The position of the plaintiffs seems to be that the determination of the presence of a security is so intertwined with the merits that decision on jurisdiction must be deferred until the case is heard on its merits. In that case plaintiffs claimed that certain shares of stock were never the property of the United States and were wrongfully withheld by the defendants in excess of their authority as public officers. Defendants asserted that jurisdiction was absent because the suit was in fact against the United States. The question whether the property belonged to the United States was determinative of both jurisdiction and the merits. In the instant case determination of jurisdiction is not determinative of the merits.
Plaintiffs rely on cases distinguishable from that at bar.
1262, presented a situation in which the tasks of the licensees were purely mechanical and ministerial. 1249 involved a sale and lease of a restaurant rather than a franchise. A number of decisions hold that a franchise is not a security. No single determinative test or standard emerges from these decisions. Each case is decided on its particular facts.