CITY OF ClIICAGO.
ALLERTONV. CITY OF CHICAGO and another.
(Circuit Court, No D.lllinoi8. December 10, 1880.)
1. MUNICIPAL CORPORATION-STREET RAILWAy-,-POWER TO LICENSE.
A general law of the state of Illinois, (1872,) for the incorporation ot cities and villages in the state, provided that the city council in cities should have authority to license hackmen, draymen, omnibus drivers; cabmen, expressmen, and all others pursuing like occupations, and to prescribe their compensation. Held, that street railways were within the purview of such statute.
2. SAME-POLICE POWER.
An ordinance of the council of the city of Chicago (March 18, 1878) . required each street railway company within the city to obtain an annual license, and to'pay for the same the sum of $50 for each car operated and run upon its line. Held, that such ordinance waa a valid exercise of the police power of the city council.-[ED.
In Equity. . Hitchcock,Dupee cl Judah, E. A. smaU, O. Beckwith, and Goudy, Ohandler cl Skinner,' fbr plttintiff. R. S. Tuthill and A. S. Bradle'l/;£or City of Chicago. DRUMMOND, C. J. On Match 1s, 1878, the council of the city of Chicago passed an ordinance requiring the oompanies which opera.ted street cars for the conveyance of passengers upon any lines of horse city railway within the city of Chi. ca:go to obtain a license hi the month' of April of each year, and, pay for the sQ.me the sum of $50 for each car operated or run. A penalty was imposed for failing or refusing to take 'out a license. The company obtaining the license was required to place con'spicnously iIi every car so operated and run in the city a certificate signed by the city clerk, and giviug the number of the car, and stating that a license had been obtained, and that the necessary fee had been paid;' and a penalty was alBo imposed for a failure to post or keep such certificate in the <lar. The only question in the case, which arises' on a demur. rer to the bill of complaint filed by a stock?older of city railway company to enjoi'n the :pa.ymeIit of the license fee, is whether this ordinance was valid. Several corporations operating street cars in the city of Chicago have been au-
thorized to construct their railways, and operate them, by various Qrdinances which have been from time to time passed; and these ordinances have been recognized and affirmed, many of them, by the legislature of the state. By virtue of these ordinances and acts of the legislature the companies have the right to run their cars for the transit of passengers through the city. It cannot be said, therefore, that the effect of ordinance which has been specially referred to, although it is called a license, would be to give the companies the privilege of running their cars. That they have by virtue of the ordinance and the acts of the , There can be no -doubt that the legislature wO,uld M've the right, under the constitution of 1848, which was.in when the franchise was granted, to tax the corporationsfoi' the use of their fra.nchise; that is, a tax which is entirely independent of the value of the cars, tracks, and other tangible property of the corporaso by constitutions of 1848 and 1870. But there are many difficultieswitb tbisbranch of the sub· ject. Tbere are certain Qo.qditipns required by the constitut:ution"af 1870 as prerequisitei tOr: the imposition of a tax:'of legislature has authorized the, city to impollethe tax, ,and I therefore, witaout giving. apinionupoo. that part of the case, prefer toplaCe my decisiOn upon and to sustain the ordinaJ,lce as arl;lgulation, of :the police pOWer of the city. This is a suhsisting power,wbich, it is generally held, canno.t be transferred by t4e city, but is inherentin its .municipal organization. There can be no controversy about the power of the city over many things connected with the operationaf the city railway. Admitting that because of the price of, fare agreed upon there can be no change in that, yet, by of its police power, the city can, to a great extent, regulate the, running of the cars, presoribe rules and lawR as to speed, stoppage, and other things connected with the operation of the railway. This has not been questioned by the counsel of the plaintiff; but it is claimed this cannot be considered a police regulation, because it is manifestly the exercise of the taxing power of the city. It is argued
ALLERTON V. CITY OF CmCAGO.
