said that the ordinary franchise of a railroad company is, by virtue of the sovereign power of eminent domain, to condemn, take and use lands for the purpose of a public highway, and to take tolls from those who use it as such.8 So it is declared in a Texas decision that the ordinary franchises of a railroad corporation are the right to exist and to transact business as a corporation, and the right to condemn property for its use.00 It is also said that exclusive grants for ferries, bridges and turnpikes are grants of franchises of a public character appertaining to the government, and that their use usually requires the exercise of the right of eminent domain.o1 § 20. Exemption or Immunity from Taxation, Jury Duty, and Working on Public Roads. In a case in the United States Supreme Court, decided in 1876, it was held that immunity from taxation is not itself a franchise of a railroad corporation which passes as such without other description 1050, per Gaines, C. J. (a case of railway franchise taxation). 91 of private citizens, without their consent, is a sovereign right; it is the right, so called, of eminent domain. Whenever that right is delegated to a corporation or an individual, by an act of the general assembly, the corporation or individual has a franchise of eminent domain. In England, also, a franchise may become the property of a corporation or an individual. C. C. A. 106. Whenever, therefore, a California: Boca & Loyalton Rd. Co. v. Sierra Valleys Rd. Co., 2 Cal. Ct. App. 546, 84 Pac. 298. Slaughter-House Cases, 16 Wall. (83 U. S.) 36, 88, 21 L. ed. 394, per Field, J., in dissenting opinion. See the following cases as to the right of corporations to exercise the power of eminent domain: franchise is conferred, upon a corporation, or an individual, nothing but the public good is to be considered; the private advantage which may result to the corporation or individual, is but incidental to the chief object and cannot ripen into a right of property." "Shamokin Valley Rd. Co. v. Livermore, 47 Pa. 465, 468, 68 Am. Dec. 552, per Agnew, J. **State v. Austin & Northwestern Rd. Co., 94 Tex. 530, 532, 62 S. W. United States: Miocene Ditch Co. v. Jacobsen, 146 Fed. 680, 77 Idaho: Potlach Lumber Co. v. Peterson, 12 Ida. 769, 88 Pac. 426. Montana: State v. District Court of Tenth Jud. Dist. of Meagher County, 34 Mont. 535, 88 Pac. 44. New York: Pocantico Waterworks Co. v. Bird, 130 N. Y. 249, 41 N. Y. St. R. 315, 29 N. E. 246; East Canada Creek Elect. Light & Power Co., In re, 99 N. Y. Supp. 109, 49 Misc. 565. to a purchaser of its property.92 In this case the court, per Field, J., says: "Much confusion of thought has arisen in this case and in similar cases, from attaching a vague and undefined meaning to the term 'franchise.' It is often used as synonymous with rights, privileges and immunities, though of a personal and temporary character; so that, if any one of these exists, it is loosely termed a 'franchise,' and is supposed to pass upon a transfer of the franchise of the company. But Pennsylvania: Towanda Bridge Co., In re, 91 Pa. 216. Washington: State ex rel. Harlan, Centralia-Chehalis Elect. Ry. & Power Co., 42 Wash. 633, 85 Pac. 344. Maryland: Baltimore, Chesapeake & Atlantic Ry. Co. v. Ocean City, 89 Md. 89, 42 Atl. 922, 14 Am. & Eng. Rd. Cas. (N. S.) 195 (does not pass to purchaser without express statutory direction). But see Balti"Morgan v. Louisiana, 93 U. S. more, Chesapeake & Atlantic Ry. 217, 23 L. ed. 860. Co. v. Wicomico County Commrs., 103 Md. 277, 63 Atl. 678. That exemption or immunity from taxation is not such a franchise as can be transferred, assigned, or will pass to a purchaser, see the following cases: Missouri: State ex rel. Crumpacker v. Chicago, Burlington & Kansas City Ry. Co., 89 Mo. 523, 14 S. W. 522 (not transferrable in absence of express statutory authority). Tennessee: Wilson v. Gaines, 9 Baxt. (68 Tenn.) 546, 552. Virginia: Examine Seaboard & R. R. Co. v. Norfolk County, 83 Va. 195, 2 S. E. 278. See also subsequent sections herein upon taxation. United States: Mercantile Bank v. Tennessee, 161 U. S. 161, 40 L. ed. 656, 16 Sup. Ct. 466; Pickard v. East Tennessee, Virginia & Georgia Rd. Co., 130 U. S. 637, 32 L. ed. 1051, 