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The provisions of G. L. c. 160, $ 71, afford Its enforcement will not be refused unless it no foundation for the plaintiff's contentions. is incapable of rational construction in har

The provisions of St. 1909, c. 519, were not mony with the federal law. Perkins v. Westabrogated or superseded by St. 1914, c. 766. wood, 226 Mass. 268, 271, 115 N. E. 411; AtThat was a purely permissive statute. It torney General v. Pelletier, 240 Mass. 264, was in no sense mandatory. Read in con- 299, 134 N. E. 407; Commonwealth v. Slavnection with the proceedings in the federal ski, 245. Mass. 405, 418, 140 N. E. 465, 29 A. court set forth at some length in the mas- L, R. 281. ter's report, it seems clearly designed to be [5] Where a party seeks relief for violasupplementary to said chapter 519, and to tion of the Sherman Anti-Trust Act or of the aid the defendant in attempting to comply Clayton Act, he must address a court of the with arrangements made by it with the rep- United States and not of a state. General resentations of the government of the United Investment Co. v. Lake Shore Railway, 260 States and to enable it to comply with an U. S. 261, 287, 43 S. Ct. 106, 67 L. Ed. 244. anticipated decree of the federal court. It Decree to be entered dismissing bill with constituted an assent by this commonwealth costs. to the sale of the stock of the defendant in the Holding Company and to the sale of the stock in the Boston & Maine Railroad owned by the Holding Company. Under the terms FIRESTONE et al. v. CITY OF CAMBRIDGE

et al. (No. 18646.) of said chapter 519 a sale of neither of these stocks could be made without the consent of (Supreme Court of Ohio. June 9, 1925.) the commonwealth.

(Syllabus by the Court.) [3] The enactment of St. 1914, c. 766, did not constitute a contract between the com 1. Licenses el-Assessment of fee by mumonwealth and the defendant whereby the

nicipality, on motor vehicle owners residing terms of St. 1909, c. 519, were waived or ab

therein, held "excise tax." rogated. Comparison of said chapter 766

The assessment of an annual fee by a muwith the decree of the federal court of Oc- nicipal ordinance, upon owners of motor vehitober, 1914, shows that the former was de- cles residing in the municipality, for the privisigned to enable the defendant to yield obedi- lege of operating such motor vehicles upon the

streets thereof, for the declared purpose of proence to such decree without infraction of the ducing a fund to be used for the cleaning, mainlaws of this commonwealth. But that stat- tenance, and repair of the streets of the muute neither in form nor substance compelled nicipality, to which use it is thereby approthe defendant to carry out the terms of the priated, though denominated a license fee, is "Boston & Maine Trust Agreement,” made a an “excise tax." part of that statute.

(Ed. Note.-For other definitions, see Words [4] The argument of the plaintiff that St. and Phrases, First and Second Series, Excise.] 1909, c. 519, is void because in violation of 2. Municipal corporations ww592(1)—Munici. the federal Anti-Trust Act of 1890 (U. S.

pality cannot levy excise tax in addition to Comp. St. $$ 8820–8823, 8827-8830) and the

levy by state. Clayton Anti-Trust Act of 1914 (38 Stat. 730)

No municipality in this state has power to is without merit on several grounds. The levy such excise tax in addition to that levied point is not open on this record. It is mani. by the state for similar purposes. fest that the bill is not framed on any such theory. It further is plain that the trial be Certified by Court of Appeals, Guernsey fore the master was not directed to any such County. inquiry. This record contains no facts upon which to predicate any such violation. The and others against the City of Cambridge record does not disclose restraint of interstate and others. The action was heard on appeal commerce or attempts at monopoly, but on by the Court of Appeals, which refused an the contrary shows that no such issue was injunction, and dismissed the petition, and raised or tried. If any inference at all were certified the record to the Supreme Court. to be drawn, it would seem that the decree

Judgment reversed.—[By Editorial Staff.] of the federal court of June, 1924, ordering the assignment of the stock in the Ilolding

This action was brought in the court of Company to or upon the order of the defend- common pleas of Guernsey county, to enjoiu ant was an indication that that court was the enforcement of the provisions of an ordisatisfied that there had been no violation of nance of the city of Cambridge, purporting federal law. It would require strong grounds to be an ordinance to regulate the use of the to warrant a setting aside of a statute of this streets and avenues of the city by the resi. commonwealth because of repugnancy to the dents thereof, and by persons not residents, terms of a federal statute operative and su- who come within the city limits and use preme within its sphere. Every rational pre- ! the streets for the purpose of making deliver. sumption is made in favor of the validity of ies of commodities at regular times, but er. a statute duly enacted by the general court. I cepting farmers and gardeners selling or de

