Suit in equity by Edmund D. Codman without the express authority of the Legis against the New York, New Haven & Hart- lature." A suit then pending by the United ford Railroad Company to restrain alleged States against the defendant in a federal violations of law. Case reserved on plead- court, designed to terminate its relations ings and master's report. Decree to be en- with the Boston & Maine Railroad, was theretered dismissing bill. upon dismissed by the Attorney General of C. W. Crooker, of Boston, for E. D. Cod- the United States, and thereafter pursuant man. H. S. Davis, of Boston, for Railroad Co. RUGG, C. J. This suit in equity is brought by a stockholder in the defendant corporation to restrain alleged violations of law proposed by it. It is assumed in favor of the plaintiff, but without so deciding, that he is authorized to institute such suit by G. L. c. 160, § 252. The to said chapter 519 the defendant transferred its two hundred twenty-five thousand seven hundred and thirty-two shares of the capital stock in the Boston & Maine Railroad to the Boston Railroad Holding Company (hereinafter called the Holding Company) which are the same shares ever since held by it although now, due to reorganization and consolidation, they constitute twenty-eight and three-tenths per cent. instead of a majority of such capital stock. The defendant owns all the common stock and two hundred forty-four thousand nine hundred and thirtynine out of a total of two hundred seventytwo thousand nine hundred and thirty-nine shares of the preferred stock of the Holding Company. Through ownership of stock in the latter corporation its shares of stock in the Boston & Maine Railroad were voted by the defendant in the years 1910 to 1913 inclusive. Thereafter the United States brought suit against the defendant in a federal court to determine its relation with other corporations including the Boston & Maine Railroad, wherein decree was entered in October, 1914, directing the defendant to assign its shares in the Holding Company to certain named trustees, and such assignment was made accord The case was referred to a master. pertinent facts as alleged and found, succinctly stated, are these: The defendant is incorporated under the laws of the state of Connecticut and of this commonwealth, and at the time of the institution of this suit and for a long time hitherto has owned and operated a railroad within this commonwealth. In 1906 the defendant acquired a majority of the stock of the Boston & Maine Railroad, a corporation also owning and operating a railroad in this commonwealth at all times material to this suit. When this fact was called to the attention of the general court, it enacted St. 1907, c. 585 (see now G. L. c. 160, 8 71) which in sweeping terms forbade such an acquisition of stock after the passage of the act, and further forbade any such corpo-ingly. The trustees were required, pending ration holding such stock from voting on the same until July 1, 1908. After full consideration by the general court of the question whether such acquisition of the stock in the Boston & Maine Railroad by the defendant was in the public interest, St. 1909, c. 519, was enacted. Thereby the Boston Railroad Holding Company was incorporated for the declared "sole purpose of acquiring and holding the whole or any part of the capital stock of the Boston & Maine Railroad, and of voting upon all certificates of stock so acquired and held." It further was provided by that act that "the stock of the Boston & Maine Railroad which may be acquired by said Boston Railroad Holding Company shall not be sold by it without express authority from the Legislature"; and that "any railroad corporation incorporated at the date of the passage of this act under the laws of this commonwealth may guarantee the principal of and the dividends and interest upon the capital stock of said Boston Railroad Holding Company, and may acquire and hold said stock ever, that the shares of stock of said Boston Railroad Holding Company shall not be sold or transferable until said stock has been guaranteed as herein before provided. Any railroad corporation acquiring said stock ** * * * * the final consummation of the purposes to be accomplished by the decree, to hold the shares of stock and act with respect to them with a view to securing to the Boston & Maine Railroad a management solely in its own interest, as distinguished from that of the New York, New Haven & Hartford Railroad Company, with due regard for the public interest and with substantial representation to minority stockholders of the Boston & Maine Railroad. Without reciting in detail the decrees and modifications thereof entered in that suit, it is enough to say that the trustees were originally directed to sell the stock in the Boston & Maine Railroad owned by the Holding Company upon stipulated conditions but that no such sale was made, apparently because it was not reasonably prac ticable, and that in June, 1923, decree was entered dissolving the trusteeship in so far as stock in the Holding Company was concerned, and directing the trustees to assign and deliver all stock of the Holding Company held by them to or upon the order of the defendprovided, how-ant, subject