9 Sup. Ct. 640, 6 Rd. & Corp. L. J. 130; Memphis & Little Rock Rd. Co. v. Railroad Commissioners, 112 U. S. 609, 28 L. ed. 837, 5 Sup. Ct. 899; Wilson v. Gaines, 103 U. S. 417, 421, 26 L. ed. 401; East Tennessee, Virginia & Georgia Rd. Co. v. County of Hamblen, 102 U. S. 273, 277, 26 L. ed. 121, 152. Examine Rochester Ry. Co. v. City of Roches- 77 Miss. 194, 24 So. 200, 317, 1 ter, 205 U. S. 236, 254, 255, per Moody, J.; Savannah v. Jesup, 106 U. S. 563, 565-570, 27 L. ed. 276, 1 Sup. Ct 512. That such exemption is not such a franchise as passes on consolidation see: Keokuk & Western Rd. Co. v. Missouri, 152 U. S. 301; Adams v. Yazoo & Mississippi Valley R. Co., Miss. Dec. (No. 30), 296. Ex- the term must always be considered in connection with the corporation or property to which it is alleged to appertain.' The court then specifies certain franchises which belong to a railroad company and concludes with the words: "Immunity from taxation is not one of them. The former may be conveyed as a part of the property of the company; the latter is personal and incapable of transfer without express statutory direction." The above quotation has been given and relied upon in several cases,93 and in another Federal case which was decided in 1884, and which also gives the above quotation, it is declared, as affirming the 1876 case, that immunity from taxation conferred on a corporation by legislation was not a franchise, although in the 1884 case the principal point determined was that immunity from taxation did not pass by a transfer of the corporate property,94 and it has, therefore, been frequently declared that immunity from taxation is not a franchise. But the same court decided in 1885, that an exemption from taxation granted by the government to an individual is a franchise, which can be lost by acquiescence under the imposition of taxes for a period long enough to raise a conclusive presumption of a surrender of the privilege; and that such acquiescence for a period of sixty years, or even for a much shorter period, raises such a presumption.95 In another case the court in discussing the meaning of the word "United States: East Tennessee, Virginia & Georgia Rd. Co. v. County of Hamblen, 102 U. S. 275, 277, 26 L. ed. 121, 152. Maine: State v. Maine Central Rd. Co., 66 Me. 488. 512, per Appleton, C. J. Maryland: Baltimore, Chesapeake & Atlantic Ry. Co. v. Mayor, etc., of Ocean City, 89 Md. 89, 98, 42 Atl. 922. Nebraska: Western Union Tel. Co., v. City of Omaha (Neb., 1905), 103 N. W. 84, 86. Texas: Denison & Sherman Ry. Co. v. St. Louis Southwestern Ry. Co., 30 Tex. Civ. App. 474, 481, 482, 72 S. W. 201, in dissenting opinion, Bookhout, Assoc. J. Chesapeake & Ohio Rd. Co. v. Miller, 114 U. S. 176, 185, 186, 29 L. ed. 121, 5 Sup. Ct. 813. 95 Given v. Wright, 117 U. S. 648, 29 L. ed. 1021, 6 Sup. Ct. 907. Exemption from taxation is declared to be "a franchise property." State v. Morgan, 28 La. Ann. 482, 493, per Ludeling, C. J., in dissenting opinion (a case of exemption from taxation, right of transfer and construction of charter). "franchise" considers it in its broad sense and its legal meanings, and continuing says: "It is true that it is now generally used in more restricted senses, and for that reason the Supreme Court of the United States has held in a number of cases that, because of the reasons for adopting a strict construction of language claimed to create or transfer exemptions from taxation, and a presumption against an intent to do either, a reference to the 'franchises' of a corporation would not include its immunities, in the absence of other language or circumstances indicating that the term was used with a signification wide enough to include them." " An exemption from jury duty and from working on public roads granted in the charter of a railroad company to its officers, agents and servants, is not a grant of a mere personal privilege, but is a grant of a valuable right or privilege upon the company based upon considerations of public policy.97 § 21. Political Rights, "Elective Suffrage,' "Elective Suffrage," "Elective Franchise" or Freedom-Public Office-Attorney or Counsellor-Right to Preside-Appointment of ProfessorsLiquor License-" Commodities "-Fishery-Public Market -Patent Right-Trade-mark-" News Contract."