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wall and was injured. Held, that plaintiff v. Roberts, 108 N. Y. Supp. 894, 895, 124 App. was not an invited guest of the railroad com- Div. 328. pany, but was at most a mere licensee there
An agreement whereby tenants of a store of, as to whom it owed no active duty to building, leased for a plumbing business, allight or rail the wall. Watson v. Manitou lowed a third person to occupy part of it & Pikes Peak Ry. Co., 92 Pac. 17, 19, 41 Colo. in conducting an electrical supply business, 138, 17 L. R. A. (N. S.) 916.
was a "lease,” though called a "license" by An implied “invitation" to use danger- them. Denecke v. Henry F. Miller & Son, ous premises, as distinguished from a mere | 119 N. W. 380, 384, 142 Iowa, 486, 19 Ann. "license,” arises when a benefit accrues to the Cas. 949. owner from such use, or when the use is in the interest of both parties, or is connected tracted to "let,” and plaintiff to "take,” the
An instrument by which defendant conwith the owner's business. Cleveland, C., C. right to maintain, at a & St. L. R. Co. v. Powers, 88 N. E. 1073, stands for sale of candies, said right being
race park, three 1077, 173 Ind. 105.
exclusive for said business within said park, Lease distinguished
also the storeroom under the tracks, and one The difference between a license and a of said stands, not to exceed a certain size, lease is that a lease gives to the tenant the to be in the main pavilion, and providing the right of possession against the world, while a period of "letting," and the amount and license creates no interest in the land, but times of payment of the "rent," instead of is simply the authority or power to use it in being a "license,” is a "lease," affecting desome specific way. Joplin Supply Co. v. fendant in the exclusive use of the land, so West, 130 S. W. 156, 161, 149 Mo. App. 78. that plaintiff, having paid the rent, can reA license in respect to real estate is an
cover no part of it, though the park is deauthority to do a particular act or series of stroyed by fire before the end of the period acts on the land of another without possess- of letting. Mehlman v. Atlantic Amusement ing an estate therein. The test to determine Co., 119 N. Y. Supp. 222, 223, 65 Misc. Rep. 25. whether an agreement for the use of real es- A contract to let to plaintiffs the exclutate is a license or a lease is whether the con- sive news, confectionery, view, and checking tract gives exclusive use of the premises privileges on defendant's steamers for certain against all the world, including the owner, specified seasons, though denominated a in which case it is a lease, or whether it lease, was not a "lease," but a "license.” merely confers a privilege to occupy under Nash v. Thousand Island Steamboat Co., 108 the owner, in which case it is a license, the N. Y. Supp. 336, 342, 123 App. Div. 148. question to be determined by a construction of the instrument. Shaw v. Caldwell, 115
An instrument granting, demising, and l'ac. 941, 943, 16 Cal. App. 1.
leasing certain land for the purpose solely of
mining and operating for oil, gas, and other The test to determine whether an agree- minerals, laying pipe lines, building tanks, ment for the use of real estate is a "lease" and structures to take care of the products or a “license" is whether the contract gives is a lease conveying an interest in the land, exclusive possession of the premises against and not merely a "license" to enter and opthe world, including the owner, in which case erate for oil or gas. Barnsdall v. Bradford it is a lease, or whether it merely confers a
Gas Co., 74 Atl. 207, 225 Pa. 338, 26 L. R. A. license to occupy under the owner. An in- (N. S.) 614. strument by which the owner of premises let to defendant "his ice business and privileg
An instrument by which the owner of with the use and benefit of land therein described grants to another all his icehouses," for a term ending on a cer- the gas and oil under it, with the exclusive tain date, gave defendant the exclusive pos- right to enter thereon at all times to drill session of, and the entire beneficial interest and operate for oil or gas, etc., and provides in, the icehouses and the land under them, for the time within which the various wells so as to constitute a lease of the premises, shall be completed, with a stipulated monthinstead of a mere contract for their use as ly rental for each well not finished on time, licensee under the owner. Roberts v. Lynn and that each location shall consist of ten Ice Co., 73 N. E. 523, 524, 187 Mass. 402.