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(148 N.E.) livering the products of their own raising or , judgment to be in conflict with the judgment manufacture. It prohibits the use of any of the Court of Appeals of the First Appelsuch vehicle on the streets of that city, un-late District, in the case of Crane v. City of less a license is obtained, and fixes the fee Middletown, 4 Ohio App. 130, 21 Ohio Cir, which is required to be paid-the owner of Ct. R. (N. S.) 173, the record was certified a motor pleasure vehicle or motor truck, used to this court. for any purpose whatever, except carrying

Scott & Scott, of Cambridge, and Niman, passengers for hire, being required to pay Grossman, Buss & Holliday, of Cleveland, for annually 25 per cent. of the amount paid to plaintiffs in error. the state of Ohio. It provides that the mon

J. W. Smallwood and Chas. S. Sheppard, ey paid into the treasury from such license both of Cambridge, for defendants in error. fees shall be credited to the fund known as

Harold H. Gorman, Frank J. Merrick, and the safety fund, and shall be first applied to John L. McChord, all of Cleveland, amici the expense of issuing the license and fur

curiæ. nishing tickets or checks, and that what remains, if any, "shall be transferred to the MATTHIAS, J. Three questions are preservice fund and be used for the cleaning, sented by the record in this case: First, has the maintenance and repair of the streets a municipality power to require the owners and avenues of the city of Cambridge, Ohio." of automobiles, used for private and not for The ordinance recites, as reasons for the commercial purposes, to pay a license fee as emergency character thereof, that an in- a prerequisite to the use of such motor vecrease in the police force is necessary by rea- hicle on the streets of such municipality? son of the increased traffic on the streets, Second, are the fees exacted by the ordinance "thereby imposing upon the city an addition- in question license fees, or do they constitute al expenditure of money, which, under the an excise tax? · Third, if they constitute an law of taxation, it is unable to meet.” It also excise tax, are Ohio municipalities authorizrecites that, by reason of the increased traf-ed to exact and collect the same? fic, the streets have become filthy and un

Counsel for the municipality claim authorsanitary, and thereby necessitate a large ex-lity is conferred to enact and enforce the propenditure of money for the purpose of clean- visions of such ordinance by section 3632, ing them, that the funds available for that General Code. That is one of the sections purpose are inadequate, and, further, that of the General Code containing the enumera"by reason of the increased traffic,

tion of the powers conferred upon municipal said streets and avenues in many places have corporations, and for the exercise and enbecome worn and out of repair and in a forcement of which council may provide by dangerous condition for public travel, and ordinance. The portion thereof necessary in the same has been caused, not only by the the consideration of this case is as follows: ordinary use and traffic by said vehicles “To regulate the use of carts, drays, wagons, aforesaid, but by the reckless driving and hackney coaches, omnibuses, automobiles, and disregard of the traffic laws, rules, and regu- every description of carriages kept for hire lations." It is further recited that the "funds

or livery stable purposes; to license and regufrom which are paid the police force of said late the use of the streets by persons who use city of Cambridge, Ohio, which police force is vehicles, or solicit or transact business therewholly inadequate, are now exhausted, and said council has no means to relieve said It is contended by plaintiffs in error that situation; neither is there money in the fund this provision authorizes the municipal counfor cleaning and repairing the streets and cil to license and regulate only vehicles avenues," etc.

which use the street for the purpose of soPlaintiff is the owner of a pleasure motor liciting or transacting business, and this convehicle, and resides in the city of Cambridge, tention is supported by the Court of Appeals which is not a charter city. Issue was made of the First Appellate District in the case of by the pleadings, under which evidence was Crane v. City of Middletown, 4 Ohio App. heard with reference to the necessity of ad-130, 21 Ohio Cir. Ct. R. (N. S.) 173, and it was ditional police protection, with reference to with the judgment in that case that the the condition of the streets of the city of Court of Appeals in the instant case found Cambridge, and also with reference to the itself in conflict. In the determination of amount of money that would be raised by the the question we find ourselves in accord with enforcement of the provisions of the ordi- the decision of the Court of Appeals in the nance in question, from which it appears City of Middletown Case. We are led to that that the expense of issuing licenses would conclusion, not only by reason of the lannot be more than $400, and that the fees that guage of section 3632, General Code, in its would be collected would amount substantial- present form, but also by the history of the ly to $9,000.

