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This corporation refused to pay, and the mitted to do any business in the state. Secstate, through its district attorney and at- tion 30 of the act of 1901 provided that, torney general, commenced this suit for the upon payment of all taxes, etc., due under purpose of forfeiting its right to remain in the law, the secretary of state was to isthat state unless and until it paid the sue a certificate acknowledging the fact, for money under the statute of 1902.
which the corporation was to pay a stated
fee; and until the certificate was received Messrs. Thomas Thacher, Charles W. from the secretary of state by the corporaWaterman, Joel F. Vaile, and William W. tion it should not exercise any corporate Field for plaintiff in error.
powers or do any business in the state, as Mr. N. C. Miller for defendant in error.
provided for by the act of 1897.
The result of these statutes was that the Mr. Justice Peckham, after making the foreign corporation, upon filing the proper foregoing statement, delivered the opinion papers and paying the statutory fees and of the court:
obtaining the certificate to that effect from It is conceded that the corporation has the secretary of state, obtained the right to paid all its indebtedness for taxes or other- enter and do business in Colorado. The act wise to the state of Colorado, except the of 1901 did not increase the amount of the amount demanded under the above-men exaction for entering and doing business tioned law of 1902, and that it has obeyed in the state, but simply provided for a cerall the laws of the state with that exceptificate, acknowledging payment, from the tion. It is urged, however, upon the part secretary, and it imposed the payment of a of the corporation, that, by its admission small fee for such certificate. The right obinto the state, with its right to do business tained was a right to enter the state and therein by the payment of the amount of do business therein as a corporation. It money required for such purpose under the
was also subject by statute to the liabilithen-existing law, a contract between the state and itself was thereby made that it ties, restrictions, and duties which were or
might thereafter be imposed upon domestic should be permitted to remain
to remain therein
corporations of like character. Domestic during the term of life which the state by law allowed to allowed to corporations creat- corporations at that time had the right to
a corporate existence of twenty years. ed by it (which was twenty years),
These provisions of law, existing when without being again subjected to further the corporation applied for leave to enter exactions of money for what it had once the state, made the payment required, and paid for, viz., the right to remain and received its permit, amounted to a contract transact business in that state. Undoubt that the foreign corporation so permitted to edly, if the corporation violated the laws of
come in the state and do business therein, the state properly applicable to it, or if while subjected to all, should not be subotherwise it gave just cause for its expul-jected to any greater, liabilities, restricsion, it could not insist upon such a con- tions, or duties than then were or thereafter tract as a defense.
might be imposed upon domestic corporaIt is also conceded on behalf of the cor- tions of like character. poration that it is not entitled to any ex
A provision in a statute of this nature emption from taxes which the state of Col subjecting a foreign corporation to all the orado can properly impose upon persons or liabilities, etc., of a domestic one of like corporations within her borders.
character must mean that it shall not be Having obtained permission to enter the subjected to any greater liabilities than are state and do business as above mentioned, imposed upon such domestic corporation. the question, aside from that of the extent The power to impose different liabilities was of the term, is whether any contract be with the state at the outset. It could make tween the state and the corporation arose them greater or less than in case of a dounder these laws and the facts above men- mestic corporation, or it could make them tioned.