acres more or less, and that no well shall ocA contract whereby it was agreed that cupy more than one acre is not a “lease,” as plaintiff should have the exclusive privilege
leases are usually understood, but a mere of the public stenographer's office in a cer- grant of an exclusive right to enter and extain hotel, plaintiff agreeing to pay the rent plore for oil and gas, and prosecute such promptly each month in advance for the ex
business, occupying no more land than is clusive privilege of the public stenographer's
needed for that purpose, not more than one office, and to do private correspondence for acre to a well. Stahl v. Ilinois Oil Co., 90 the hotel management, and to furnish compe
N. E. 632, 633, 45 Ind. App. 211. tent stenographers for this service, was not A contract simply giving a right to take a lease, but a mere agreement to allow plain- ore from a mine, no estate being granted, tiff to carry on business in the hotel. Hess confers a mere "license," and licensee ac
quires no right to the ore until separated "The popular understanding of the word from the freehold; but an instrument de license' undoubtedly is a permission to do mising land for mining purposes, for a des- something which, without the license, would ignated term of years, at a fixed rent, and not be allowable. The object of the license giving the right to erect all necessary build- is to confer a right that does not exist withings, is a "lease." not merely a mining “li- out the license.” Commonwealth v. Central cense." Barnsdall v. Bradford Gas Co., 74 Hotel Co., 90 S. W. 565, 121 Ky. 846, 12 Ann. Atl. 207, 208, 225 Pa. 338, 26 L. R. A. (N. S.) Cas. 172 (quoting and adopting definition in 614.
Standard Oil Co. v. Commonwealth, 82 S. W. As office
1021, 119 Ky. 75). See Office.
A "license" is a mere permit to do some
thing that without it would be unlawful. As a revocable authority
Littleton V. Burgess, 82 Pac. 864, 866, 14 A "license" is a mere authority to use Wyo. 173, 2 L. R. A. (N. S.) 631. real property, and hence is revocable. United Merchants' Realty & Improvement Co. v.
A "license" confers the right to do that American Billposting Co., 128 N. Y. Supp. which, without the license, would be unlaw666, 667, 71 Misc. Rep. 457.
ful. Board of Com'rs of Jefferson County v.
Mayr, 74 Pac. 458, 31 Colo. 173 (citing People A deed whereby, for value, one grants v. Raims, 39 Pac. 341, 20 Colo. 489); the right to lay pipes to convey petroleum, Schwartz v. People, 104 Pac. 92, 103, 46 Colo. together with all rights and privileges neces- 239 (quoting and adopting definition in Peosary to the enjoyment of the grant and to ple v. Raims, 39 Pac. 341, 20 Colo. 489). the removal of the pipes, the pipes to be laid
"The word 'license' means permission or within ten feet of the line of the grantor's property, does not grant a "license" which authority, and a license to do any particular may be revoked at the grantor's will. Stand- thing is a permission or authority to do that ard Oil Co. v. Buchi, 66 Atl. 427, 429, 72 N. J. thing, and, if granted by a person having Eq. 492.
power to grant it, transfers to the grantee
the right to do whatever it purports to auPatents
thorize. A grant of any interest in or right un- rights which the grantor can transfer to do
It certainly transfers to him all der a patent, less than the exclusive rights what is in the terms of the license.” Ryas to making, using, and vending the same,
man Steamboat Line v. Commonwealth, 101 is a license.” Paulus v. M. M. Buck Mfg. S. W. 403, 404, 125 Ky. 253, 10 L R. A. (N. Co., 129 Fed. 594-596, 64 C. C. A. 162.
S.) 1187 (citing Gibbons v. Ogden, 9 Wheat. Same-Assignment distinguished [22 U. S.] 1, 6 L. Ed. 23). A conveyance by a patentee to another
The law dictionary and lexicographers of the sole and exclusive right and license to use and to build for use within territory de- concur in saying that a "license” is a "perscribed the machines of the patent, with cer- mit” to do a certain thing, and it is clear tain express exceptions, and also reserving the act in Sess. Laws 1895, p. 221, c. 96, giv
that these words are used synonymously in to the patentee the right to build machines in said territory for use outside thereof, is a the sale of liquor and grant “permits” to drug
ing municipal corporations power to "license" mere "license,” and not an "assignment.” Bowers v. Atlantic, Gulf & Pacific Co., 162 gists for the sale of liquor for medicinal uses, Fed. 895, 902.
