JOYCE ON FRANCHISES, ESPECIALLY THOSE OF PUBLIC SERVICE CORPORATIONS. CHAPTER I. DEFINITIONS. 1. Definition of Franchise by § 6. General Franchise of Corpora Finch, Blackstone, Chitty, Cruise and Kent. 2. Chief Justice Taney's Definition of a Franchise. 3. Other Definitions and Expressions Classified - Franchises. 4. "Franchise" as a Contract As an Exclusive Right. 5. "Corporate Franchise" Corporate Franchises. tion. 7. Special Franchise of Corpora tion. 8. Primary Franchise and Secondary Franchises of Corporation. 9. "Franchise" Under Constitutions and Statutes. 1 SECTION 1. Definition of Franchise by Finch, Blackstone, Chitty, Cruise and Kent.-Finch says "a franchise is a royal privilege in the hands of a subject." This definition is one of those quoted by Kent, and has not only been adopted and followed substantially by Blackstone, Chitty, and Cruise," but it has also been accepted, either in the words of Finch or in those of Blackstone, as an authority and quoted by subse 3 *37; (Hammond's ed.) 67 [37]; (Wen- quent writers and likewise by the courts in numerous opinions and cases." United States: California v. Central Pacific Rd. Co., 127 U. S. 1, 40, 32 L. ed. 346, 9 Sup. Ct. 6 (taxation of franchises of railroad company amongst which were franchises conferred by the United States); Talcott v. Township of Pine Grove, 1 Flipp (U. S. C. C.), 120, 142, Fed. Cases No. 13,735, per Emmons, Cir. J. Alabama: Horst, Mayor, etc., v. Moses, 48 Ala. 146, per Peters, J., in dissenting opinion; State v. Moore & Ligon, 19 Ala. 520, per Parsons, J. California: Spring Valley Water Works v. Schottler, 62 Cal. 69, 106, per Thornton, J. Connecticut: Norwich Gas Light Co. v. The Norwich City Gas Co., 25 Conn. 19, 36, per Hinman, J. (a case of right to lay gas-pipes in streets). Illinois: Lasher v. People, 183 Ill. 226, 232, per Cartwright, C. J.; Belleville v. Citizens' Horse Ry. Co., 152 Ill. 171, 185, 38 N. E. 584, 26 L. R. A. 681, per Baker, J. (a case holding that corporate property cannot be forfeited by ordinance); 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); Chicago & Western Indiana Rd. Co. v. Dunbar, 95 Ill. 571, 575, per Dickey, J. (a case of what is a franchise under a state constitution and also as to appellate jurisdiction); People v. Holtz, 92 Ill. 426, 428 (holding that an office is not a franchise); Board of Trade of Chicago v. The People, 91 Ill. 80, 83 (a question of appeal and the right of a member of a Board of Trade to be restored to membership); Chicago City Ry. v. People, 73 Ill. 541, 547 (a case of quo warranto against a street railway company); People ex rel. Koerner v. Ridgley, 21 Ill. 65, 69, per Breese, J.; Cain v. City of Wyoming, 104 Ill. App. 538, 540, per Brown, J. (a case of a grant for the use of streets made by city ordinance for a water works system, also of municipal indebtedness and powers). Iowa: Prosser v. Wapello County, 18 Iowa, 327, 333, per Dillon, J. Kansas: State v. City of Topeka, 30 Kan. 653, 657, 2 Pac. 587, per Horton, C. J. (holding that the right of licensing the sale of intoxicating liquors as a beverage and the exaction of tax or charge therefor was a franchise or privilege which no city in the State had the power to exercise and that quo warranto was the proper remedy in case of an unlawful assumption of such power.) Kentucky: Louisville Tobacco Warehouse Co. v. Commonwealth, 20 Ky. L. Rep. 1047, 1050, 48 S. W. 420 ("a branch of the king's prerogative subsisting in the hands of a subject." A case of corporation failing to report for franchise tax); Commonwealth v. City of Frankfort, 13 Bush (76 Ky.), 185, 189, per Lindsey, C. J. (a lottery case). Louisiana: Maestri v. Board of Assessors, 110 La. 517, 526, 34 So. 658, per Blanchard, J. Michigan: Mayor v. Park Commissioners, 44 Mich. 602, 604, 7 N. W. 180, per Cooley, J. (a case of a public park as a public franchise). Minnesota: State v. Minnesota Thresher Mfg. Co., 40 Minn. 213, 225, 3 L. R. A. 510, 41 N. W. 1020, per Mitchell, J. ("The definition of a 