nature.1Monopoly is not an essential feature of a franchise; and it is declared in a New York case that a corporation with banking powers would be no less a franchise if there were no law restraining private banking, which alone gives to banking corporations the character of monopolies. So a monopoly cannot be implied from the mere grant of a charter to a company to construct a work of public improvement, and to take the profits; there must be an express provision in the charter to give such a monopoly; the legislature must restrain itself therein from granting charters for rival and competing works. Therefore, where a company was granted a charter to construct a navigable canal along the valley of a stream, and to take the profits in consideration of the work, and there was no provision against the exercise of power to charter other and rival companies, it was determined that the legislature was not restrained from chartering a company to construct a railroad along the same valley, even though it might afford the same public accommodation as the canal and in effect 'See § 4, herein. 619, 84 Am. Dec. 314, per Selden, 2 Milhau v. Sharp, 27 N. Y. 611, J., quoting Bouvier. might impair or annihilate its profits. In an Ohio case the court, per Bartley, C. J., basing its conclusions upon the language of Mr. Burke, in a speech upon a bill to repeal the charter of the East India Company, said; "The true nature of the franchise of a private corporation, is here portrayed in clear and comprehensive language. We are here told that it is an institution to establish monopoly and to create power; that to speak of such charters and their effects in terms of the greatest possible moderation, they do at least suspend the natural rights of mankind at large; and in their very frame and constitution, are liable to fall into a direct violation of them; that all special privileges of this kind, claimed or exercised in exclusion of the greater part of the community, being wholly artificial, and for so much a derogation from the natural equality of mankind at large, ought to be some way or other exercised ultimately for their benefit; and that they are not original self-derived rights, or grants for the mere and sole private benefit of the holders, but rights and privileges, which in the strictest sense are derivative trusts, and from their very nature accountable to the power which created them." 4 'Tuckahoe Canal Co. v. Tuckahoe & James River Ry. Co., 11 Leigh (Va.), 42, 36 Am. Dec. 374. See §§ 23, 24, herein. 'Bank of Toledo v. City of Toledo (Toledo Bank v. Bond), 1 Ohio St. 622, 635, 636. Definitions or meaning of monopoly, see the following cases: United States: Charles River Bridge v. Warren Bridge, 11 Pet. (36 U. S.) 420, 567, 9 L..ed. 773, per M'Lean, J.; City of Laredo v. International Bridge & Tramway Co., 66 Fed. 246, 248, 14 C. C. A. 1, per McCormick, Cir. J.; United States v. Trans-Missouri Freight Assn., 53 Fed. 440, 452, per Reiner, Dist. J.; 8. c., 58 Fed. 58, 92, 7 C. C. A. 15, 24 L. R. A. 73, per Sanborn, Cir. J.; s. c., 166 U. S. 290, 41 L. ed. 100, 17 Sup. Ct. 540; Camblos v. Philadelphia & R. R. Co., Fed. Cas. No. 2,331, per Cadwalader, Dist. J. See Slaughter House Cases, 16 Wall. (83 U. S.) 36, 65, 21 L. ed. 394. Arkansas: Levy, Ex parte, 43 Ark. 42, 53, 51 Am. Rep. 550, per Eakin, J. Connecticut: Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 19, 38, per Hinman, J., quoting Bouvier. Florida: Barbee v. Jacksonville & A. Plank Road Co., 6 Fla. 262, 268, 269, per DuPont, J., citing Walker's Amer. Law, p. 208. Montana: Davenport v. Klein 5 § 23. Same Subject Continued. It is pertinent, in this connection, to notice the rule that grants of franchises should, as to all rights claimed under them, be strictly construed against the grantee and most favorably to the sovereign power or State,—that is, strictly against the corporation and liberally in favor of the public. Such grants of franchises should be in plain language, and certain and definite in their nature,7 as only that passes which is granted in clear and explicit schmitt, 6 Mont. 502, 529, 13 Pac. 249, per McLeary, J. (gives an exclusive right or sole power). North Dakota: Patterson v. Wollmann, 5 N. Dak. 608, 615, 616, 67 N. W. 1040, 33 L. R. A. 536, per Corliss, J. Tennessee: Leeper v. State, 103 Tenn. 500, 514, 53 S. W. 962, 48 L. R. A. 167, per Wilkes, J.; Memphis, City of, v. Memphis Water Co., 5 Heisk (52 Tenn.), 495, 529, per Nicholson, C. J. Texas: Jones v. Carter (Tex. Civ. App. 1907), 101 S. W. 514, 515, 516, per Gill, C. J. See § 4, herein. • United States: Water, Light & Gas Co. of Hutchinson v. Hutchinson, 207 U. S. 385, 28 Sup. Ct. 135, case affirms 144 Fed. 256; Cleveland Electric Ry. Co. v. Cleveland, 204 U. S. 116, 130, citing Blair v. Chicago, 201 U. S. 400, 471, 50 L. ed. 801, 26 Sup. Ct. 427; Pearsall v. Great Northern Rd. Co., 161 U. S. 646, 40 L. ed. 838, 16 Sup. Ct. 705, case reverses 73 Fed. 933; Hamilton Gas Light & C. Co. v. Hamilton, 146 U. S. 258, 13 Sup. Ct. 90, 36 L. ed. 963; Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U. S. 1, 32 L. ed. 837, 9 Sup. Ct. 409; Hannibal & St. Joseph Rd. Co. v. Missouri River Packet Co., 125 U. S. 260, 31 L. ed. 731, 8 Sup. Ct. 874; Omaha Horse Rd. Co. v. Cable Tramway Co., 30 Fed. 324. Rule also applied to franchises giving monopolies. Georgia Macon & Western Rd. v. Davis, 13 Ga. 68. Illinois: Blocki v. People, 220 Ill. 444, 77 N. E. 172; Mills v. County of St. Clair, 7 Ill. 197. Maryland: Baltimore, City of, v. Chesapeake & Potomac Teleph. Co., 92 Md. 692, 48 Atl. 465. Minnesota: State v. St. Paul, Minneapolis & Manitoba Ry. Co., 98 Minn. 380, 108 N. W. 261. Nebraska: Lincoln St. R. Co. v. City of Lincoln, 61 Neb. 109, 110, 84 N. W. 802. New Jersey: Millville Gas Light Co. v. Vineland Light & Power Co. (N. J. Eq., 1906), 65 Atl. 504. New York: Trustees of Southampton v. Jessup, 162 N. Y. 122, 127, 56 N. E. 538, per Vann, J.; case reverses 10 App. Div. 456. Ohio: Bank of Toledo v. City of Toledo (Toledo Bank v. Bond), 1 Ohio St. 622, 636, per Bartley, J. Pennsylvania: Emerson v. Commonwealth, 108 Pa. 111. Tennessee: Citizens' St. Ry. Co. v. Africa, 100 Tenn. 26, 53, 42 S. W. 485, 878. 'Cleveland Electric Ry. Co. v. Cleveland, 204 U. S. 116, 130, 51 L. ed. 399, 27 Sup. Ct. citing Blair v. Chicago, 201 U. S. 400, 471, 26 Sup. Ct. 427, 50 L. ed. 801. 11 terms; whatever is not unequivocally granted is withheld, and nothing passes by implication except what is necessary to carry into effect the obvious intent of the grant. The above rule as to strict construction is held to apply so that grants of a franchise or privilege are not ordinarily to be taken as grants of an exclusive privilege. So it is declared that "Exclusive rights to public franchises are not favored. If granted, they will be protected, but they will never be presumed. Every statute which takes away from the legislature its power will always be construed most strongly in favor of the State. These are elementary principles." " 10 It is also said that an exclusive privilege cannot legally exist where there is the slightest doubt as to its validity, and that a special franchise to be exclusive must be absolutely free from ambiguity. And in a late case in the United States Supreme Court it is held that the power to grant an exclusive privilege must be expressly given, or, if inferred from other powers, must be indispensable, and not merely convenient to them.12 So, under a New York decision, grants of franchises by the same State are to be so strictly construed as to operate as a surrender of the sovereignty no further than is expressly declared by the terms of the grant; the grantee takes nothing in that respect by inference, except so far, therefore, as, by the terms of the grant, the exercise of the franchise rights granted is made exclusive, the legislative power is reserved to grant Knoxville Water Co. v. Knox- Ry. Co. v. Canal Commissioners, 21 ville, 200 U. S. 22, 26 Sup. Ct. 224, Pa. 9, 22, per Black, C. J. 50 L. ed. 353; Stein v. Bienville Water Supply Co., 141 U. S. 67, 11 Sup. Ct. 892, 35 L. ed. 622; Charles River Bridge v. Warren Bridge, 11 Pet. (36 U. S.) 420, 9 L. ed. 773; City of Helena v. Helena Waterworks Co., 122 Fed. 1, 59 C. C. A. 159; People ex rel. Woodhaven Gas Co. v. Deehan, 153 N. Y. 528, 47 N. E. 787, case reverses 11 App. Div. 175; Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167, 26 N. Y. St. R. 12 Water, Light & Gas Co., of 364, 22 N. E. 381; Pennsylvania Hutchinson v. Hutchinson, 207 U. 'Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 696, 41 L. ed. 1165, 17 Sup. Ct. 718, per Brewer, J.; McLeod v. Burroughs, 9 Ga. 213. 10 Wright v. Nagle, 101 U. S. 791, 796, 25 L. ed. 921, fer Waite, C. J. 11 West Manayunk Gas Light Co. v. New Gas Light Co., 21 Pa. Co. Ct. Rep. 379 (a franchise under Pa. act 1874). |