§ 3. Other Definitions and Expressions Classified-Franchises. The word "franchise" is frequently used to denote chises); Jersey City Gas-Light Co. v. United Gas Improvement Co., 46 Fed. 264, 265, per Greene, J., case aff'd 58 Fed. 323. Illinois: Chicago & Western Indiana Rd. Co. v. Dunbar, 95 Ill. 571, 576, 579, per Dickey, J. Iowa: Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 238, 91 N. W. 1081, per Weaver, J. (the court also says: "The term 'franchise' is defined in various ways and the meaning depends more or less upon the connection in which the word is employed"). Kentucky: Miller v. Commonwealth, 112 Ky. 404, 65 S. W. 828, per Guffy, J. (gives same definition, but cites Bouvier's L. Dict.); Louisville Tobacco Warehouse Co. v. Commonwealth, 20 Ky. L. Rep. 1047, 1050, 48 S. W. 420, per Payntor, J. (a case of corporation failing to report for franchise tax. Gives same definition, but cites Angell & Ames on Corp. § 4). Louisiana: Maestri v. Board of Assessors, 110 La. 517, 526, 34 So. 658, per Blanchard, J. (gives same definition, but cites Angell & Ames on Corp. § 4, and Bouvier's, also Blacks. L. Dicts.). Minnesota: Green v. Knife Falls Boom Corp., 35 Minn. 155, 157, per Vanderburgh, J. Nebraska: Abbott V. Omaha Smelting Co., 4 Neb. 416, 420 (citing also Angell & Ames on Corp. § 4). New York: Smith v. Mayor, etc., of New York, 68 N. Y. 552, 555, pér Earl, J. (taxation; pier as land); Curtiss v. Leavitt, 15 N. Y. 9, 170, per Shankland, J. (in connection with bank's capacity or liability to incur obligations). See Trustees of Southampton v. Jessup, 162 N. Y. 122, 56 N. E. 538, per Vann, J. (case reverses 42 N. Y. Supp. 4, 10 App. Div. 456), who applies the substance of the definition in the above text in determining that a right to make a roadway and to erect a bridge is a franchise and not a license. South Dakota: State v. Scougal, 3 S. Dak. 55, 62, 15 L. R. A. 477, 11 Ry. & Corp. L. J. 254, 6 Bkg. L. J. 432, 51 N. W. 858, 44 Am. St. Rep. 756, per Corson, J. Texas: State v. Austen & Northwestern Rd. Co., 94 Tex. 530, 532, 62 S. W. 1050, per Gaines, C. J. [a case of taxation franchises of railroad. Citing People's Rd. v. Memphis Rd., 10 Wall. (77 U. S.) 38, 51, 19 L. ed. 844]. Wisconsin: Sellers v. Union Lumbering Co., 39 Wis. 525, 527, per Ryan, C. J. Maryland: Consolidated Gas Co. v. Baltimore City, 101 Md. 541, 545548, per McSherry, C. J.; Purnell v. McLane, 98 Md. 589, 592, 56 Atl. 830, per Pearce, J.; Baltimore City v. Johnson, 96 Md. 737, 747, 61 L. R. A. 568, 54 Atl. 646, per Boyd, J. (a case where seat in stock exchange was held not liable to taxation); State v. Philadelphia, Wilmington & Balt. Rd. Co., 45 Md. 361, 379, 24 Am. Rep. 511, per Robinson, J. (a case of franchise tax and exemption from by common right' is an important taxation.) Which do not belong to the citizens of the country generally by common right: The qualification [by Chief Justice Taney, in Bank of Augusta v. Earle, 13 Pet. (38 U. S.) 519, 595, 10 L. ed. 274] “which do not belong to citizens of the country generally one and constitutes the distinguishing a right or privilege, and in a legal sense, franchise and liberty are said to be synonymous terms. "Franchise" is also said to be synonymous with rights, privileges and immunities. One of the legal meanings of the word, approaching very closely to its primary signification, is freedom, and exemption or immunity from a burden or duty to which others are subject. In its broad sense the word "franchise" is sometimes used to denote all the rights, powers and privileges of a cor does not belong to citizens of the country generally by common right. This is the distinguishing feature of a franchise. A right which belongs to the government when conferred upon a citizen is a franchise." Lasher v. People, 183 Ill. 226, 233, per Cartwright, C. J. feature of a franchise. What is privilege granted by the State, which meant by this qualification is made clear by Mr. Justice Bradley, in a recent case decided by the Supreme Court of the United States. * * * He says 'no private person can establish a public highway, public ferry or railroad, or charge tolls for the use of the same, without authority from the legislature, direct or derived. These "This ordinance then undertook to are franchises. No persons can make confer an especial privilege not enthemselves a body politic without joyed by the people of the Territory legislative authority. Corporate ca- in common, and conferred such privipacity is a franchise.' California v. lege in perpetuity, for there is no Central Pacific Rd. Co., 127 U. S. 1, limitation to it in point of time, and 40, 41, 32 L. ed. 346, 9 Sup. Ct. 6. Of no power of revocation reserved to course, as the learned judge says, the city council therein. Such a this list might be continued indefi- privilege is a franchise. In England nitely. But this quotation clearly the granting of a franchise was a illustrates the nature of a franchise. royal prerogative, and could only be Over all public property, highways, granted by the Crown, and in the navigable