to the provisions of St. 1909, c. 519, and the statutes of this commonwealth. shall not thereafter sell the same Up to 1922 there had been no contest by the defendant touching any of the affairs of the Boston & Maine Railroad. Since then it has endeavored to secure a representation on its board of directors and at the annual meet (148 N.E.) the corporate acts of the Boston & Maine Railroad "in violation of the general laws of this commonwealth, as the same is now con ing of 1924 two persons proposed by the Holding Company were elected to the board composed of seventeen members. With respect to its policies officers of the defendant have tak-templated and intended" by the defendant; en a position not altogether in harmony with that of a majority of the stockholders of the Boston & Maine Railroad. There are divergent opinions among its stockholders as to the general policies which ought to be pursued by the Boston & Maine Railroad, whether by consolidation with any other company or companies and in other respects. It is not necessary to state these views. With respect to the attitude of the defendant and its officers concerning representation on the board of directors of the Boston & Maine Railroad the master finds: "The New Haven Railroad desired proportional representation on the board of directors of the Boston & Maine in order that it might be helpful to the Boston & Maine in promoting the interests of both companies so that they might be of mutual advantage, but not of disadvantage to either, and that it might lawfully participate in the considerations in regard to consolidation, and that as a minority holder of the stock of the Boston & Maine it did not expect to secure control of the Boston & Maine Road. The officers of the respondent Railroad believed that as they were the indirect owners of 28.3 per cent. of the stock of the Boston & Maine, and as they had an investment indirectly in the Boston & Maine Railroad of about $27,000,000.00, that they had the right to have proportionate representation upon the board so that they might follow the activities of the Boston & Maine Railroad and to see to it that the investment was not depleted, and that by that means they could watch the financial situation of the Boston & Maine and give attention to the situation, and if possible aid in devising means practicable for the assistance and corporation both in increasing Boston & Maine revenues and otherwise financing its requirements. I find that the respondent did have this large financial interest in the Boston & Maine, and that it was the duty of the directors of the New Haven to see to it that its investment was protected, and that they would not have been faithful to their trust had they not attempted to do everything possible to see to it that the Boston & Maine was a paying proposition, provided what they did could be lawfully done." The Boston & Maine Railroad was not lawfully leased, owned or operated by the defendant prior to May 1, 1907, and the two have never been consolidated. There has been no specific authority by law relieving the Boston & Maine Railroad or the defendant from the operation of the restrictive and limiting provisions of G. L. c. 160, § 71, unless as matter of law such authority is contained in St. 1909, c. 519. The prayers of the bill are (1) that the defendant and its officers be permanently restrained from voting or utilizing the stock of the Holding Company in such manner as to have any tendency to effect a control over and (2) that the defendant be required to assign all its stock in the Holding Company to trustees to be appointed by the court to be by them held and administered with due regard to the interests of the defendant but in strict accordance with the laws of the commonwealth. [1] The acquisition of the stock of the Boston & Maine Railroad by the defendant in 1906 was ultra vires the defendant. Attorney General v. New York, New Haven & Hartford Railroad, 198 Mass. 413, 84 N. E. 737. The allegations of the present bill are not founded on that acquisition. The plaintiff both by his bill and by express statement in his brief relies wholly upon G. L. c. 160, § 71, being in substance a re-enactment of St. 1907, c. 585. The latter statute was by express terms prospective only in its operation. It did not purport to apply to purchases of stock made prior to its enactment. [2] The Legislature by St. 1909, c. 519, dealt comprehensively with the whole subject of the relation of the defendant to its stock in the Boston & Maine Railroad. The purpose of that act was to divest the defendant of direct ownership of that stock and to cause it all to be owned by the Holding Company. The powers of that company are specific. They include all the ordinary powers of owners of capital stock in a corporation except so far as therein limited. One of the definite powers conferred is that of voting upon the stock of the Boston & Maine Railroad owned by it. That imports, in view of all the provisions of the act, power to exercise the judgment commonly exercised by a stockholder as to the election of officers, the formulation of policies and the other corporate management. The findings of the master are explicit to the effect that both St. 1907, c. 