that it can only be derived from the sovereign.1 And a board of inspectors being general officers of the State, the power to considered, quoting Cooley's Const. Lim. (5th ed.) p. 758]. 1 Ex parte Henshaw, 73 Cal. 486, 492, 15 Pac. 110, per McKinstry, J. (§ 802 of the Code of Civ. Proc. provides for an action against one who unlawfully exercises any public office "or any franchise"). Maryland: Anderson v. Baker, 23 Md. 531. The regulation of the Collister, 11 Ohio Rep. 50, Judge Hitchcock said, that an officer, had 'a vested right' in his office, but that dictum is opposed to many and wellconsidered authorities. Butler V. The State of Pennsylvania, 10 Howard's Rep. 402; The State v. Dens, R. M. Charleton's R. (Ga.) 397; The A franchise "is said to be a privilege conferred by grant from the government and vested in indi- Commonwealth v. Bacon, C. S. & viduals as a public office." People ex rel Koerner v. Ridgeley, 21 Ill. 65, 69, per Breese, J. "Lexicographers generally define 'office' to mean 'public employment'; and I apprehend its legal meaning to be an employment on behalf of the government, in any station or public trust, not merely transient, occasional or incidental. In common parlance, the term 'office' has a more general signification. Thus we say the office of executor, or guardian, or the office of a friend." Matter of Oaths by Attorneys & Counsellors, 20 Johns. (N. Y.) 491, 493. "An office like a franchise, is a royal gift, it is considered property in England. Some offices are estates in fee simple, or fee tail, some, estates for life, and some only estates at will. Cruise's Digest, volume 3, title 25. There are some offices, also, which are said to be estates for a term of years, or for one year. And ministerial offices may be granted in reversion, or to commence at a future period. Some offices are even assignable by deed. But in America, a public officer is only a public agent or trustee, and has no proprietorship, or right of property in his office. It is true that in The State v. Mc Rawle, 322; The Commonwealth v. Mawe, 5 Watts & S. (Pa.) 418; The Commonwealth v. Clark, 7 Watts & S. (Pa.) 127; Barker v. The City of Pittsburg, 4 Penn. St. Rep. 51;" Knoup v. The Piqua Bank, 1 Ohio St. 603, 616, per Corwin, J. A statute providing that “in case any person or persons shall usurp, intrude into or unlawfully hold or exercise any office or franchise within this State, it shall and may be lawful to and for the attorney general," etc., is substantially a copy of the English Act, 9 Anne, 20, and the word "franchise" in the latter statute "has always been construed in the English courts to refer to the franchise of being a freeman of a municipality and no more." High, Extr. Rem. § 602; Rex. v. Williams, 1 Burr. 402, and the remedy of quo warranto, under that act, is there confined to municipal or public or quasi public corporations. High, Extr. Rem. § 626, Short, Inf. 129. Its application to offices in private corporations had its origin in this country." Union Water Co. V. Kean, 52 N. J. Eq. 111, 128, 27 Atl. 1015, per Pitney, V. C.; the change being from "said" in the English act to "any" office or franchise. 2 appoint them is a franchise. But a franchise is not conferred upon the president of a county board by a constitutional elective franchise is an unqualified in Spitzer v. Village of Fulton, 68 right of the States; citizenship and N. Y. Supp. 660, 662, 33 Misc. 257, right of suffrage are not inseparable, to point that right of suffrage is not as latter is not one of the universal, a natural right, but a privilege to be inalienable rights; suffrage is not a granted or denied, regulated or right of property or absolute, un- modified. This last case is affirmed, qualified personal right. Missouri: Blair v. Ridgely, 41 Mo. 63, 174, 97 Am. Dec. 248. Holding that the elective franchise cannot be exercised as a natural right and is subject to such qualifications as may be prescribed by the State or body politic. It was argued by counsel in this case that: "The very term franchise excludes the idea of natural right; for a franchise is a privilege granted by the sovereign authority to an individual." Id., 161. New York: People v. Barber, 48 Hun (N. Y.), 198, 201, 15 N. Y. St. R. 601, 28 Wkly. D. 313. "The elective suffrage is not a natural right of the citizen. It is a franchise dependent upon law by which it must be conferred to permit its exercise." "It is a political right to be given or withheld at the pleasure of the lawmaking power of the sovereignty, and is not deemed within the privileges and immunities guaranteed to the citizen by the Constitution of the United States," per Bradley, J. Case reversed, 25 N. Y. St. R. 184 (case cited in Gage, Matter of, 141 N. Y. 112, 116, 56 N. Y. St. R. 662, 35 N. E. 1094, to point that constitutional definition