The petition in this case alleged in part: "Said license is not a property tax on real or personal tangible property owned by the association, but is a license fee imposed for the privilege of doing business." The petition shows that the charter was issued by the Federal Home Loan Bank Board under the Home Owners' Loan Act of 1933. The act of 1937 (Ga. L. Ex. Sess. 1937-38, Code (Ann. Supp.) § 16-427) provides that such an association shall not be assessed or subject to taxation "on its franchise, capital, reserves, surplus, loans, shares, oraccounts." (Emphasis added). Each of the above italicized words is a noun and is personal property. State ex rel. Waring v.Georgia Medical Society, 38 Ga. 608 (95 Am. D. 408). "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 *Page 221 be legally exercised without legislative grant." 23 Am. Jur. 715, § 2. "It is the privilege of doing that `which does not belong to the citizens of the country generally by common right' that constitutes the distinguishing feature of a franchise." Ibid.
I cannot see how it can be concluded that the word "franchise" as used in the act in question, and used as a noun, could be construed as being used in a loose or general sense and as meaning license or occupation. If the word "license" or "occupation" was substituted in the act for the word "franchise" the entire meaning of the provision would be changed. The prohibition is against a property tax and if the above words are substituted the meaning is enlarged to include privileges, which are not taxable rights. The Forrester case, cited by the majority, is not controlling. There the word "franchise" was anadjective, and was followed by another adjective which determined its meaning. The word franchise as here used means the primary authority to do business granted by congressional authority and not some secondary and subordinate privilege which could be granted by the City of Griffin. If an individual was so taxed by the City of Griffin for operating a grocery business which he had the right as a citizen to do it would not be a tax on his "franchise" in the true sense of the word. He had no franchise and would be required to have none. The act here refers to associations which cannot operate without "franchises" in the true and strict sense of the word. When it is used in such connection it has a meaning quite different from what it would have if it was used in connection with individuals who were either not permitted to or did not acquire an actual corporate charter franchise. It was held in Macon Ry. Light Co. v.Macon, 136 Ga. 797 (72 S.E. 159) that an agreement that the company's payment of a percentage of the gross receipts of the company would be in lieu of all "license, occupation, or special tax or taxes" did not prevent the collection of a tax on the franchise of the company. Doubt as to the meaning of a tax-exemption statute should be resolved against the exemption. I do not seek to determine whether the legislature should declare such an exemption. I simply say that it has not done so.