rivers and seas, over every- Bank of Augusta v. Earle, 13 Pet. thing that belongs to the sovereign, (38 U. S.) 519, 595, 10 L. ed. 274, the power of the government is abso- Chief Justice Taney says: 'Franlute, whether that power is derived chises are special privileges, confrom the common law or from the ferred by the government upon inState, or the National Constitution. dividuals, which do not belong to the When, therefore, the State grants the citizens of the country generally of right thus belonging to the govern- common right.' It is essential that a ment, and not to the citizens gener- franchise should be created by a ally, as a matter of right, it is the grant from the sovereign authority. grant of a franchise." State v. It is doubtful whether the legislature Scougal, 3 S. Dak. 55, 62, 15 L. R. A. can delegate the power to grant such 477, 44 Am. St. Rep. 756, per Cor- a franchise at all." Denver & S. Ry. son, J. Co. v. Denver City Ry. Co., 2 Colo. "In this country it is a special 673, 682, per Brazee, J. poration, especially those which are essential to its operations and management and to make the grant of value.15 Other definitions given or expressions used by the courts, in opinions or decisions, may be briefly stated as follows: Privileges or a privilege; 16 a privilege with conditions; 17 a privilege vested 15 Central Rd. & Banking Co. v. State of Georgia, 54 Ga. 401, 409, per Warner, C. J. (a case of duration of charter and right of State to withdraw franchise); Buchanan v. Knoxville & Ohio Rd. Co., 71 Fed. 324, 334, 18 C. C. A. 122, per Severens, Dist. J.; Morgan v. Louisiana, 93 U. S. 217, 23 L. ed. 860; State v. Morgan, 28 La. Ann. 482, 493, per Ludeling, C. J., in dissenting opinion; Board of Trade v. People, 91 Ill. 82, per Scott, C. J.; Board of Water Commissioners of White Plains, Matter of, 76 N. Y. Supp. 11, 16, 71 App. Div. 541, rev'd 176 N. Y. 239, 68 N. E. 348, per Jenks, J.; Kinney's Law Dict. & Gloss.; Stroud's Judic. Dict.; Taylor's Law Gloss. (ed., 1858), 210. See Finch's Laws of Eng., 126 (38); 2 Black. Comm., *37. 10 "If there is anything peculiar in the word franchise it must include, in any definition that can be given it, this word 'privilege,' especially where" a statute gives to a corporation "the exclusive right to the hydraulic powers and privileges." Williamette Mfg. Co. v. Bank of British Columbia, 119 U. S. 191, 198, 30 L. ed. 384, 7 Sup. Ct. 187, per Miller, J. (a case of foreclosure of mortgage, and right to sell or mortgage franchises). "Franchises are privileges derived from the government, vested either in individuals or private or public corporations." California State Teleg. Co. v. Alta Teleg. Co., 22 Cal. 398, 422, per Crocker, J. 66 The term ("franchise”) may sometimes be used in a popular sense as a privilege." Lawrence v. Times Printing Co., 22 Wash. 482, 490, 61 Pac. 166, per Reavis, J. "A privilege in the hands of a subject which the king alone can grant will be a franchise." State v. Real Estate Bank, 5 Pike (5 Ark.), 595, 599, 41 Am. Dec. 509, per Lacy, J. A privilege emanating from the sovereign power of the State, owing its existence to a grant on a prescription presupposing a grant. Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 137 Ill. 231, 28 N. E. 248, per Scholfield, J. "It is a privilege which the sovereign power alone can grant, whether it be the king or the people assembled in legislative bodies." Kennebec & Portland Rd. Co. v. Portland & Kennebec Rd. Co., 59 Me. 9, 66, dissenting opinion of Tapley, J. 17 "A franchise is a privilege conferred in the United States by the immediate or antecedent legislation, with conditions expressed, or necessarily inferential from its language, as to the manner of its exercise and for its enjoyment. To ascertain how it is to be brought into existence the whole charter must be consulted and compared." Woods v. Lawrence County, 1 Black (66 U. S.), 386, 409, 17 L. ed. 122, per Wayne, J. (a case of charter of railroad company, with authority in charter to subscribe to stock; question whether to be made in præsenti or held in abeyance.) a privilege or authority vested; 18 a liberty or privilegepowers and privileges; 19 a right or privilege; 20 a right, privilege or power of public concern which should be reserved for public control; 21 a special privilege; 22 a privilege granted, not a 18 In this country a franchise It was therefore defined to be a "may be defined as a privilege royal privilege in the hands of a subvested," or "a privilege or authority ject.' In this country the people vested in certain persons by grant have not only the rights and privifrom the sovereign authority in the leges of English subjects, but they State, to exercise powers or perform have succeeded to all the rights and acts, which without such grant they privileges of the Crown." State v. could not do or perform. A franchise City of Topeka, 30 Kan. 653, 657, 2 is jus publicum and necessarily ex- Pac. 587, per Horton, C. J., (a case of clusive in its nature." Twelfth St. liquor license, and exaction of a Market