the same. Having the general power to do In 1899, when this (foreign) corporation as it pleased, when it enacted tnat the forapplied for a permit to enter and do business eign corporation, upon coming in the state, in the state, the laws of Colorado only grant- should be subjected to all the liabilities of ed such application on the payment of a cer: domestic corporations, it amounted to the tain fee named in the statute of 1897, which same thing as if the statute had said the was payable upon filing its certificate of in- foreign corporations should be subjected to corporation in the office of the secretary of the same liabilities. In other words the state of Colorado, and until that payment liabilities, restrictions, and duties imposed was made and the certificate filed nt such upon domestic corporations constitute the corporation was permitted to have or exer- measure and limit of the liabilities, restriccise any corporate powers, nor was it per-' tions, and duties which might thereafter
be imposed upon the corporation thus ad- A discussion as to the name or nature mitted to do business in the state. It was of the tax imposed by the act of 1902, or not a mere license to come in the state and the former acts, is wholly unimportant with do business therein upon payment of a sum reference to the view we take of this case. named, liable to be revoked or the sum in- After the payment of the money and the creased at the pleasure of the state, with receipt of the permit to enter and do busiout further limitation. It was a clear con- ness in the state the corporation could not, tract that the liabilities, etc., should be the as we have said, be thereafter further taxed same as the domestic corporation, and the than was the domestic one. The tax on the same treatment in that regard should be latter under that act is the same in submeasured out to both. If it were desired stance and effect as that upon the foreign to increase the liabilities of the foreign, it corporation, but it is for only one half could only be done by increasing those of thereof in amount. The domestic must pay the domestic, corporation at the same time “an annual state corporation license tax," and to the same extent. Such being the contract, how long was it state license tax” annually. The means of
while the foreign corporation must pay "a to last? Only until the state chose to al. I enforcing payment are not different, and ter it? Or was it to last for some definite
! such means are stated in § 66 of the act of time, capable of being ascertained from the
1902. terms of the statutes as they then existed ?
Whatever be the name or nature of the It seems to us that the only limitation imposed is the term for which the corporation tax, it must be measured in amount by the would have the right to continue in the same rate as is provided for the domestic state as a corporation. One of the restric-institution, and, if the latter is not taxed tions as to domestic corporations is that in that way, neither can the state thus tax which limits their corporate life to twenty the foreign corporation. years, unless extended as provided by law. It is unnecessary to refer to the many The same restriction applies to the foreign cases cited by both parties hereto. Some of corporation. Iron Silver Min. Co. v. Cowie, them refer to the question as to the nature 31 Colo. 450, 72 Pac. 1067. Counsel for the of such a tax, while others decide, upon the state concedes that the corporation was ad- facts appearing in them, whether there was mitted for a period of twenty years, but a contract or not. As already stated, the subject to the power of the state to tax. name of the tax or its kind is not imporDuring that time, therefore, the contract tant so long as it is plain that the act of lasts. This is the only legitimate, and we 1902 increases the liabilities of the foreign think it is the necessary, implication aris- corporation over those which obtain in that ing from the statute. This is not an exemption from taxation, of contract, while the principle that a con
of the domestic. And in regard to the cases it is simply a limitation of the power to tax beyond the rate of taxation imposed tract may arise from a legislative enactupon a domestic corporation. Instead of ment has been reiterated times without such a limitation the act of 1902, already number, it must always rest for its supreferred to, imposes a tax or fee upon or ex- port in the particular case upon the conacts from the foreign corporation double struction to be given the act, and in this the amount which is imposed upon or ex- case we are not greatly aided by the former acted from the domestic one. The latter is cases regarding vaxation and legislative congranted the right to continue to do business tract. We may, however, refer to the folupon the annual payment of 2 cents upon lowing out of many cases regarding coneach $1,000 of its capital stock, while the tracts as to taxation: Miller v. New York, former must pay 4 cents for the same right. 15 Wall. 478, 21 L. ed. 98; New York, L. E. This cannot be done while the right to re- & W. R. Co. v. Pennsylvania, 153 U. S. main exists. It is a violation of the obli- 628, 38 L. ed. 846, 14 Sup. Ct. Rep. 952; gation of an existing_valid contract. Home Powers v. Detroit, G. H. & M. R. Co. 201 of the Friendless v. Rouse, 8 Wall. 430, 19U. S. 543, 50 L. ed. 860, 26 Sup. Ct. Rep. L. ed. 495.
556. Nor is this a case where the power given
Holding that the act of 1902 impaired the by the state Constitution to the general assembly to alter, amend, or annul a char- obligation of the contract existing between ter is applicable. The act does not alter the corporation and the state, and is therethe charter or annul or amend it. It sim- fore void as to the corporation, it becomes ply increases the taxation which, up to the unnecessary to decide the other questions time of its enaotment, had been imposed on discussed at the bar. all foreign corporations doing business in The judgment of the Supreme Court of the state.
