People ex rel. Jenkins v. Duncan

By the Court, Crockett, J.: In Wood v. Truckee Turnpike Company, 24 Cal. 474, it was decided that a franchise to construct a turnpike road and collect tolls thereon is a personal trust reposed in the grantee, and is not assignable either at forced sale or by voluntary conveyance, except with the consent of the granting party. In Monroe v. Thomas, 5 Cal. 470, the same proposition was maintained in respect to a ferry franchise, and the principle [511] was reaffirmed in Thomas v. Armstrong, 7 Cal. 289. Accepting this as a correct exposition of the law, the title of Jenkins to the franchise was not only exempt from execution, but was incapable of being made the subject of a voluntary conveyance by him, except with the consent of the granting power. Waiving any opinion on the point whether a franchise is property exempt from execution, in the.sense of section fourteen of the bankrupt law of the United States, and which, for that reason, would not pass to the assignee, it is obvious that if it is a personal trust, not assignable without the consent of the granting power, the assignee in bankruptcy does not acquire it by virtue of the assignment. He can take nothing which the 'bankrupt could not voluntarily assign, unless it be property previously conveyed by him, in fraud of creditors or of the law. I am, therefore, of opinion that the title of J enkins did not pass to his assignee in bankruptcy. If this were the whole case the defendant would be without title. But it appears from the findings, that after the conveyance from the assignee to the defendant (Duncan), Jenkins acquiesced in the transfer, and not only relinquished all his title, but delivered the possession of the road and its appurtenances to Duncan. Subsequently the Board of Supervisors (from which the franchise was originally obtained) not only assented to the transfer, but expressly authorized Duncan to collect the tolls. Under the authorities already cited, this must be deemed a valid transfer of the franchise by Jenkins, with the consent of the granting power from whom it was originally derived. Judgment reversed, with an order to the Court below to enter judgment for the defendant on the findings. Mr. Justice Temple did not participate in the foregoing decision.