'franchise' given by Finch, adopted Another definition, given by Kent, is that franchises are "certain privileges conferred by a grant from government, and vested in individuals," and this definition has by Blackstone, and accepted by every authority since, is 'a royal privilege or branch of the King's prerogative, subsisting in the hands of a subject." A case involving the Constitution; quo warranto; corporations under Act 1873; Ultra Vires acts; forfeiture). New York: People v. Utica Ins. Co., 15 Johns. (N. Y.) 357, 386, 387, 8 Am. Dec. 243, per Spencer, J. ("All the elementary writers agree in adopting Finch's definition." A case of usurpation of franchise by insurance company to carry on banking business as a corporation). Ohio. State v. Pittsburgh, Youngstown & Ashtabula Rd., 50 Ohio St. 239, 251, 33 N. E. 1051, per Marshall, J. (a case of quo warranto); Knoup v. Piqua Bank, 1 Ohio St. 603, 613, per Corwin, J. ("A franchise is a royal privilege subsisting in a subject by a grant from the crown.") Pennsylvania: Douglass's Appeal, 118 Pa. 65, 68, per Master's Report; Commonwealth v. Arrison, 15 Serg. & R. (Pa.) 127, 130, 16 Am. Dec. 531, per Tilghman, C. J. ("A franchise is a word of extensive signification. It is defined by Finch, whom all subsequent writers have followed, to be a 'royal privilege in the hands of a subject.' A case of information in nature of quo warranto against persons acting as trustees of incorporated church.) See Twelfth St. Market Co. v. Philadelphia & Reading Term. Co., 142 Pa. 580, 590, 21 Atl. 989, per Thayer, P. J.; Shamokin Valley Rd. Co. v. Livermore, 47 Pa. 465, 468, 86 Am. Dec. 552, per Agnew, J. South Dakota: State v. Scougal, 3 S. Dak. 55, 62, 15 L. R. A. 477, 44 Am. St. Rep. 756, per Corson, J. (a case of banking business). West Virginia: State v. Peel Splint Coal Co., 36 W. Va. 802, 813, 17 L. R. A. 385, 15 S. E. 1000, per Lucas, Pres. (a case of constitutional law; “ Scrip act; laborers' wages; Screening act; weighing and measuring coal; construction of statutes and indictment). V. England: Attorney General Trustees of British Museum, Law Rep. (1903), 2 Chan. Div. 598, 612, per Farwell, J. ("A franchise is a royal privilege or a branch of the king's prerogative subsisting in a subject by a grant from the king. Chitty on Prerogatives, 119. So long as it is attached to the Crown it is called a prerogative, but when it is granted to a subject it is called a franchise. Chitty on Prerogatives, 118." A case of treasure-trove held not to pass under a general grant of franchises, but must be expressly granted when it becomes a franchise in the grantee.) See also Viner's Abridg., "Franchises," 508; Angell & Ames on Corp. (9th ed.), §§ 4, 737; Bouvier's L. Dict.; Brown's L. Dict.; Burn's L. Dict.; Burrill's L. Dict.; 3 Jacob's L. Dict., 122, title "Franchises;" Kinney's L. Dict. & Gloss.; Rapalje & Lawrence's L. Dict.; Shumaker & Longsdorf's Cyc. Dict.; Stroud's Judic. Dict.; Mozley & Whiteley's L. Dict. 'Kent's Comm. (14 ed.), bottom p. 723, *p. 458. also been adopted and relied upon by the courts to a great extent. And with the exception that the words "particular privilege" are used instead of the words "certain privileges" this last definition by Kent has also been given in a number of opinions. Other forms of this definition are as follows: 'Alabama: Horst, Mayor, etc., v. Moses, 48 Ala. 129, 146, per Saffold, J. Arkansas: State v. Real Estate Bank, 5 Ark. (5 Pike) 595, 599, 41 Am. Dec. 109, per Lacy, J. California: Henshaw ex parte, 73 Cal. 486, 493, 15 Pac. 110, per McKinstry, J.; Spring Valley Water Works v. Schottler, 62 Cal. 69, 106, per Thornton, J. Colorado: Londoner v. People, 15 Colo. 246, 247, 25 Pac. 183, per Hayt, J.; Arapahoe County v. Rocky Mountain News Printing Co., 15 Colo. App. 189, 202, 61 Pac. 494, per Wilson, J. Delaware: Wilmington & Reading Ry. Co. v. Downward (Del. Ct. Err. & App., 1888), 14 Atl. 720, 721, per Saulsbury, Ch. J. Georgia: State ex rel. Waring v. Georgia Medical Society, 38 Ga. 608, 626, 95 Am. Dec. 