and the contention that the license to sell liq
uors and the permit were distinct things was A patent secures the exclusive right to untenable. Parsons v. People, 76 Pac. 666, make, use, and vend the invention it pro- 669, 32 Colo. 221. tects. A grant of all these exclusive rights throughout the United States or a specified
A "license". is a privilege granted by the part thereof is an assignment of an interest state directly or indirectly through the muin the patent by whatever name it is desig- nicipality usually upon payment of the connated. A grant of any interest in or right sideration, and confers authority to do some under a patent, less than these, is a "license." thing which would be illegal if done without Paulus v. M. M. Buck Mfg. Co., 129 Fed. 594,
a license. License fees may be imposed for 596, 64 C. C. A. 162.
regulation, revenue, or prohibition. Metropo
lis Theater Co. v. City of Chicago, 92 N. E. LICENSE (Governmental Regulation) 597, 599, 246 Ill. 20. See Sale Without a License.
"Power to 'license,' conferred on a muApplication for as civil action, see Civil
nicipality, is generally understood to mean Action-Case--Suit-etc. Licenses of all kinds, see All.
power to regulate by prescribing the condi
tions or compliance with which the thing Order granting license as judgment, see Judgment.
shall be permitted.” Village of St. Anthony Renewal license, see Renewal.
v. Brandon, 77 Pac. 322, 325, 10 Idaho, 205 Requiring license to sell liquor as taking
(quoting Cent. Dict.). property, see Taking (In Eminent Do- "A license' is a permit to do business main).
paid for in advance, and, in the nature of things, all questions pertaining to its issu- | paid for permission to erect or maintain poles ance should be determined before the privi- in the streets and alleys of the city, for the lege is exercised and as early in the current purpose of defraying the expenses of regutax year as is practicable. Like an assess-lating and controlling the use of the same ment, a license apportionment once made and under the police power of the city. City of returned cannot be changed without express Ft. Smith v. Hunt, 82 S. W. 163, 165, 72 Ark. legislative authority.” A social club is not 556, 66 L. R. A. 238, 105 Am. St. Rep. 51. subject to license taxation, except in so far
An ordinance, requiring a fee to be paid as it engages in the sale of intoxicating liq. by milk and meat dealers to the inspector of uors to its members. Where such club has milk and meats solely to defray the cost of for five successive years paid license taxes inspection, is not in the nature of a “license" based on sworn returns, which were accepted as that word is used in Acts 1911, p. 347, § 1, as correct by the taxing officers, no action making it unlawful for any city council to will lie in behalf of the state to recover addi- impose a tax or license upon any person in tional license taxes for the same year. State the selling of any farm products including v. New Orleans Chess, Checkers & Whist meats; the statute being intended to proClub, 40 South. 526, 528, 116 La. 46.
hibit the issuance of a license as a condition A tax on the net receipts of an insur- to carrying on the business. Carpenter V. ance company is not a "license” to do busi- City of Little Rock, 142 s. W. 162, 164, 101 ness. People v. Cosmopolitan Fire Ins. Co., | Ark. 238. 92 N. E. 922, 927, 246 Ill. 442.
Acts 1905, p. 253, c. 129, authorizing any A "license to practice medicine" is a priv- city to tax, license, or regulate junk stores, ilege or franchise granted by the government, etc., authorizes the enactment of ordinances and a refusal to grant such franchise, what-regulating the general business of junk dealever the reason may be for such refusal, does ers, and not merely the places where junk not constitute a penalty. Morse v. State is dealt in, in view of the purposes of the act Board of Medical Examiners, 122 S. W. 446, and the granting of authority to license; a 448, 57 Tex. Civ. App. 93.
"license" being a privilege granted to a perA "license" to sell intoxicating liquors son, and not to an inanimate object, to puris the authority of the state to carry on the sue some occupation or exercise some right business, and Act March 21, 1906, making it declared unlawful, except upon compliance unlawful for any person to bring into any with such conditions. Grossman v. City of county, etc., where the sale of intoxicating Indianapolis, SS N. E. 943, 947, 173 Ind. 157. liquors is prohibited, or may be prohibited, The $2 on each $100 of premiums paid by any intoxicating liquors, does not apply to foreign insurance companies doing business liquor destined for one whose "license” to in the state, which is required to be paid insell liquor has not expired. Sheehan v. to the state treasury, is no part of the 22 Louisville & N. R. Co., 101 S. W. 380, 381, 125 cents on each $100 valuation of property or Ky. 478.
