FRANC RISE. A special privilege confer red by government on individuals, and which does not belong to the citizens of the country generally by common right. Ang. & A. Corp. § 4; Abbott v. Refining Co., 4 Neb. 416, 420.
A certain privilege conferred by grant from government and vested in individuals. 3 Kent 458.
A royal privilege or branch of the king's prerogative subsisting in the hands of a sub ject. Finch i. 164 ; 2 Bla. Com. 37; 3 Cruise, Dig. 278; Bank of Augusta v. Earle, 13 Pet. (U. S.) 595, 10 L. Ed. 274; State v. Coal Co., 36 W. Va. 802, 15 S. E. 1000, 17 L. R. A. 865.
Maitland (Domesday and Beyond 43) finds in the history of early English tenures a universality of oppressive services which literally made life a bur den to the average land-holder, considers the first use of the terms "liberty" and "franchise" to be an expression of the relief of the possessor froth some part of this burden. He says: "Lastly in pur thirteenth century we learn that privileges and ex ceptional Immunities are 'liberties' and What is our definition of a liberty, a franchise? A portion of royal power in the hands of a subject. In Henry M.'s day we do not say that the Earl of Chester is a freer man, more of a 7,iber home, than Is the Earl of Gloucester, but we do say that he has more, greater, higher liberties." The right or privilege of being a corpora tion, and of doing such things, and such things only, as are authorized by the corpo ration's charter. Fietsam v. Hay, 122 Ill. 293, 13 N. E. 501, 3 Am. St. Rep. 492.
"The word franchise is generally used to designate a right or privilege conferred by law. What is called 'the franchise of form ing a corporation,' is really but an exemp tion from the general rule of the common law prohibiting the formation of corpora tions. The right of forming a corporation, and of acting in a corporate capacity under the general incorporation laws, can be called a franchise only in the sense in which the right of forming a limited partnership, or of executing a conveyance of land by deed is a franchise." Horton, C. J., in State v. Canal Co., 40 Kan. 96, 19 Pac. 349, 10 Am. St. Rep. 166.
It is a privilege emanating from the sover eign power of the state, owing its existence to a grant or, as at common law, to prescrip tion, which presupposes a grant, and vested in individuals or a body politic something not belonging to the citizen of common right.
Hazelton Boiler Co. v. Boiler Co., 137 Ill. 231, 28 N. E. 248.
Commenting on Blackstone's definition, Thompson says: "It has been well observed that, under our American systems of govern ment and laws, this definition is not strictly correct ; since our franchises spring from contracts between the sovereign power and private citizens, made upon a valuable con sideration, for purposes of public benefit as well as of individual advantage." 4 Thomp. Corp. § 5335.
There are two franchises, distinct in their nature, and yet governed by substantially the same rules' as to grant and exercise, which may be enjoyed by a corporation. One is the franchise of being or existing as a corporation, that is, possessing a unity and continuity of existence, though composed of an aggregate of changing members ; the other is the exercise of rights, like the right of eminent domain or the partial appropria tion of public property by exclusive use, as in ferries. Either of these franchises is a branch of sovereignty. 1 Bouv. Inst. 1690; Adams Exp. Co. v. Ohio State Auditor, 166 U. S. 185, 17 Sup. Ct. 604, 41 L. Ed. 965.
"Franchise" means the right of a corpo ration to exist as such, which right does not partake of the incidents of property, and it also means the right of an existing corpora tion to carry on a particular enterprise, which right is property ; Blackrock Copper Min. & Mill. Co. v. Tingey, 34 Utah 369. 98.
Pac. 180, 28 L. R. A. (N. S.) 255, 131 Am. St. Rep. 850.
"Corporate franchises are legal estates vested in the corporation itself as soon as it is in ease. They are not naked powers granted to the corporation, but powers cou pled with an interest which vest in the cor poration, upon the possession of its fran chise, and whatever may be thought of the corporators, it cannot be denied that the cor poration itself has a legal interest in such franchise." Society for Savings v. Coite, 6 Wall. (U. S.) 594, 606, 18 L. Ed. 897.