Colorado is reversed and the case remanded
to that court for further proceedings not consenting to a consolidation of several inconsistent with this opinion.
street railroads, including the Euclid avenue Reversed.
and Garden street lines, on condition that but one fare should be charged for a con
tinuous ride. The CHIEF JUSTICE, Mr. Justice Harlan, Mr. Justice Holmes, and Mr. Justice Moody Street railway-title to property after ex dissent.
piration of franchise.
7. The title to the rails, poles, and other appliances for operating the Garden
street branch of the Cleveland street railCLEVELAND ELECTRIC RAILWAY COM-way system remaining in the various PANY, Appt.,
streets at the expiration of its franchise is
in the railway company which has been CITY OF CLEVELAND and Forest City operating the road. Railway Company. (197.)
Constitutional law-due process of law. CITY OF CLEVELAND and Forest City property of a street railway company re:
8. The right to take possession of the Railway Company, Appts.,
maining in the streets at the expiration of
its franchise cannot, consistently with due CLEVELAND ELECTRIC RAILWAY COM-process of law, be conferred by municipal PANY. (321.)
ordinance upon another street railway com
pany. Street railway-franchise-construction. 1. Municipal grants of street railway
[Nos. 197, 321.] franchises must be strictly construed. * Street railways—franchise-term.
Argued November 12, 13, 1906. Decided 2. Municipal ordinances extending the
January 7, 1907. life of the franchise of the Euclid avenue or maie mine if the belevelandestreeta prailway CROSS, APPEALS from the Circuit Court to a road with a separate route and a dif- District of Ohio to review a decree adjudgstreet branch, on the theory that the latter ing that a street railway franchise has ex. road became a part of the main line because pired and enjoining the municipality from it was permitted to run in connection with attempting to put another street railway such main line, and to use a portion of that company in possession of the rails, poles, line to reach a public square.
and other appliances remaining in the city Street railways—franchise-term.
streets. Affirmed. 3. The words "main line" in municipal See same case below, 137 Fed. 111. ordinances granting respectively the right to construct a small extension to the Garden
Statement by Mr. Justice Peckham: street branch of the Cleveland street rail
This bill was filed in the United States way system and the right to lay a second circuit court for the northern district of track on a portion of that branch, to terminate with the expiration of the grant Ohio on the 21st of March, 1905, against the for the main line, must be deemed to refer city of Cleveland and the Forest City Railto the rest of the Garden street branch, and way Company, for the purpose of obtaining not to the Euclid avenue line.
an injunction to restrain the city from Street railways-franchise--term.
carrying out a certain ordinance relating to 4. A street railway franchise made to the Garden street branch of complainant's terminate with the grant to the main line railroad, passed by the city council January is to be measured by the grant as it then 11, 1904, on the ground that it was null exists, and not by any subsequent exten- | and void, because it impaired the obligations sion of the term which may be granted.
of various contracts which the complainant Street railway–franchise--term.
5. A grant of a street railway franchise alleged had been entered into between the by the Cleveland common council, to be complainant and the city, providing for the valid "until the expiration of the grants for use until either July 13, 1913, or July 1, said company's tracks on said Quincy street 1914, of certain streets by the railroad east of Lincoln avenue, to wit: July 13, owned by the complainant, and known as 1913,"—is not a grant extending to that the Garden street or Central avenue branch, date, where the Quincy street grants were and hereafter called the Garden street then in fact to terminate at an earlier date. branch.
The ordinance granted to the Street railway–franchise-term.