corporate franchises directed to be assessed Act March 12, 1909 (100 Ohio Laws, p. for taxation for the school fund by Ky. St. 89), providing that no person shall engage in 1903, § 4370, subd. 5, nor is it a "fine," "forthe sale of intoxicating liquors without hav- feiture," or "license,” within subdivision 6, ing properly answered certain specified ques- providing that a portion of such revenues be tions, was not objectionable as thereby li- paid into the school fund. Fuqua v. Hager, censing those who answered the questions 84 S. W. 325, 119 Ky. 407. correctly in violation of Const. Schedule, s The word "licenses," as used in the Illi18, providing that no license to traffic in in- nois act relating to the Chicago City Railtoxicating liquors shall be granted in the ways, and providing that any deeds of transstate, but that the General Assembly may by fers of rights, privileges, or franchises belaw provide against the evils resulting there-tween railway corporations, or any two of from; the term "license” as so used mean them, and all contracts, stipulations, licenses, ing permission to do something which with- and undertakings made, entered into, or girout the license would not be allowed, to en, and as made or amended by and between confer a right that did not exist without it, the common council of the city and any one the granting of a special privilege to one or or more of the railway corporations respectmore persons not enjoyed by citizens gener-ing the location, use, or exclusion of railally, or the class to which the license belongs. ways in or upon the streets, or any of them, Bloomfield v. State, 99 N. E. 309, 310, 86 Ohio of the city, etc., refers to the designation by St. 253, 41 L. R. A. (N. S.) 726, Ann. Cas. the council of the streets to be occupied by 1913D, 629 (citing 5 Words and Phrases, p. the companies. Govin v. City of Chicago, 132 4133).
Fed. 848, 857. The word “license," as used in an ordi- Where a city ordinance regulating autonance requiring every person and corpora- | mobiles required registration and numbering tion erecting and using poles on the public thereof at a cost to the owner of $1 to cover streets of a city to pay as a license therefor the value of figures furnished by the city to a certain sum for each pole, means the sum form the number, such provisions are not ob
jectionable as a "license"; it being at most act should not authorize the licensing of the a mere means of regulation and not a license sale of intoxicating liquors. Fitzpatrick v. for revenue. The court said: "If the provi- Weaver, 111 N. W. 163, 164, 147 Mich. 382. sion for registration and numbering, which
As & contract involved no discrimination, and requires the
See Contract. payment of nothing more than is necessary to pay for the number which the municipality
As written document furnishes, can be regarded as a license (for The word "license,” in Gen. St. 1902, tit. conflicting definitions of 'license,' see Cooley, 16, entitled “Intoxicating Liquors,” providing Tax. [3d Ed.] p. 1137; Adler v. Whitbeck, 9 for the issuance of liquor licenses, and proN. E. 672, 44 Ohio St. 539) it is not a license hibiting the sale of liquor without a license, for the purpose of raising revenue. If it etc., signifies an intangible right granted to were, it might well be contended that it did the licensee and signifies the writing signed not pass as an incident to the power to regu- by the county commissioners, which is the inlate. See Cooley, Tax. (30 Ed.) p. 1141; The strument, and evidence of that grant, but the Laundry License Case, 22 Fed. 703. It is a grant of such right can only be had by writlicense (if a license at all) as a mere means ing signed by the county commissioners in of regulation; indeed, we might say, as al- which the town and the particular building ready shown, as a necessary means of regu- in which the sales licensed are to be made lation. This proposition is self-evident, viz., and person who is licensed to make them, as that the grant of authority to accomplish a provided by sections 2669, 2672, 2675. Concertain purpose carries with it authority to necticut Breweries Co. v. Murphy, 70 Atl. 450, use any proper and lawful means without 452, 81 Conn. 145. which that purpose cannot be accomplished.
The word "license," as used in Act March If, therefore, the speed of automobiles can. 11, 1903, relating to the appropriation of pubnot be effectually regulated without licensing lic waters, and regulating the issuance of a them, the grant of the power to regulate con- certificate and license after inspection by the fers upon the city power to license, unless state engineer, applies to the paper to be issome other provision of law forbids the ex- sued on proof of application to beneficial use ercise of that power.” People v. Schneider, of the waters. Idaho Power & Transporta103 N. W. 172, 173, 139 Mich. 673, 69 L. R. A. tion Co. v. Stephenson, 101 Pac. 821, 823, 16 345, 5 Ann. Cas. 790.
