City of Griffin v. First Fed. Svgs. C. Co. , 80 Ga. App. 217 ( 1949 )

In addition to the reasons stated in the dissenting opinion of Judge Felton, I am of the opinion that the judgment should be reversed for the following reasons. The word "franchise" has been so variously defined and its use by the various legislatures has been so loose and inaccurate that it would seem that the word now defies accurate, concrete definition, but this variety of definition should not serve as a handicap in construing and interpreting individual enactments. The word is simply to be given the obvious connotation intended by the legislative body in each individual enactment. Franchise is, however, generally (and this will bear upon its meaning in the individual enactment since words are to be given their general and ordinary meaning in construing enactments) defined as "a political or constitutional right reserved to or vested in the people, as the right of suffrage," the elective franchise. It has also been defined as "a special privilege emanating from the government by a legislative or royal grant, and vested in an individual person or in a body politic or corporate." A franchise is only, as a rule, grantable by the sovereign power. There are instances, of course, where the sovereign power may delegate this power of grant to subordinate branches. In its accurate sense franchise is not to be loosely used and confused with license. As distinguished by the North Carolina Supreme Court, "Franchise is property, intangible, it is true, but nonetheless property — a vested right, protected by the Constitution — while a license is a mere personal privilege, and, except in rare instances and under peculiar conditions, revocable." Elizabeth City v. Banks, 150 N.C. 407, 415 (64 S.E. 189). We think that it might also be said that the franchise is the right while the license is the exercise of that right. Thus one may have a corporate franchise to do business in this State, but when he exercises that right the State has a right to tax that exercise of the right, that is, place upon the exercise of that right a license tax. One has an inviolable right to own property in this State, but the State has a right to tax it. In the instant case for the right to do business in this State as a building and loan association under Code (Ann. Supp.) § 16-416, the association must pay to the Secretary of State at the time of filing its annual report to the Secretary a certain fee, based upon the valuation of its assets. This is in the nature of a tax upon the franchise, but it is not in the nature of a license or a tax on the exercise of the right to do business. Code § 92-2304, is in the nature of a tax on franchises.