legislation. The first part of the section was The action was heard on appeal by the formerly embraced in section 1692, Revised Court of Appeals, which refused the injunc- Statutes 1897, and conferred authority to tion and dismissed the petition. Finding its | regulate all vehicles kept for hire or livery

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stable purposes, but subsequently the section, tenance and repair of the public roads. The then subdivision 9 of section 1536-100, Re- tax is levied on the privilege of operating a movised Statutes, was amended by adding the tor vehicle on the public highways. The profollowing:

visions in the law with reference to its ad

ministration, and with reference to regulation “To license and regulate the use of the streets and registration of motor vehicles, are merely by persons who use vehicles, or solicit or trans- incidental police regulations which do not af. act business thereon." Act Oct. 22, 1902 (96 fect the main object intended. The law proOhio Laws, p. 23).

vides that all fees collected under the chapter

shall be paid into the state treasury to the It is quite apparent that this amendment credit of the fund to be designated as a 'state was made for the purpose of extending the maintenance and repair fund.' power of regulation and including therein have already shown, the law in question is

tax law. vehicles which were not described in the sec

Its purpose is manifestly the pro

duction of revenue to be used for the purpose tion as it previously existed. By its express specifically set forth. If the law raised suffiprovisions it now includes, not only persons cient to pay only the expense of administerwho solicit and transact business on the ing it, it would not be a tax at all. It would streets, but also persons who use vehicles on be in the nature of a license. Being a tas the streets.

laid on a privilege for a specific purpose to [1] But does the ordinance in question pro. be used for the maintenance and repair of the vide for the payment of a license fee, or does thing concerning which the privilege is grantit exact the payment of an excise tax? That ed, it is a valid tax unless unreasonable. The there is a distinction must be conceded; that privilege enjoyed by those who pay the tax, is

use of the entire proceeds, in aid of the specific such distinction has sometimes been disre- an essential feature in determining its reasongarded seems apparent Licensing and regu- ableness." lating are an exercise of the police power, while the exaction of an excise tax is an ex The conclusion cannot be escaped that the ercise of the taxing power. This distinction whole purpose of the ordinance in question was clearly made by Judge Ranney in the here was that of the collection of revenue. case of Mays v. Cincinnati, 1 Ohio St. 268, In the city of Cambridge there are about where he said (page 273):

2,000 automobiles and 400 motor trucks. Con“A license may include a tax, or it may not. cededly but $400 of the $9,000 that would be If the exaction goes no further than to cover raised would amply cover the expense of the the necessary expenses of issuing it, it does, issuance of such license, and, by the express not; but, if it is made a means of supplying terms of the ordinance itself, it is provided money for the public treasury, we agree with that all of said funds above that required for the court in State v. Roberts, 11 Gill & Johns. the issuance of such license, furnishing the 506, that it 'is a tax is too palpable for dis- ! tags, checks, etc., “shall be transferred to cussion.'

the service fund and be used for the clean. In that case it was held that when the sum ing, the maintenance and repair of the demanded is used as a means of supplying streets and avenues of the city of Cambridge, the public treasury it constitutes a tax. Ohio.” The power to license was undoubtedMany decisions of other states might be cited ly conferred only as an incident to the pow. wherein this same distinction between license er to regulate. The basis of the decision of fees and excise taxes is consistently recog- the Court of Appeals, as stated in its opinnized and applied. It would seem unneces- ion, is that the amount that will be produced sary to go further than the decision of this by the exaction of the prescribed fee will court in the case of Saviers v. Smith, Secr. not exceed the amount required to pay the erof State, 101 Ohio St. 132, 128 N. E. 269, and pense of issuing licenses and the expense of the more recent cases of Fisher Bros. Co. v. keeping the streets clean and repairing the Brown, Secy. of State, 111 Ohio St. 602, 146 damage caused by the use of autoinobiles upN. E. 100, and Foltz Grocery & Baking Co. on the streets. v. Brown, Secy. of State, 111 Ohio St. 646, 146