of elector must be read into laws regulating election of county officers; cited also 69 N. Y. Supp. 1146, 61 App. Div. 612, which is affirmed, 172 N. Y. 285, 64 N. E. 957); People ex rel. Frost v. Wilson, 3 Hun (10 N. Y. Supr. Ct.), 437, rev'd, 62 N. Y. 186. Right of suffrage-whence derived and power of legislature to regulate. Pennsylvania: Huber v. Reily, 53 Pa. 112, 115, 23 Leg. Int. 228. "The right of suffrage at a state election is a state right, a franchise conferrable only by the State, which Congress can neither give or take away. * * * Congress may doubtless deprive an individual of * * * even the right of suffrage. But this is a different thing from taking away or impairing the right itself," per Strong, J.; Duffy, In re, 4 Brewst. (Pa.) 531. The exercise of the elective franchise, though a constitutional right, is not one of unrestrained license, and is to be enjoyed in subordination to law. South Dakota: Chamberlain v. Wood, 15 S. Dak. 216, 221, 56 L. R. A. 187, 88 N. W. 109, 91 Am. St. Rep. 674. "The right of suffrage is not a natural or civil right, but a privilege conferred upon the person by the constitution and laws of the State. Judge Cooley, in his work on Constitutional Limitations, says, 'Participation in the elective franto be a franchise. Knoup v. Piqua Bank, 1 Ohio St. 603, 613, per Cor Lasher v. People, 183 Ill. 226, 236, 55 N. E. 663, 47 L. R. A. 802. The right to create an office is said win, J. statute empowering him to appoint a civil service commission. Nor is an office a franchise within the meaning of a constitution and a statute prescribing the appellate jurisdiction of courts. And a public office is not a franchise under a statute clearly distinguishing the two, and the right of appeal does not exist where the judgment relates to the former and not to the latter.5 It is declared in a New York case that an attorney or counsellor does not hold an office, but exercises a chise is a privilege, rather than a Coldw. (43 Tenn.) 569, 576. The right, and it is granted or denied elective franchise is not an inalienupon grounds of general policy.' able right or privilege, conferred, Cooley Const. Lim. (6th ed.) 752," limited or withheld, at the pleasure per Corson, J. of the people, acting in their sovereign capacity. Tennessee: State v. Staten, 6 Coldw. (46 Tenn.) 233, 255. "The elective franchise is at once, a right and a trust, conferred by the people of a State, acting in their supreme and sovereign capacity, upon such members of the body politic as they, in their sovereign discretion, deem should hold and exercise it, having regard to the protection, both of private rights and of public interests. Once conferred upon the citizen, it is a franchise in which he has a right of property which the law protects," per Andrews, J. "The elective franchise is a right which the law protects and enforces as jealously as it does property in chattels or lands. * * * Persons invested with it, cannot be deprived of it, otherwise than by 'due process of law."" Id., p. 243, per Smith, J.; Ridley v. Sherbrook, 3 3 Morrison v. The People, 196 Ill. 454, 63 N. E. 989. 'Graham v. People, 104 Ill. 321; People v. Holz, 92 Ill. 426 (a case of quo warranto to try title to office of inspectors of schools). An office of alderman is not a franchise within a statute giving the Utah: Anderson v. Tyree, 12 Utah, 129, 149, 42 Pac. 201. "It is conceded that the elective franchise is permissive, and from its nature excludes all not within the classes pointed out, and that it requires a legislative enactment or authority to extend the privilege to classes not previously embraced." Women held not entitled to vote. The "elective franchise" under a statute as to preventing "a fair, free and full exercise of the elective franchise" "is the right or privilege of a qualified elector or voter to cast his ballot freely in favor of the man of his choice, in an election authorized by law to be held.” Parks v. State ex rel. Owens, 100 Ala. 634, 651, 13 So. 756, per Stone, C. J.; Acts Ala. 1893-94 p. 468 (Act Feb. 10, 1893, §1, subdv. 5). Supreme Court jurisdiction of appeals direct from the trial court in quo warranto to test the right to the office. McGrath v. People, 100 Ill. 464. Londoner v. Barton, 15 Colo. 246, 247, 25 Pac. 183, per Hayt, J. privilege or franchise; that as attorneys or counsellors, they perform no duties on behalf of the government; they execute no public trust, but they enjoy the exclusive privilege of prosecuting and defending suits for clients, who may choose to employ them. Again, the right of a mayor of a city to preside over the meetings of a city council, is a franchise within the meaning of a statute, and quo warranto will lie to test such right even though such a case is not a contest for office. And it is also declared that "if appointment