408, citing Bouvier's L. Dict., but definition same as Kent's. Illinois: 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), citing Bouvier's L. Dict., but definition same as Kent's. right of transfer and construction of charter), quoting Bouvier's L. Dict., but definition same as Kent's. Maine: Kennebec & Portland Rd. Co. v. Portland & Kennebec Rd. Co., 59 Me. 9, 66, dissenting opinion of Tapley, J. (mortgage and foreclosure of railroad franchise and other property), citing Bouvier's L. Dict., but definition same as Kent's. Minnesota: McRoberts v. Washburne, 10 Minn. 23, 27. New York: Milhau v. Sharp, 27 N. Y. 611, 619, 84 Am. Dec. 314, per Selden, J., quoting Bouvier's L. Dict., but definition same as Kent's. Ohio: State v. Pittsburgh, Youngstown & Ashtabula Rd. Co., 50 Ohio St. 239, 251, 33 N. E. 1051, per Minshall, J. Oregon: Montgomery v. Multnomah Rd. Co., 11 Oreg. 344, 354, per Lord, J. Wisconsin: Sellers v. Union Lumbering Co., 39 Wis. 525, 527, per Ryan, C. J. • California: Ex parte Henshaw, 73 Cal. 486, 492, 15 Pac. 110, per McKinstry, J. Colorado: Londoner v. People, 15 Colo. 247, per Hayt, J.; Arapahoe County v. Rocky Mountain News Printing Co., 15 Colo. App. 189, 202, 61 Pac. 494, per Wilson, J. Connecticut: Crum v. Bliss, 47 Conn. 592, 602, per Park, C. J. (case of transfer of corporate franchise). Iowa: Young v. Webster City & So. West Ry. Co., 75 Iowa, 140, 143, 39 N. W. 234, per Rothrock, J. (case of forfeiture of railroad fran "A particular privilege conferred by grant from a sovereign or government and vested in individuals;" 10 "a particular privilege or right granted by a prince or sovereign to an individual, or to a number of persons;" 11 a certain privilege of a public nature, conferred by grant from the government, and vested in individuals.12 § 2. Chief Justice Taney's Definition of a Franchise.— Under a definition which is generally accredited to Chief Justice Taney of the United States Supreme Court, franchises are special privileges conferred by the government on individuals, and which do not belong to the citizens of the country generally of common right.13 This definition has been extensively quoted or adopted and relied upon as an authority by the courts in their opinions and decisions.14 chise and taxation), quoting from Bromin. Kentucky: Miller v. Commonwealth, 112 Ky. 404, 65 S. W. 828, per Guffy, J. (Bouvier's L. Dict. is cited, however); Louisville Tobacco Warehouse Co. v. Commonwealth, 20 Ky. L. Rep. 1047, 1050, 48 S. W. 420 (a case of corporation failing to report for franchise tax); Commonwealth v. City of Frankfort, 13 Bush (76 Ky.), 185, 189, per Lindsay, C. J. (a lottery case). Ohio: State v. Pittsburgh, Youngstown & Ashtabula Rd. Co., 50 Ohio St. 239, 251, 33 N. E. 1051, per Marshall, J. (a case of quo warranto to determine right to franchise). Wisconsin: Sellers v. Union Lumbering Co., 39 Wis. 525, 527, per Ryan, C. J. (a case of right to take tolls). See also Kinney's L. Dict. & Gloss. 10 Crum v. Bliss, 47 Conn. 592, 602, per Park, C. J. (a case of transfer of corporate franchise), quoting Webster's Dict.; Chicago Municipal Gas Light & Fuel Co. v. Town of Lake, 130 Ill. 42, 53, 22 N. E. 616, per Baker, J. (a case of charter powers to, and use of streets by, a gas company, its rights under grant as a contract and specific performance); Louisville Tobacco Warehouse Co. v. Commonwealth, 20 Ky. L. Rep. 1047, 1050, 48 S. W. 420, per Paynter, J. (a case of corporation failing to report for franchise tax) quoting Webster's Dict. 11 Central Railroad & 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), quoting Webster's Dict. 12 Truckee & Tahoe Turnpike Road Co. v. Campbell, 44 Cal. 89, 91, applied by Rhodes, J., to a right to collect tolls on bridges, roads, etc. 13 Bank of Augusta v. Earle, 13 Pet. (38 U. S.) 519, 595, 10 L. ed. 274. 14 United States: People's Rd. v. Memphis Rd., 10 Wall. (77 U. S.) 38, 51, 20 L. ed. 844; Western Union Teleg. Co. v. Norman, 77 Fed. 13, 22, per Barr, Dist. J. (taxation of fran |