The provision, a part of section 3675, Gen. N. E. 97. The entire theory of the Saviers eral Code, that "all moneys and receipts, in Case and the subsequent cases referred to any municipal corporation, which are derived and the basis of the decision of this court in from the enforcement of any ordinance or those cases, was that the act of the Legisla- law requiring the payment of a vehicle liture in question was one imposing an excise cense fee, shall be credited and paid into a tax upon the privilege of operating motor separate fund, which fund shall be known as vehicles, because the proceeds thereof were the public service street repair fund," does to be used for the purpose of the maintenance not serve to confer any power in addition to and repair of roads. In the opinion in the that conferred by the provisions of section Saviers Case, at pages 135 and 142 (128 N. 3632, General Code, which does not authorize E. 270, 272), it was said:

the exaction of any fee except as an in“It is perfectly apparent that this statute cident to the power of regulation. There is is a tax or revenue measure. The taxes are no provision whatever in this ordinance reg. raised for a specific object, namely, the main-/ ulating the use of such vehicles, nor in any

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(148 N.E.) trise regulating the traffic on the streets of fund for the purpose of cleaning, repairing, the city of Cambridge, and no portion of the or improving the streets of a municipality. fund is appropriated to any such purpose. In the case of State ex rel. Zielonka v. Carrel, That it was enacted with the view of raising Aud., 99 Ohio St. 220, 124 N. E. 134, this revenues for the purpose of restoring the de- court held that a charter city could raise pleted funds of the municipality, and particu- revenue for local purposes by an occupational larly the street cleaning and repair fund, is tax so long as the state did not levy such made perfectly clear and manifest from the tax, and subsequently this court applied the ordinance itself. It seems impossible to es limitations upon the exercise of such power cape the conclusion that it is not, nor was even by charter cities, in the case of City of it intended to be, a regulatory measure, but | Cincinnati v. American Telephone & Telethat, by whatever name it may be called, it is graph Co., 147 N. E. 806, where it was specifin fact an excise tax imposed for the purpose ically held in the syllabus that the power to of raising revenue. If it is not, then neither levy such tax "does not extend to fields withwas the law under consideration in the Sa- in such municipality which have already viers Case, the Fisher Bros. Co. Case, and been occupied by the state.” the Foltz Grocery Co. Case, supra, one pro Authority is conferred upon the General viding for a tax levy.

Assembly by section 13, art. 18, of the ConIn the case of Marmet v. State, 45 Ohio stitution, to limit the power of municipalities St. 63, 12 N. E. 463, relied upon by counsel to levy taxes for any purpose, and, as held for defendants in error, not an ordinance in the cases above cited, that may be done but a law of the state was under considera- either expressly, or by implication, by the tion, and it was upheld as a valid tax meas

exercise of such power by the state itself.

At the time of the enactment of this ordiThe case of City of Terre Haute v. Kersey, nance there were in effect section 6299 et 159 Ind. 300, 64 N. E. 469, 95 Am. St. Rep. seq., General Code, which not only levied an 298, also relied upon as supporting the con-excise tax upon the owners of motor vehicles tention of the defendants in error, involved for the maintenance and repair of public not only the authority of the council of a mu- roads, highways, and streets, but provided nicipality in the state of Indiana to license, that 50 per cent. of all the taxes collected but also the authority to tax, and because are required to be returned to the municipalthereof that court sustained the validity of ity where they originated, to be used for an ordinance which admittedly not the purpose of street repair. It is disclosadopted in the exercise of police power, buted by the record that the city of Cambridge for the purpose of raising revenue, and held receives about $11,000 from that source each that the municipality was exercising a legit- year. It is to be observed that the Legislaimate special taxing power expressly con- ture not only levied this tax for the benefit ferred upon it by the Legislature. It must of the state, but for the benefit of municipalbe concluded that that is the power which ities as well. No municipality has power to the council of the city of Cambridge is seek- levy such a tax in addition to that levied by ing to exercise.

the state for similar purposes.
[2] We thus come to the question whether Judgment reversed.
at this time municipalities of Ohio, whether
governed by charter or otherwise, are au-
thorized to levy an excise tax upon the own-

JONES, DAY, KINKADE, and ROBINers of all motor vehicles, and thus raise a | SON, JJ., concur.

ure,

was

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8. Executors and administrators 330-Sale BRIER V. CHILDERS et al. (No. 24470.) of entire tract covered by mortgage held

properly ordered to pay decedent's debts. (Supreme Court of Indiana. June 30, 1925.)