of professors by an incorporated college is a franchise the assertion of such right, unless justified by authority from the legislature, is the usurpation of a franchise" for which an information in the nature of a quo warranto may be filed. Under a Kansas decision the right of licensing the sale of intoxicating liquors as a beverage, and the exaction of a tax or charge therefor, is a franchise or privilege which no city has the power to execise, and, if unlawfully exercised, quo warranto is the proper remedy. And in Alabama the right to operate a dispensary for the sale of liquors is held to be the exercise of a franchise.10 So in Kentucky such a license is held to be a franchise.11 But in 'Matter of Oaths by Attorneys & Counsellors, 20 Johns. (N. Y.) 491, 493. The court says also: "Various classes of persons are licensed in the city of New York, with an exclusive privilege in their employment; yet they are not public officers. Physicians are also licensed, pursuant to statute; yet they hold no office or public trust, in legal construction." The right to practice law is not a privilege or immunity of a citizen of the United States within the meaning of the first section of the Fourteenth Article of Amendment of the Constitution of the United States. Bardwell v. State, 16 Wall. (U. S.) 130. from proper authority-in this country from the legislature. The right to preside therein is a legal right conferred by law. This right is a 'franchise' or privilege given by law, and therefore, if invaded, the law affords a means of redress, a remedy, and this remedy is by quo warranto, or information in that nature," citing Angell & Ames, Corp. § 737. 8 People v. Trustees of Geneva College, 5 Wend. (N. Y.) 211, 220, per Savage, Ch. J. 'State v. City of Topeka, 30 Kan. 653, 661, 2 Pac. 587. 10 City of Uniontown v. State, 145 Ala. 471, 39 So. 814; State 'Cochran v. McCleary, 22 Iowa, v. Wilburn (Ala., 1905), 39 So. 75, 89, per Dillon, J., who said: "A public corporation can only emanate 816. 11 Miller v. Commonwealth, 112 an Illinois case a liquor license is not a franchise under statutory provision allowing appeals in certain cases. 12 As to As to "commodities" it is said that: "It has been repeatedly held that corporate franchises enjoyed by grant from the government are commodities and subject to an excise. So with corporate franchises granted by a foreign government." 13 It is said in a New Jersey case that: "A free fishery or exclusive right of fishing in a public river, is a royal franchise, which is now frequently vested in private persons, either by grant from the crown or by prescription.14 But no exclusive right of fishing, or several fisheries, in the Hudson river, can be granted to any one person, where, under the constitution, no franchise which does not promote the public welfare may be granted.15 An exclusive privilege to build and operate a public market Ky. 404, 65 S. W. 828. Point arose upon question of right of appeal. 12 Martins v. Rock Island County Atty., 186 Ill. 314, 318, 57 N. E. 871. 13 Gleason v. McKay, 134 Mass. 419, 424, 425, per Morton, C. J. The defendant in this case was not a corporation but merely a partnership. See Finch's Law of Eng. 126 [38]. Greenleaf's Cruise on Real Prop. 261). 15 Slingerland V. International Contracting Co., 60 N. Y. Supp. 12, 17, 43 App. Div. 215, per Landon, J., who also says: "The plaintiffs' claim is not to the land, but to what may come because of the land,- -an incorporeal hereditament, which Blackstone classifies as a franchise. 2 Bl. Where a state constitution em- Comm. 39. It manifestly is a franpowers the legislature to impose and chise if it is a private, exclusive levy reasonable duties and excises monopoly of a public right. Under upon "commodities," etc., an act our constitution no franchise can be of incorporation is declared to be granted except to promote the puba commodity or privilege. Com- lic welfare. To grant to one person monwealth v. People's Five Cent the exclusive right of fishing in any Sav. Bank, 5 Allen (87 Mass.), 428, 435, per Bigelow, C. J., who says, "Certainly it is most just and reasonable that a privilege, or to use the words of the constitution, 'a commodity,' which an act of incorpo- ers "right to ice." The court said: ration furnishes * * * should bear a portion of the public burdens, in the form of an excise." part of the Hudson river, would be to deprive every other person of his privilege of fishing there." Case aff'd, 169 N. Y. 60, 72, 61 N. E. 995. See this case also as to riparian own "As riparian owner he has no exclusive right of fishery or of taking ice." "As to shell fish private ownership in public waters may exist and the State may lease privi 14 Arnold v. Mundy, 6 N. J. L. 1, 87, 10 Am. Dec. 366, per Kirkpatrick, C. J., citing 2 Cruise, 29 (73 leges." |