585, now G. L. c. 160, § 71, and St. 1909, c. 519, were enacted with special reference to the ownership of stock in the Boston & Maine Railroad by the defendant. Together they constitute the legislative plan on that subject. It is impossible in view of these findings and of the terms of the statute to hold that the Legislature intended to prohibit the defendant from owning indirectly the stock of the Boston & Maine Railroad through its ownership of the stock of the Holding Company or to prohibit the defendant from exercising its ownership of the stock in the Boston & Maine Railroad in accordance with St. 1909, c. 519. The enactment of St. 1909, c. 519, constituted in substance and effect specific authority to the defendant to deal with its stock in the Boston & Maine Railroad as therein set forth. The plaintiff has not argued and could not well argue that that statute violated any of his constitutional rights. The provisions of G. L. c. 160, § 71, afford no foundation for the plaintiff's contentions. The provisions of St. 1909, c. 519, were not abrogated or superseded by St. 1914, c. 766. That was a purely permissive statute. It was in no sense mandatory. Read in connection with the proceedings in the federal court set forth at some length in the master's report, it seems clearly designed to be supplementary to said chapter 519, and to aid the defendant in attempting to comply with arrangements made by it with the representations of the government of the United States and to enable it to comply with an anticipated decree of the federal court. It constituted an assent by this commonwealth 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 Its enforcement will not be refused unless it is incapable of rational construction in harmony with the federal law. Perkins v. Westwood, 226 Mass. 268, 271, 115 N. E. 411; Attorney General v. Pelletier, 240 Mass. 264, 299, 134 N. E. 407; Commonwealth v. Slavski, 245. Mass. 405, 418, 140 N. E. 465, 29 A. L. R. 281. [5] Where a party seeks relief for violation of the Sherman Anti-Trust Act or of the Clayton Act, he must address a court of the United States and not of a state. General Investment Co. v. Lake Shore Railway, 260 U. S. 261, 287, 43 S. Ct. 106, 67 L. Ed. 244. Decree to be entered dismissing bill with costs. by the Holding Company. Under the terms FIRESTONE et al. v. CITY OF CAMBRIDGE of said chapter 519 a sale of neither of these stocks could be made without the consent of the commonwealth. et al. (No. 18646.) (Supreme Court of Ohio. June 9, 1925.) (Syllabus by the Court.) 1. Licenses -Assessment of fee by municipality, on motor vehicle owners residing therein, held "excise tax." The assessment of an annual fee by a municipal ordinance, upon owners of motor vehicles residing in the municipality, for the privi [3] The enactment of St. 1914, c. 766, did not constitute a contract between the commonwealth and the defendant whereby the terms of St. 1909, c. 519, were waived or abrogated. Comparison of said chapter 766 with the decree of the federal court of October, 1914, shows that the former was designed to enable the defendant to yield obedi-lege of operating such motor vehicles upon the ence to such decree without infraction of the laws of this commonwealth. But that statute neither in form nor substance compelled the defendant to carry out the terms of the "Boston & Maine Trust Agreement," made a part of that statute. streets thereof, for the declared purpose of producing a fund to be used for the cleaning, maintenance, and repair of the streets of the municipality, to which use it is thereby appropriated, though denominated a license fee, is an "excise tax." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Excise.] 2. Municipal corporations 592(1)—Munici. pality cannot levy excise tax in addition to levy by state. No municipality in this state has power to levy such excise tax in addition to that levied by the state for similar purposes. Certified by Court of Appeals, Guernsey County. Suit for injunction by Forest Firestone and others against the City of Cambridge and others. The action was heard on appeal by the Court of Appeals, which refused an injunction, and dismissed the petition, and certified the record to the Supreme Court. Judgment reversed.-[By Editorial Staff.] [4] The argument of the plaintiff that St. 1909, c. 519, is void because in violation of the federal Anti-Trust Act of 1890 (U. S. Comp. St. §§ 8820-8823, 8827-8830) and the Clayton Anti-Trust Act of 1914 (38 Stat. 730) is without merit on several grounds. The point is not open on this record. It is manifest that the bill is not framed on any such theory. It further is plain that the trial before the master was not directed to any such inquiry. This record contains no facts upon which to predicate any such violation. The record does not disclose restraint of interstate commerce or attempts at monopoly, but on the contrary shows that no such issue was raised or tried. If any inference at all were to be drawn, it would seem that the decree of the federal court of June, 1924, ordering the assignment of the stock in the Holding Company to or upon the order of the defendant was an indication that that court was satisfied that there had been no