Co. v. Philadelphia & Read- charge or tax therefor. See § 21, ing Term. R. Co., 142 Pa. 580, 590, 21 herein, as to liquor license). Atl. 989, per Thayer, P. J. (a case of "Franchise in its general sense is a public market house, and right of liberty or privilege." Rapalej & eminent domain over, or right of an- Lawrence's L. Dict. other corporation to appropriate); West Manayunk Gas Light Co. v. New Gas Light Co., 21 Pa. Co. Ct. Rep. 378; Watson v. Fairmont & Suburban Ry. Co., 49 W. Va. 528, 539, 39 S. E. 193, per Poffenbarger, J. A franchise is "a privilege or authority vested in certain persons by grant of the sovereign (with us by special statute) to exercise powers or to do and perform acts which without such grant they could not do or perform." Consolidated Gas Co. v. Baltimore City, 101 Md. 541, 545548, per McSherry, C. J.; Tuckahoe Canal Co. v. Tuckahoe Ry. Co., 11 Leigh (Va.), 42. 19 "Franchise is a word of extensive signification; it is a liberty or privilege. In England, it was the powers and privileges inherent in the Crown which subsisted in the hands of a subject by grant from the Crown. 20 "The word 'franchise' is generally used to designate a right, or privilege, conferred by law." State v. Western Irrigating Canal Co., 40 Kan. 96, 99, 19 Pac. 349, per Horton, C. J. "A franchise is nothing more than the right or privilege of being a corporation, and of doing such things and such things only as are authorized by the corporation's charter." Fietsam v. Hay, 122 Ill. 293, 295, 13 N. E. 501, 11 West. Rep. 582, 3 Am. St. Rep. 492, per Mulkey, J. (a case of right to sell or transfer). See also Morgan v. State of Louisiana, 93 U. S. 217, 23 L. ed. 860, per Field, J.; Chesapeake & Ohio Ry. Co. v. Miller, 114 U. S. 176, 185, 29 L. ed. 121, 5 Sup. Ct. 813. 21 "Generalized, and divested of the special form which it assumes under a monarchical government based 22 "A franchise is generally under- of the State, owing its existence to a stood to be a special privilege grant or to prescription presupposing emanating from the sovereign power a grant." Wilmington Water Power right taken away; 23 certain immunities and privileges in which the public have an interest-a privilege or immunity of a public nature; a certain privilege or exemption-immu 24 on feudal traditions, a franchise is a form of society. They are always right, privilege or power of public educed by the laws and customs of concern, which ought not to be exer- the community. Under our system, cised by private individuals at their their existence and disposal are under mere will and pleasure, but should be the control of the legislative departreserved for public control and ad- ment of the government, and they ministration, either by the govern- cannot be assumed or exercised ment directly or by public agents, without legislative authority." Caliacting under such conditions and regulations as the government may impose in the public interest, and for the public security. Such rights and powers must exist under every fornia v. Central Pacific Rd. Co., 127 U. S. 1, 40, 32 L. ed. 150, 8 Sup. Ct. 1073, per Bradley, J.; Ashley v. Ryan, 153 U. S. 436, 441, 38 L. ed. 773, 14 Sup. Ct. 865. Co. v. Evans, 166 Ill. 548, 556, 46 vidual person or in a body politic and N. E. 1083, per Magruder, C. J. corporate. Standard Dict. In this country "a special privilege existing in an individual by grant of the sovereignty and not otherwise exercisable." Mayor v. Park Commissioners, 44 Mich. 602, 604, 7 N. W. 180, per Cooley, J. (a public park as public franchise). A special privilege granted by sovereign authority, either to an individual or a corporation, is a franchise. State v. Portage City Water Co., 107 Wis. 441, 83 N. W. 697. A special privilege emanating from the government by a legislative or royal grant and vested in an indi 23 "The real meaning of 'franchise' is a privilege granted, not a right taken away." Fresno Canal, etc., Co. v. Park, 129 Cal. 437, 442, 62 Pac. 87, per McFarland, J. (where "franchise" is held an affirmative word denoting a grant, and that the right to collect certain rates is not taken away by the use of the word. See 9 herein). As all persons have the right of forming corporations upon complying with the formalities required by law (State v. Western Irrigating Canal Co., 40 Kan. 96, 99, 19 Pac. 349, per Horton, J., in case sustaining right of irrigation company to sell property) the above words "special privilege" might, perhaps, be open to construction. See subsequent sections herein covering exclusive franchises; see Chief Justice Taney's definition, § 2, herein, see also § 3, herein. Examine Bank of California v. San Francisco, 142 Cal. 276, 280, 75 Pac. 832, per Angellotti, J. 24 "If there are certain immunities and privileges in which the public have an interest, as contradistinguished from private rights, and which cannot be exercised without authority derived from the sovereign power, it would seem to me that such immunities and privileges must be franchises. * * * If, in England, a privilege in the hands of a subject, |