59 Fla. 547 | Fla. | 1910
The appellants being denied an accounting for the use of a wharf franchise and an injunction against the further use of the franchise appealed.
A franchise is a special privilege conferred upon individuals or corporations by governmental authority to do something that cannot be done of common right. All franchises belong to the government in trust for its people. Franchises do not become the absolute property of any one, but their use may be granted or permitted by proper governmental authority, subject to supervision and regulation, and upon such terms as may be lawfully imposed. They are permitted to be used for the good of the public, usually for the purpose of rendering an adequate service without unjust discrimination, and for a reasonable compensation. Franchises are not consumed in their use, and when a particular use of them by individuals or corporations ceases by non-use, forfeiture, limitation or otherwise, the further use may be granted or permitted to others. Private rights in franchises are confined to a proper use of them for the general welfare, subject to lawful governmental regulation.
By the Common Law of England, a franchise granted by the sovereign to an individual is regarded as a hereditament, and the franchise, if it survives the grantee, passes to his heirs and not to his personal representatives as general assets for the payment of all debts. Under our system all property rights of a decedent, not exempt by law, are subject to his debts,—the personalty going directly to the administrator, and the realty to the heirs, subject to be taken by the administrator to pay debts (with).
Whether a governmental franchise in this State is to be regarded as realty or personalty, it is a property right and,
The character and extent of the right- granted to individuals and corporations in the use of a franchise depend upon the terms of.the grant,’the nature of the franchise, and the purpose designed to be accomplished. Where the use of a franchise is granted to an individual and his heirs, personal representatives, and assigns, the franchise may be exercised by the heirs or personal representatives of the deceased grantee of the franchise, or by the assignee of the grantee. The right of the grantee in the use of the franchise may not be subject to sale for the payment of the debts of the grantee after his death, if the rights of the public in the use of the franchise are thereby impaired. But the right to the use of the franchise is the property of the. grantee, and its sale for the payment of his de,bts is not forbidden by law where the use continues for. the public good as originally designed by the grant. As between the purchasers at an administrator’s sale of a, franchise and the heirs of a deceased grantee of the franchise, .where the. granting-power interposes no claim and it does not appear that the rights of the public have been injured by the sale of the franchise, the courts will not declare the sale illegal merely because it is of a fran
- The showing made by the allegations of the bill of complaint and the exhibits indicates that the appellants have long delayed in asserting a right to the franchise, even if the sale of it was not authorized. No right of the State is involved here. The sale was in 1867, and the present users
The decree is affirmed.