Forest City Railway Company (a stranger 6. An extension of the time for the to the original grants) the renewal right to termination of the franchise of the Garden maintain and operate the existing street street branch of the Cleveland street railway system to the date set for the termi. railroads through the streets named there. nation of the Euclid avenue or main line in, which were the same streets theretofore was not effected by a municipal ordinance granted to the Garden street railroad. The
*Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, 40.
right was granted upon condition that the The record shows that there are, among grantee should pay to the owners of the others, two lines of railroad belonging to poles and other property being in the the complainant, one of which is known as streets an amount to be agreed upon there- the Euclid avenue, sometimes called the for, or such sum as should be finally adjudi. “main” line, and the other the Garden street cated upon by a court. A temporary re-branch. Both lines run from east to west straining order was granted. The defend through the city in different, though genants made separate answers, denying the erally parallel, streets up to the point of existence of any contract between the com- their intersection at Erie street and Euclid plainant and the city upon the subject of avenue (or Prospect street) from which the Garden street branch subsequent to point west, for a short distance, to the pubMarch 22, 1905, and the Forest City Rail- lic square and Water street, the Garden way Company claimed under the ordinance street branch is authorized to use the Euclid of January, 1904, the right to take posses- avenue tracks. sion of such Garden street branch after The following (among many other) ordiMarch, 1905, and to use the tracks of the nances and resolutions of the council of the complainant's railroad. The case was heard / city were put in evidence on the trial, toupon the pleadings and various ordinances gether with the various resolutions of comand resolutions of the council of the city. plainant, in which it accepted such ordi
After hearing, a decree was made by the nances and resolutions. These constitute circuit court (137 Fed. 111) which decreed the case between the parties, and there is that the right claimed by the complainant no contradictory evidence. Complainant to operate its Garden street branch railroad contends that the Garden street grant must in the streets named in the bill expired on be measured in time by that provided for the 22d day of March, 1905. It was also de- the termination of the Euclid avenue grant. creed that the ordinance of January 11, The ordinances and resolutions relating to 1904, was inoperative, so far as it assumed the Euclid avenue line will be first stated. to confer upon the defendant the Forest The first is a resolution which granted to City Railway Company any legal right to the East Cleveland Railroad Company, a take the tracks, poles, wires, and appliances corporation incorporated February 28, 1859, erected and maintained by the complainant for that purpose, the right to construct and in the streets, because such ordinance operate a railroad from a point on Prospect authorized the taking of the property of street at its intersection with Erie street, complainant without due process of law. to the eastern terminus of Prospect street, The railroad company, therefore, was en which grant was for the term of twenty joined from interfering with the complain- years from September 20, 1859. The comant in the peaceable possession of the prop- pany, having obtained the necessary consents erty mentioned, and the city was enjoined of the property owners along the line, duly from attempting in any manner, by virtue located, constructed, and operated the road of the ordinance, to put the defendant the under that resolution and within a short Forest City Railway Company into pos- time after it was authorized so to do. session of the same. From the decree the This was the commencement of what is complainant and both of the defendants ap- known as the Euclid avenue, or sometimes pealed directly to this court, as involving (after 1868) the main line of one of the questions arising under the Constitution of roads owned now by the complainant. the United States. The complainant's ap- By ordinance, April 15, 1862, the company peal is No. 197, and is from that portion of was authorized to extend its line from the the decree which adjudges that the right of intersection of Erie and Euclid streets west the complainant to maintain and operate its to the public square. Garden street branch railroad expired September 15, 1879, an ordinance was on the 22d of March, 1905. The cross ap- passed which granted a renewal of the peal of the defendants is from that portion franchise to the East Cleveland Railroad of the decree which enjoins the Forest City Company to maintain and operate its whole Railway Company from taking possession Euclid avenue street railroad as far as of the property described, and which also Willson avenue, on the east, for a period of enjoins the city from in any manner at- twenty-five years from September 20, 1879 tempting to put that company into posses- (September 20, 1904). This ordinance sion thereof. It thus appears that the makes no reference to the Garden street whole controversy turns upon the question line, which had then been built and was whether the right of the Garden street rail in operation, and does not mention any of road terminated March 22, 1905, or lasts un- the streets through which that line passed, til July 1, 1914, or possibly only until July although the Garden street line had the 13, 1913.