Idaho, 418. Buffalo City Charter (Laws 1891, p. 137, The word "license," in Acts 1905, p. 492, C. 103, $ 17, subd. 6, as amended by Laws 8 1, providing that no person shall be eligible 1904, p. 83, c. 31), empowering the city to en-to the office of county superintendent of act an ordinance imposing a “tax" on auto schools unless he shall hold a 36 months' limobiles "for the privilege" of operating the cense, a 60 months' license, a life or professame on its streets, and to prohibit such use sional license to teach in the schools of the in case of nonpayment of the tax, and to state, means the written document by which provide a penalty for violation of the ordi- permission or authority has been granted to nance, is repealed by a later act, the Motor the holder thereof to teach in the common Vehicle Law (Laws 1904, p. 1316, c. 538, 8 4,1 schools for the period of time required by subd. 4), providing that the city shall have the act, and such a document, in the absence no power to pass, maintain, or enforce ordi- of fraud affecting it, is conclusive evidence nances requiring from owners of automobiles that the person to whom it is issued has the "licenses" or permits to use the streets, or legal qualifications of a teacher, State ex prohibiting them from the free use thereof; a rel. Benham v. Bradt, 84 N. E. 1084, 1087, 170 tax for the privilege of operating automobiles Ind. 480 (citing Elmore v. Overton, 4 N. E. on the streets being but a license. City of 197, 104 Ind. 548, 54 Am. St. Rep. 343). Buffalo v. Lewis, 108 N. Y. Supp. 450, 123
As lawful act App. Div. 163.
A "license" to carry on a business or A city ordinance provided that it should trade has been defined to be an official perbe unlawful for any person to keep any sa-mit to carry on the same, or perform other loon where intoxicating liquors were sold or acts forbidden by law except to persons obdrunk as a beverage without first paying a li- taining such permit. Bouvier's Law Dictioncense fee of $300 per annum, and that the ary. City of Savannah v. Cooper, 63 S. E. city treasurer, on payment of the fee, should 138, 140, 131 Ga. 670. give a receipt for the amount paid, which should constitute a license for the keeping of
Franchise distinguished a saloon. Held, that the ordinance applied
Permission given by a city ordinance for only to saloons where intoxicating liquors the exercise of a corporate franchise within were sold, and hence was an attempt to "li- the city is a "license” and not a franchise. cense" the sale of such liquors contrary to People ex rel. Fitzhenry v. Union Gas & ElecComp. Laws 1897, § 3107, giving such city au-tric Co., 98 N. E. 768, 771, 254 Ill. 395. thority to license all taverns and houses of The right to construct a street railway public entertainment, saloons, restaurants, within any municipality comes from the and eating houses, but providing that such state as a “franchise,” while the power to consent and designate the streets to be occu-, to be a grant from the state to a corporation pied comes from the municipality as a "li- of authority to occupy the city streets, “license” or contract right. Potter v. Calumet censes" to be the designation by the city Electric St. R. Co., 158 Fed. 521, 527 (citing council of the streets to be occupied, and Chicago City Ry. Co. v. People ex rel. Story, "contracts" the stipulated arrangements be73 Ill. 541).
tween the companies and the city as to the
State on Inf. of Jones A gas "franchise” is property, a vested manner of occupancy. right protected by the Constitution, while a
v. West End Light & Power Co., 152 S. W. "license” is a mere personal privilege, and 67, 75, 246 Mo. 618. revocable, except in rare instances and under Invalid license peculiar conditions. Elizabeth City v. Banks, A dramshop license issued without com64 S. E. 189, 192, 150 N. C. 407, 22 L. R. A. pliance with an ordinance, requiring the ap(N. S.) 925.