violation of federal law. It would require strong grounds to warrant a setting aside of a statute of this commonwealth because of repugnancy to the terms of a federal statute operative and supreme within its sphere. Every rational presumption is made in favor of the validity of a statute duly enacted by the general court. I cepting farmers and gardeners selling or de This action was brought in the court of common pleas of Guernsey county, to enjoin the enforcement of the provisions of an ordinance of the city of Cambridge, purporting to be an ordinance to regulate the use of the streets and avenues of the city by the residents thereof, and by persons not residents, who come within the city limits and use the streets for the purpose of making deliveries of commodities at regular times, but ex For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (148 N.E.) late District, in the case of Crane v. City of Middletown, 4 Ohio App. 130, 21 Ohio Cir. Ct. R. (N. S.) 173, the record was certified to this court. Scott & Scott, of Cambridge, and Niman, Grossman, Buss & Holliday, of Cleveland, for plaintiffs in error. J. W. Smallwood and Chas. S. Sheppard, both of Cambridge, for defendants in error. Harold H. Gorman, Frank J. Merrick, and John L. McChord, all of Cleveland, amici curiæ. MATTHIAS, J. Three questions are presented by the record in this case: First, has a municipality power to require the owners' of automobiles, used for private and not for commercial purposes, to pay a license fee as a prerequisite to the use of such motor vehicle on the streets of such municipality? Second, are the fees exacted by the ordinance in question license fees, or do they constitute an excise tax? Third, if they constitute an excise tax, are Ohio municipalities authoriz ed to exact and collect the same? 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, unless a license is obtained, and fixes the fee which is required to be paid-the owner of a motor pleasure vehicle or motor truck, used for any purpose whatever, except carrying passengers for hire, being required to pay annually 25 per cent. of the amount paid to the state of Ohio. It provides that the money paid into the treasury from such license fees shall be credited to the fund known as the safety fund, and shall be first applied to the expense of issuing the license and furnishing tickets or checks, and that what remains, if any, "shall be transferred to the service fund and be used for the cleaning, the maintenance and repair of the streets and avenues of the city of Cambridge, Ohio." The ordinance recites, as reasons for the emergency character thereof, that an increase in the police force is necessary by reason of the increased traffic on the streets, "thereby imposing upon the city an additional expenditure of money, which, under the law of taxation, it is unable to meet." It also recites that, by reason of the increased traffic, the streets have become filthy and un- Counsel for the municipality claim authorsanitary, and thereby necessitate a large ex-ity is conferred to enact and enforce the propenditure of money for the purpose of cleaning them, that the funds available for that purpose are inadequate, and, further, that, "by reason of the increased traffic, * * said streets and avenues in many places have become worn and out of repair and in a dangerous condition for public travel, and the same has been caused, not only by the ordinary use and traffic by said vehicles aforesaid, but by the reckless driving and disregard of the traffic laws, rules, and regulations." It is further recited that the "funds from which are paid the police force of said city of Cambridge, Ohio, which police force is wholly inadequate, are now exhausted, and said council has no means to relieve said situation; neither is there money in the fund for cleaning and repairing the streets and avenues," etc. Plaintiff is the owner of a pleasure motor vehicle, and resides in the city of Cambridge, which is not a charter city. Issue was made by the pleadings, under which evidence was heard with reference to the necessity of additional police protection, with reference to the condition of the streets of the city of Cambridge, and also with reference to the amount of money that would be raised by the enforcement of the provisions of the ordinance in question, from which it appears that the expense of issuing licenses would not be more than $400, and that the fees that would be collected would amount substantially to $9,000. The action was heard on appeal by the Court of Appeals, which refused the injunction and dismissed the petition. Finding its visions of such ordinance by section 3632, General Code. That is one of the sections of the General Code containing the enumeration of the powers conferred upon municipal corporations, and for the exercise and enforcement of which council may provide by ordinance. The portion thereof necessary in the consideration of this case is as follows: "To regulate the use of carts, drays, wagons, hackney coaches, omnibuses, automobiles, and every description of carriages kept for hire or livery stable purposes; to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business there on." It is contended by plaintiffs in