In suit by administrator for sale of land

to pay decedent's debts, entire tract covered 1. Courts Om 220(13)—Appeal from order for by mortgage held properly ordered sold for

sale of real estate, by administrator, held purpose of paying debts and costs of adminwithin Supreme Court's jurisdiction.

istration, though owner of one tract had tenAn appeal from an order for sale of real dered wbat he claimed to be his share of mortestate, by an administrator, to pay debts of gage debt. his decedent, is within jurisdiction of Supreme Court, under Acts 1925, c. 201, § 1.

9. Mortgages 310 Mortgagee's approval

of report held not consent to release of tract 2. Appeal and error Om 327 (2) Parties to from part of mortgage ordered paid by own.

judgment adverse to appellant, who have in ers of other tracts. terests antagonistic to that of appellant, must Where, in partition suit, no issue was joinbe named as parties in assignment of error. ed with mortgagee, who merely asked to have

Burns' Ann. St. 1914, § 2978, permitting his rights protected, and referee's report did appeals in cases connected with decedent's es not purport to release any part of tract from tate to be taken by aggrieved person without mortgage, mortgagee's indorsement of report joining any other, does not, in view of Acts “O. K." did not amount to agreement that one 1925, c. 19, excuse compliance with estab- part of tract might be released from lien of lished rule that all parties to judgment below, that part of mortgage ordered paid by owners adverse to appellant, must be named as par- of other tracts to equalize their shares. ties in the assignment of errors.

10. Appeal and error Om 1050(1)-Admission 3. Appeal and error Omw 327(3)-Appellant held

of evidence that, in former action against not required to name other defendants as

appellant, plaintiffs therein had recovered parties to his appeal.

nothing, held not prejudicial. In suit by administrator for sale of certain

In action by administrator for sale of real lands for payment of decedent's debts, where estate to pay decedent's debts, admission of cross-complaint of one defendant asked that judgment in another suit against defendant, lands set off to three others be first sold, which reciting that plaintiffs therein should take nothcourt ordered, held, that such three owners

ing, held not prejudicial. must all be deemed potential appellants, so that one of them, in appealing under Burns'

11. Appeal and error Om 1050(2)-Admission Ann. St. 1914. § 2978, need not name other

of immaterial evidence, not misleading judge,

not ground for reversal. two as parties to his appeal.

Admission of wholly immaterial evidence, 4. Appeal and error (811-Appeal advanced not tending to mislead judge who tried case, is

for immediate consideration, where settle- not ground for reversing judgment.
ment of estate depends on decision.
Under rule 32, where settlement of estate

Appeal from Probate Court, Marion Coun-
depends on decision of appeal in question, it ty; Mahlon E, Bosh, Judge.
will be advanced for immediate consideration

Suit by Frank R. Childers, administrator, and decision.

etc., and others, against Ernest Brier and 5. Judgment ww305—Motion to modify judg. 1 others, wherein the named defendant filed

ment conforming to finding, which was within a cross-complaint. Judgment for plaintiffs, issues joined on pleading, properly overruled. and the named defendant appeals. Affirmed.

Motion to modify judgment was properly Florea & Seidensticker, of Indianapolis, for overruled, where judgment exactly conformed

appellant. to finding, which was within issues joined on the

Herman W. Kothe and Walker & Hollett, pleadings.

all of Indianapolis, for appellees. 6. Judgment Om 325-Motion to modify judg.

ment presents question whether judgment conforms to finding as actually made.

EWBANK, J. [1] After chapter 201, page A motion to modify judgment does not pre

487, Acts 1925, took effect, a general order sent any question as to what, under the evi was made transferring to the Appellate Court dence, finding on uncontroverted points ought many causes designated by numbers, in an to be, but only whether judgment conformed attempt to comply with section 1393, Burus" to finding as actually made.

1914, which was section 2, chapter 148, page 7. Appeal and error C 933(1) passing on previously amended, was amended bp saja

237, Acts 1907, the first section of wbich (as motion for new trial for insufficiency of evi- act of 1925. Inadvertently cause No. 24170 dence, all evidence tending to sustain finding accepted, and that to contrary rejected.

was listed among those transferred. Being Supreme Court, in passing on motion for

an appeal from an order for the sale of real new trial, because of alleged insufficiency of estate by an administrator to pay debts of evidence, will accept as true all evidence and his decedent, the jurisdiction is in the Suinferences from facts tending to sustain find preme Court under the twelfth subdivision ing, and disregard all evidence to contrary. of section 1 of said act of 1925, as construed

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