A franchise to be a corporation, however, is distinct from a franchise to maintain and operate a railway ; -the latter may be mort gaged, without the former, and pass to a purchaser at foreclosure sale ; Memphis & L. R. Co. v. Commissioners,. 112 U. S. 609, 5 Sup. Ct. 299, 28 L. Ed. 837.
The grant of letters patent for an inven tion is said to be a franchise; (1891) 2 Q. B. 263; and so is a charter of incorporation from the state ; State v. Coal' Co., 36 W. Va. 802, 15 S. E. 1000, 17 L. R. A. 385.
To be a franchise, the right possessed must be such as cannot be exercised without the express permission of the sovereign power a privilege or immunity of a public nature which cannot be legally exercised without legislative grant ; State v. Mfg. Co., 40 Minn. 213, 41 N. W. 1020, 3 L. R. A. 510; Dike v. State, 38 Minn. 366, 38 N. W. 95.
In a case already cited it is said that a franchise, or the right to be and act as an artificial body, is vested in the individuals who compose the corporation, and not in the corporation itself ; Fietsam v. Hay, 122 Ill. 293, 13 N. E. 501, 3 Am. St. Rep. 492. "But this," it is said, "is an imperfect statement of the true conclusion,-which is, that a primary franchise, that is to say, the fran chise of being a corporation, vests in the in dividuals who compose the corporation; while those secondary franchises which are vendible by the corporation, necessarily, and for that reason alone, must be deemed to vest in the corporation. However, judicial
theory is so confused on the subject, that proceedings by information in the nature of a quo warranto, to vacate 'the franchises of , corporations, are sometimes brought against the individuals who compose the corporation, and sometimes against the corporation it self." 4 Thomp. Corp. § 5337.
Franchises are only grantable by the sov ereign power, and in the U. S. they are usu ally held by corporations created for the purpose, and can be held only under legisla tive grant ; In re Fay, 15 Pick. (Mass.) 243 ; Chicago City Ry. Co. v. People, 73 Ill. 541; Bank of Augusta v. Earle, 13 Pet. (U. S.) 519, 10 L. Ed. 274;. People v. 'Ins. Co., 15 Johns. (N. Y.) 358, 8 Am. Dec. 243; Spots wood v. Morris, 12 Idaho 360, 85 Pac. 1094,