error that this provision authorizes the municipal council to license and regulate only vehicles which use the street for the purpose of soliciting or transacting business, and this contention is supported by the Court of Appeals of the First Appellate District in the case of Crane v. City of Middletown, 4 Ohio App. 130, 21 Ohio Cir. Ct. R. (N. S.) 173, and it was with the judgment in that case that the Court of Appeals in the instant case found itself in conflict. In the determination of the question we find ourselves in accord with the decision of the Court of Appeals in the City of Middletown Case. We are led to that conclusion, not only by reason of the language of section 3632, General Code, in its present form, but also by the history of the legislation. The first part of the section was formerly embraced in section 1692, Revised Statutes 1897, and conferred authority to regulate all vehicles kept for hire or livery stable purposes, but subsequently the section, then subdivision 9 of section 1536-100, Revised Statutes, was amended by adding the following: "To license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon." Act Oct. 22, 1902 (96 Ohio Laws, p. 23). It is quite apparent that this amendment was made for the purpose of extending the power of regulation and including therein vehicles which were not described in the sec tion as it previously existed. By its express provisions it now includes, not only persons who solicit and transact business on the streets, but also persons who use vehicles on the streets. [1] But does the ordinance in question provide for the payment of a license fee, or does it exact the payment of an excise tax? That there is a distinction must be conceded; that such distinction has sometimes been disregarded seems apparent. Licensing and regulating are an exercise of the police power, while the exaction of an excise tax is an exercise of the taxing power. This distinction was clearly made by Judge Ranney in the case of Mays v. Cincinnati, 1 Ohio St. 268, where he said (page 273): "A license may include a tax, or it may not. If the exaction goes no further than to cover the necessary expenses of issuing it, it does. not; but, if it is made a means of supplying money for the public treasury, we agree with the court in State v. Roberts, 11 Gill & Johns. 506, that it is a tax is too palpable for dis cussion."" In that case it was held that when the sum demanded is used as a means of supplying the public treasury it constitutes a tax. Many decisions of other states might be cited wherein this same distinction between license fees and excise taxes is consistently recognized and applied. It would seem unnecessary to go further than the decision of this court in the case of Saviers v. Smith, Secy. of State, 101 Ohio St. 132, 128 N. E. 269, and the more recent cases of Fisher Bros. Co. v. Brown, Secy. of State, 111 Ohio St. 602, 146 N. E. 100, and Foltz Grocery & Baking Co. v. Brown, Secy. of State, 111 Ohio St. 646, 146 N. E. 97. The entire theory of the Saviers Case and the subsequent cases referred to, and the basis of the decision of this court in those cases, was that the act of the Legislature in question was one imposing an excise tax upon the privilege of operating motor vehicles, because the proceeds thereof were to be used for the purpose of the maintenance and repair of roads. In the opinion in the Saviers Case, at pages 135 and 142 (128 N. E. 270, 272), it was said: tenance and repair of the public roads. The The conclusion cannot be escaped that the whole purpose of the ordinance in question here was that of the collection of revenue. In the city of Cambridge there are about 2,000 automobiles and 400 motor trucks. Con cededly but $400 of the $9,000 that would be raised would amply cover the expense of the issuance of such license, and, by the express terms of the ordinance itself, it is provided that all of said funds above that required for the issuance of such license, furnishing the tags, checks, etc., "shall be transferred to the service fund and be used for the cleaning, the maintenance and repair of the streets and avenues of the city of Cambridge, Ohio." The power to license was undoubtedly conferred only as an incident to the pow er to regulate. The basis of the decision of the Court of Appeals, as stated in its opinion, is that the amount that will be produced by the exaction of the prescribed fee will not exceed the amount required to pay the expense of issuing licenses and the expense of keeping the streets clean and repairing the damage caused by the use of automobiles upon the streets. The provision, a part of section 3675, General Code, that "all moneys and receipts, in any municipal corporation, which are derived from the enforcement of any ordinance or law requiring the payment of a vehicle license fee, shall be credited and paid into a separate fund, which fund shall be known as the public service street repair fund," does not serve to confer any power in addition to that conferred by the provisions of section 3632, General Code, which does not authorize 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 regraised for a specific object, namely, the main-ulating the use of such vehicles, nor in any |