right, under the ordinance of 1868, hereinafter mentioned, to use the tracks of the Fairmount street. Nothing west of Willson Euclid avenue line from the point of junc- avenue is included in that grant. tion therewith westerly to its terminus. On May 13, 1889, a resolution was adopt
On the 4th of April, 1883, another ordi- ed, which authorized and required the railnance was passed, granting to the East road company, “as soon as practicable, to Cleveland Railroad Company the right to extend the use of such motive power over extend, lay, and operate its double track its main and Cedar avenue lines to the on Euclid avenue from the west line of westerly termini thereof." This included Willson avenue easterly to the east line of those lines west of Willson avenue, and unFairmount street, the right granted to termi- der the ordinance and resolution the Euclid nate on the 20th of September, 1904, “with avenue line was changed to an electric the said renewal of that part of said com- street railroad within the times mentioned pany's line lying west of Willson avenue." in the ordinance and resolution. Ordinance of September 15, 1879, above re- There was no extension of time granted ferred to.
by the resolution of 1889 for the terminaBy ordinance of March 15, 1886, another tion of the grant on any portion of the Eugrant was made to the Euclid avenue line clid avenue line. east of Fairmount street, which grant was
On July 17, 1893, the right was given to to cease and terminate upon the 20th of the company to extend its road at the inSeptember, 1904, “as provided for said com- tersection of Prospect and Erie streets to pany's tracks in Euclid avenue, west of the intersection of Prospect and Ontario Fairmount street."
streets, and also at the intersection of SuIn order to change from animal power to perior and Seneca streets, thence along electricity an ordinance was passed July Seneca, Lake, and Ontario streets, and the 13, 1888, granting to the East Cleveland council imposed upon it the duty, if reStreet Railway Company the right to con- quired by the council, of operating its cars struct and operate an electric street railway over the entire length of any of the lines. on Euclid avenue from Willson avenue east-Other duties were imposed upon it. Comerly to the city limits, and on Cedar ave-plainant contends that some part of this nue from a point near the Cleveland & ordinance refers to a portion of the Garden Pittsburg Railway Company's right of way street extension, and that it requires the in that avenue, easterly to a point about operation of all the Garden street cars 1,500 feet east of Fairmount street. The over these tracks, and the grant is to terpermission was given on the condition that minate at the time mentioned in the 1888 the grant was to be exercised within six ordinance,- July 13, 1913. months from the passage of the ordinance.
The above list includes the material orThe grant was also upon condition that if dinances and resolutions pertaining particthe company, from any cause, should fail ularly to Euclid avenue. to extend the electric system over its en
After the Euclid avenue line had been tire main and Cedar avenue lines within built the council, on the 14th of January, eighteen months from the date of the pas. 1868, passed a resolution granting its consage of the ordinance, then the ordinance sent to the East Cleveland Street Railroad should be void. Nothing in the ordi- Company to lay down its tracks from the nance was to be construed as authorizing intersection of Prospect and Brownell any increase in the fare for transportation streets, “to connect with the main line of ove any portion of the company's line. its railroad,” running thence through GarThe oth section of the ordinance stated that den and other streets to and across Willson the privilege of constructing the electric avenue, to the eastern boundary of the city, system, as provided in the ordinance, was during the period of twenty years. Willgranted “in consideration of the improved son avenue was then the eastern boundary facilities hereby contemplated and the of the city. The road could continue to use large expenditures necessary to secure the and occupy the streets, avenues, and public same, and shall be in force for the period grounds over which its main line was then of twenty-five years from and after the date constructed and operated westerly from the of the passage of this ordinance, upon its junction (at Brownell and Prospect streets) main and Cedar avenue lines.” The right of said road with the main line to its to change to electric power, as given by the westerly terminus, for the same length of foregoing ordinance, was confined, it will time. be observed, to that portion of the Euclid This Garden street line was thereafter avenue line east of Willson avenue, and on built, and it is asserted that it was the inCedar avenue to that part lying between the ception of a new and separate street railCleveland & Pittsburg Railway Company's road. It has been extended at various right of way and a point 1,500 feet east of times since, and forms, with its various ex