-Various other franchises exist, such as the political rights of citizens and subjects, the "elective suffrage," or the "elective franchise," which is not a natural but a permissive right, dependent for its exercise upon the law conferring it.98 It is also said that 96 Buchanan v. Knoxville & Ohio Rd. Co., 71 Fed. 324, 334, 18 C. C. A. 122, per Severens, Dist. J. per Perley, C. J.; People ex rel. See also the following cases: 97 Johnson v. State, 88 Ala. 176, 7 So. 253 (followed in Zimmer v. State, 30 Ark. 677, which also holds that 4 Wash. (U. S. C. C.) 371, Fed. Cas. another company consolidated with No. 3,230, where Washington, Cir. it succeeds to such right, where J., in discussing the points as to the consolidation is authorized by the State). As to exemption being unconstitutional and class legislation, see Neely v. State, 4 Lea (72 Tenn.), 316. "privileges and immunities of citizens of the several States" under the constitution mentions as fundamental, "the elective franchise, as regulated and established by the * Pierce v. Emery, 32 N. H. 507, laws or constitution of the State in each individual of a corporation has "a franchise or freedom." " A public office is declared to be of the nature of a franchise in which it is to be exercised." The Board of Registration, 1 McArthur case, however, was one as to regulation of fisheries and constitutional law. (D. C.), 169, 29 Am. Rep. 582. Holding that elective franchise uniformly rests upon the express authority of the political power and revolves within the limitations of express law and includes only male citizens in the district. Delaware: Frieszleben v. Shallcross, 9 Houst. (Del.) 1, 59, 8 L. R. A. 337, 19 Atl. 576 (a case where the constitution required every elector to pay a county tax before elec- Indiana: Gougar v. Timberlake, tion; a statute requiring the pay- 148 Ind. 38, 46 N. E. 339, 37 L. R. ment of poll taxes and dropping A. 644, 62 Am. St. Rep. 487 (where delinquents from assessment list; said the nature of suffrage, considered legislation being held not to dis- as a political privilege and not a franchise a voter). “It is conceded natural right, is discussed, as well that the power to use the ballot, is one derived from the government, or the political society in which the elector resides." District of Columbia: Spencer v. as the question of woman suffrage and constitutional law); Morris v. Powell, 125 Ind. 281, 292, 9 L. R. A. 326, 25 N. E. 221 [where regulations of the elective franchise are above cited, it was declared by Chief Justice Holt (p. 951) that the right of sending members to Parliament must be granted to a corporation "and when this right of election is granted within time of memory it is a franchise, that can be given only to a corporation." And it was held that a man who has the right to vote at an election for members of Parliament could maintain an action against the returning officer for refusing to admit his vote. See 3 Ld. Raymond, 320. "Dartmouth College v. Woodward, 4 Wheat. (17 U. S.) 518, 657, 4 L. ed. 629. See also same case Id., 700, where Story, J. (citing Ashby v. White, 2 Ld. Raym. 938,1 Kyd. on Corp. 16), says: "The corporators are not mere agents, but have vested rights in their character as corporators. The right to be a freeman of a corporation is a valuable temporal right. It is a right of voting and acting in the corporate concerns, which the law recognizes and enforces, and for a violation of which it provides a remedy. It is founded on the same basis as the right of voting in public elections; it is as sacred a right; and whatever That the word "franchise" under might have been the prevalence of the English Stat. 9 Anne, c. 20 reformer doubts since the time of Lord Holt, such a right has always been deemed a valuable franchise or privilege." In the case of Ashby v. White, 2 Ld. Raymond, 938, 6 Mod. 45, Franchise also means the locality subject to a franchise. Rapalje & Lawrence's L. Dict. fers only to the franchise of being a freeman of a municipality, see Union Water Co. v. Kean, 52 N. J. Eq. 111, 128, 27 Atl. 1015, per Pitney, V. C., citing High, Extr. Rem. § 602, Rex v. Williams, 1 Burr. 402. |