plication to be signed by a majority of the A "franchise” is a privilege which eman- property owners according to frontage on both ates from the sovereign power of the state or sides of the street in the block where the government. A power conferred upon a rail- dramshop is to þe kept, or by a majority of road company by ordinance to locate and the bona fide householders and persons or maintain a railroad in the streets of a city firms living in or doing business on each side is a "license,” which, after the road is built, of the street in the block on which the drammay be irrevocable, but such ordinance does shop has its entrance, is invalid, and a dramnot create or confer on the railroad company shop, operated under such a license is “operconstructing the railroad in the street a ated without a license" within Hurd's Rev. "franchise.” The “license" granted by the or- St. 1909, c. 43, § 7, providing that an unlidinance is no more a “franchise” than would censed dramshop shall be a nuisance. Hoyt be a grant of right of way by a private citi-v. McLaughlin, 93 N. E. 461, 467, 250 ml. 442. zen to the company to construct its road over As a personal trust or privilege his lands, and it is as competent for the city
A license is a grant of special privilege as for a private owner to extend the time to one or more persons, not enjoyed by citiof performance or to amend, modify, or annul zens generally, or, at least, not enjoyed by a the contract by mutual agreement. City of class of citizens to which the licensee belongs, Chicago v. Rothschild & Co., 72 N. E. 698, 699, and grants a permission to do something 212 Ill. 590 (citing Chicago City Ry. Co. v. which, without a license, is not allowable. People ex rel. Story, 73 Ill. 541, 547; Metro- State v. Parker Distilling Co., 139 S. W 453, politan City Ry. Co. v. Chicago, W. D. Ry. 466, 236 Mo. 219, 237 Mo. 103 (quoting 5 Co., 87 111. 317; Board of Trade of Chicago Words and Phrases, p. 4137). v. People ex rel. Sturges, 91 Ill. 80; Mills v. Parlin, 106 Ill. 60; Chicago Municipal Gas
"A ‘license to deal in intoxicating liquors light & Fuel Co. v. Town of Lake, 22 N. E. is in the nature of a personal trust, and the 616, 130 111. 42; City of Belleville v. Citizens' applicant for such privilege must be a perHorse Ry. Co., 38 N. E. 584, 152 111. 171, 26 son able, willing, and competent to carry out L. R. A. 681 ; People ex rel. City of Pontiac such trust, and not delegate it entirely to v. Central Union Tel. Co., 61 N. E. 428, 192 others, whose character may not be such as Ill. 307, 85 Am. St. Rep. 338; Rostad v. Chi- the law requires of the licensee.” In re cago Suburban Water & Light Co., 71 N. E. Krug, 101 N. W. 242, 244, 72 Neb. 576 (quot978, 211 Ill. 248; Davis v. Mayor, etc., of ing and adopting definition in Watkins v. City of New York, 14 N. Y. 506, 67 Am. Dec. Grieser, 66 Pac. 332, 11 Okl. 302). 186; Bank of Augusta v. Earle, 13 Pet. [38
A "license" for the sale of liquor is but U. S.] 579, 10 L. Ed. 274; City of Bridgeport a personal privilege and not assignable exv. New York & N. H. R. Co., 36 Conn. 255, 4 cept as authorized by the Legislature and in Am. Rep. 63; Morgan v. Louisiana, 93 u. the mode therein prescribed. Though a trusS. 217, 23 L. Ed. 860).
tee in bankruptcy cannot sell a retail liquor
license issued to a bankrupt, he can sell the A right not essential to the general pur- unexpired lease of licensed saloon with pose of a grantee, and such that a private the furniture and fixtures, on condition that party might grant over his property, such as the license shall be transferred to the purà revocable permission to occupy a portion chaser by the license court, and, where the of some public ground, highway, or street, purchaser abandons his purchase without any is a "license,” and not a franchise. McPhee
attempt to secure a transfer of the license, & McGinnity Co. v. Union Pac. R. Co., 158 he is liable for loss on resale. Snyder v. Fed. 5, 10, 87 C. C. A. 619.
Bougher, 63 Atl. 893, 894, 214 Pa. 453 (citing The grant by a municipality of a fran- in support of definition, Blumenthal's Petichise to use its streets is the exercise by tion, 18 Atl. 395, 125 Pa. 412). delegation of a power which resides in the A "license" to sell intoxicating liquor is state, and which is by its nature governmen- a personal privilege, which may be valuable tal; hence, if grounds for forfeiture arise, as property, in a certain sense, for the perthe state may alone enforce it, and may sonal use of the holder, but which is not asalone waive it; for a franchise may be said signable or transferable by him in any way.