that the price of the license is so large that the intent is It is very difficult to lay down Rny absolute rule upon this subject, and to hold that a particular sum may be within the police power of the city, and another sum beyond the power, and a mere tax. By the general law of 1872, for the incorporation of cities and villages in this state, it is provided that the city council in cities shall have authority to license hackmen, draymen, omnibus drivers, cabmen, expressmen, and all others pur. suing like occupations, and to prescribe their compensation. This was obviously intended as conferring a police power upon the city council in relation'to the various classes named in the statute. This is apowel' that has been uniformly ex· .ercised, and, construing the statute literally,cannotweH be questioned. But it is claimed'it does not lneludethe street riLilway, because it is not pursuing an occu.pationlike, any of those named. Omnibuses may be licensed.' They inay pass over even thestitnestteetsas those occupied by the' horse railways, and they 'passengers in' the same .manner. "Theot1Iy distinction which can be called' substantial between the twb' 6IasseEl 'of occupation is that one carriage .igoesupon' iron rails, in a regular track, with 'Wheels, 'and goes with wheels upon the ordinary street ''Way. : The Ellipretne court of Pennsylvania: iba;sheld street-railway carnages are ofa like nature asoninibuses, and there can be no doubt, I think, of ·the right of the city to demand it license frolD 'all dmnibusdrivets, and to include every omnibus which may belong to a partieular company or corporation; and to requite the payment of a license for such omnibus that may be so owned and used. The court of appeals of New York, in the case of Mayar v. Second Avenue R. 32 N. Y. 261, held that an ordinance of the city of New York, in many respects like this, was invalid, as an attempt, through color of a license, to'impose a tax upon the railroad company, refusing to treat it as an exeroise of. the police power of the city. The price charg13d in that bse for the license was the same as in this.
In the case of Frankfort If :Pfi,iladelphia Passen,qe1' Co. v. City oj Philxulelphia, 58 Po.. St. 119, where the license fee was the sama, anq Johnson v. PMladelphia, 60 Po.. St. 445, the supreme court of Pennsylvania took a different view of such an ordinance, and treated it as a police regulation merely; and such seems to be the view of the supreme court of this state in the case of the Chicago Packing et Provision Co. v.Oity oj Chicago, 88 Ill. 221. In the case of Frankfort If Philadelphia Passenger Co. v. City oj Philadelphia, the city ()btained its power to impose the license fJ,'om a statute substantially similar to that under which the city of Chicago claims the power in this ()ase. In that case the act of the legislature declared that the city council of Philadelphiasbould have authority to provide for the proper regulation of omnibuses, or vehicles in the nature thereof, and to thi,s end "it shall be lawful for the council to provide for the issuing of licenses to such and so many persons as may apply to keep and use omnibuses, or vehicles in the nature thereof, and to charge a reasonable annual or other sum therefor." In that statute the words "vehicles in the nature thereof," in this the words "pursuing occu· pation," are used. I cannot Bee that there is any substantial distinction in respect between the twv statutes. In the case of 88 IllInois,alrealiy referred to, the corporation was organized and doing bl1siness under the laws of this state. A question arose in that case as to the power of the city to issue a li()ense. It was denied in the argument of the that the power existed, but the supreme court held that, under the power "to regulate the management"of the business, the city had. the right to issue a license and to prescribe the compensation. That was also under the same law-the 3t(lt of 1872-whioh conferredpowor uppn cities to grant licenses omnibus drivers, and, all others pursuing a like occupation, and to prescribe their compensation. The sqpreme cour.t of this -decides in that case that the power to require a license is one of the means of regulating the exetcise of a pursuit or business; that ther.e are other means that might be adopted to accomplish the purpose, but
V: CITY OF CHICAGO.
that these municipal authorities are not" as to the means that they shall employ to regulite'the business; 'and various authorities are cited'bytl1e court 'in support of the view they and they repeat the ruling which had been previously made, that a license was not, in the consti. ' tutional sense of the term, a tax. The supreme court must alsohave considered passed upon a question which has been discussed in this case, namely, whether or not the act which gave the authority to the city to license was a general law under the 'constitution of this state; and they held that it was, and that it was intended to apply to all cities which might rtdopt it. It is true that was a case of licensing a busiuess which was generally admitted to be injurious in its character to those near the place where it was carried on; but it waS question of power, and the point in controversy was whether the city of Chicago had the right to exercise the power of 'licensing. The license fee demanded in that case was $100. It'seems to me'that the question involved in this case fj,rose sdbstantially in 'ihil.t, and it was decided by'the supreme colirt'of the state that it was a valid exercise of the power to regulate a particular business. That is also the vIew taken by the supreme court of Pennsylvania in the caseS refertM to. ,In view of these decisiops, and of' several decisions of the: Bupieme court of the United States within the last few years, (Munn v. Illinois, 94 U. S. 113, and others,) I think the weight of authority 'is in favor of regarding this as a police regulation. One of the difficulties I have had the case has been whetherit ought not to be regarded as a. tax for' revenue under the form of a license. It may be conceded that the argument is strong for treating it 'as a revenue measure; but, as , I before stated., there ate Some objections,whic4 I, consider 'prevent pie 'at this time from very weighty, and which placing the, de,cision on that ground. . It"tnay be 'admitted that, viewing it as a police regulation reql1iring payn;tent of a fee for: the license, in amouiJ.t it goes'to"the very of the exercise of police power; 'but as other courtsh!ive held that such a tax ai.a not exce'3d that liniit;"l cani:iofhd1d'that
it does in this case; and therefore I shall, as at present vised, sustain the ordinance in question as a valid exercise of the police power of the city council. There have been some arguments used by counsel which, , I think, do not properly apply to the pleadings. It is insisted that the court must construe this as a tax, and not a mere police regulation. It is admitted that the court of appeals of New York did construe a similar license fee as a tax. The supreme court of Pennsylvania has given a different construe. tion, and held it to be a police regulation. There is nothing in the bill by which the court can regard it absolutely as the exercise of the taxing power of the city. There is nothing in the bill which would authorize the. court to hold, if it were a tax, that it was in violation of the constitution of 1870, as not being uniform upon the particular class on which it opIt is urged that it cannot be treated as a tax, because, if so, it would not be within this requisition of the constitution of 1870, because the street railways come in direct competition with some of the steam railways; as that of the Illinois Central and the Northwestern to Hyde Park and Evanston. There is nothing in the pleadings which would warrant the court in considering thtlse facts, unless the court should take judicial notice that they do thus come in competition, without any allegation in the pleadings. Under the authorities, and upon the statements contained in the pleadings, the court cannot necessarily construe this as a tax. The. court is at liberty, I think, to construe it as a police regulation. These views have been given for the purpose of enabling the parties, if they desire, to take the case to the supreme court of the United States. The district judge who heard the application. f01' an injunction in the first instance, and granted it, is incliJ,led to hold, as I understand, that this was proper exercise of the police power. I hold, for the not purpose of d,eciding the case, that it is; and if the case is to by the pleadings as they at present stand, it be can be certified up to the supreme court as upon a division of opinion between the judges. If, however, the counsel
STANLEY v. BOARD OF SUP'RS OF ALBANY ao.
desire to raise some of the questions which have been discussed in the argument, I think it would be advisable for them to amend the bill; ,and, if they wish, leave will be granted for that purpose.
STANLEY v. BOARD OF SUP'RS OJ: ALBANY Co.
(Circuit Court, No D. New York. April,I881.)
1. BUIT ARISING UNDER THE LAWS OF THE UNITED STATES-ACT OF
MARCH a, 1875-NATIONAL .BANK SHAREff- TAXATION-REv. ST. t 5219. An action to enforce a right conferred by section 5219 of the Revised Statutes, regarding the taxation of property in the shares of national banking associations, is a suit arising" under the laws of the United States," within the meaning of the act of March a, 1875.[En.
Hale <t Bulkley, for plaintiff. R. W. Peckham, for defendant. WALLACE, D. J. The court has jurisdiction of this action, notwithstanding the plaintiff's assignors are oitizens of this state, because this is a suit arising "under the laws of the of United States" within the meaning of the act of March 3, 1875, respecting the jurisdiction of circuit c.ourts. The action is to enforce a right oonferred upon the plaintiff and his assignors by section 5219, of the Revised Statutes of the United States, regarding the taxation of property in the shares of national banking associations. As was said by Chief Justice MarShall, "a case may be truly said to arise under the oonstitution, or a law of. the United States, whenever its correct decision depends upon the construction of either," (Cohen v. Virginia, 6 Wheat. 379;) or where the title or right set up by the party may be defeated by one construction of the constitution or laws of the United States, or sustained by the opposite construction. Osborne v. Bank of U. S. 9 Wheat. 822. The right of the plaintiff depends upon the construction of section 5219. If that section is'meaut v.6,no.6-36