is thereby evinced to the effect that in taxation of subjects other than property, an exemption up to $200 in value would be regarded as for the equal protection and benefit of the people. The exemption must be equally for all, and the rate per cent. must be the same on all estates. There can be no discrimination in favor of the rich or poor. All stand upon an equality under the provisions of the constitution, and it is this equality that is the pride and safeguard of us all."

The above announcement is in harmony with the utterances of the federal courts. In State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663, a law was under consideration which imposed a tax on the franchise, capital stock, business, and profits of the complaining corporations. One of the corporations was insolvent and in the hands of a receiver, its earnings not being sufficient to pay any of the interest on its bonded debt or anything beyond its necessary expenses for operation and repairs. Another of the companies met all of its expenses and interest on a large debt, and declared large dividends. Each owned a large amount of tangible property, and each possessed a franchise which was held, as in Ashley v. Ryan, 49 Ohio St. 525, 31 N. E. 721, to be valuable. They were both said to be alike subject to the law, for the reason that insolvent corporations could no more escape taxation than insolvent individuals, many of whom pay taxes on realty which is mortgaged in excess of the value of all their property, both real and personal, the court adding that no state has ventured to establish the principle of permitting its visible tangible property to escape taxation, relying solely on a tax imposed on the individual on the basis of his estimated wealth in excess of his debts. In speaking of the insolvent company, Mr. Justice Miller said (92 U. S. 606 [23 L. Ed. 663]):

"Concede for the present that the capital stock is sunk and is of no value; concede that the funded debt of the company has at present no market value, or is unsalable-there remains what is valued as worth over $2,600,000 of real and personal property, which, like all other property of individuals or corporations, ought to pay its proportion of the public burdens. There also remains the value of the franchise, which is not destroyed by the circumstance that the road does not pay interest on its debt. Does anybody believe that this debt is of no value-that the holders of it attach no value to this franchise? Are they willing to give up the right to operate the road, to receive freights and fares, to endeavor to make it pay something more than the mere value of the personal property of the track, the depots, the grounds, the rolling stock, and other tangible property? Is it supposed by any one that they intend or will ever sell these separately or apart from the right to use them as a railroad? Why do not the bondholders sell all these things under their mortgage at auction as a man would sell town lots and household furniture, and horses and carriages? The reason is too clear to escape observation. It is because in the case of the railroad there is attached to all this property, and goes with it, a privilege, a right to use it through the whole extent of the richest counties of Illinois, in transporting persons and property, in a manner which adds immensely to its value when considered as so much iron, so much land, and so much personal property. By virtue of this privilege or franchise, this is all aggregated into a unit, well adapted to make money by its use in that way, with a chartered right to use it for that purpose. It is this franchise which the Legislature of IIlinois intended to tax, which it had a right to tax; and in taxing it committed no injustice, if it was fairly assessed, though the corporation which holds it may be so utterly bankrupt that it must necessarily pass from it into other hands. In those hands, disembarrassed of its overweight of debt, 203 F.-35

who shall say that it is not worth $2,000,000? And who shall say that such is not the real value now of this franchise?"

See, also, Flint v. Stone Tracy Co., 220 U. S. 165, 167, 168, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312. We think it can be confidently asserted that the Supreme Court of Ohio meant by the language employed in the Southern Gum, Company Case that only those excise tax laws, the result of whose operation is generally confiscatory and oppressive, are unconstitutional, and that it did not intend to say that a law, general and uniform in its operation, is invalid, because in exceptional cases it may impose a hardship.

The General Assembly was empowered not only to impose a tax on the gross receipts of the respective plaintiffs, as stated, but also to direct the application of the tax when collected to purposes of general revenue or any other purpose authorized by law (Ashley v Ryan, 49 Ohio St. 525, 31 N. E. 721; State v. Ferris, 53 Ohio St. 314, 41 N. E. 579, 30 L. R. A. 218; State v. Guilbert, 70 Ohio St. 254, 71 N. E. 636, 1 Ann. Cas. 25). Both of the plaintiffs require governmental protection and the exercise of its supervisory power, and each should in justice bear its fair share of the government's burden. Were either of them to escape taxation on account of its exceptional condition, all other unprofitable corporate enterprises would likewise be relieved, and thus a practical system of taxation would be rendered impossible, and the state be deprived of the power to meet its legitimate expenses.

The claim is made that the law in question is discriminatory in that it (1) does not include all public utilities engaged in business in Ohio, and (2) does not operate uniformly among the utilities named-the tax, for instance, imposed on the gross intrastate earnings of street suburban and interurban railroad companies being but 1.2 per cent. and on express and telegraph companies but 2 per cent. The claim is not supported by the decisions, state or federal. The inheritance tax law under consideration in Hagerty v. State, 55 Ohio St. 613, 45 N. E. 1046, providing for exemptions in the amount of $200, was assailed as discriminatory as among collateral kindred, the tax being imposed upon the value of the property received by some, and not upon that received by others. The law was sustained because the power exercised by the General Assembly in the enactment of the law was legislative and vested by the legislative grant as expressed in the first section of the second article of the Constitution, and, as the right to receive property by inheritance is not guaranteed by the Constitution, that instrument prescribes no limitation upon the power of the General Assembly to designate the persons who may thus receive. The discrimination was based upon and held justified by the fact that there are degrees in collateral kinship. In commenting on that case in State v. Guilbert, the state court approved the language employed in Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037, regarding a similar law, that the states may tax the privilege of taking property by devise or descent, may discriminate between relatives, and between them and strangers, and grant exemptions, and are not precluded from this power by the provisions of the respective

state Constitutions regarding uniformity and equality in taxation. In the Guilbert Case, which also involved an inheritance tax law, the conclusion was reached (and we understand it to be the statement of a rule applicable to excise taxes) that:

"When it is determined, as was determined in the Ferris Case that the tax is an excise tax, and as in the Hagerty Case that the authority to impose the tax is conferred by the general grant of legislative power, then the selection of the subjects on which the tax will be imposed must be within the legislative competency."

Many illustrations may be found in the statutes and reported cases of the rule thus announced. In Marmet v. State an ordinance was upheld imposing a license fee on the owners of all vehicles used upon the streets of Cincinnati excepting farmers marketing the products of their own farms. In the Adler Case the tax on the business of trafficking in liquors was sustained, although it did not bring within its provisions the manufacture of intoxicating liquors or the sale of them by the manufacturer in quantities of one gallon or more at any one time. The line was drawn between the distillery and the brewery on the one hand and the saloon on the other. In Western Union Telegraph Co. v. Mayer, a corporation franchise tax imposed on foreign express and telegraph companies and on no other public utility companies was sustained. Section 2780-17, Rev. St., imposed an excise tax for state purposes only of 1 per cent. per annum upon the gross receipts of steam railroad, street, and interurban railroad, express, telegraph, and telephone companies when engaged in business either wholly or partially within the state, but it did not apply to water transportation companies, unless the whole of their business was done within the state. Under the Nichols Law (section 2778a, R. S.), the property of express, telegraph, and telephone companies was subjected to taxation, the value of such property being determined not merely by the consideration of the visible property, as in the case of all other corporations whose property is taxed, but by the value of the entire capital stock and by such other evidence and rules as would enable the boards fixing such valuation to arrive at the true value in money of the entire property of the companies in the state. A tax levied on such valuation was upheld in State v. Jones, 51 Ohio St. 492, 37 N. E. 945, and Adams Express Co. v. Ohio, 166 U. S. 185, 17 Sup. Ct. 604, 41 L. Ed. 965. Notwithstanding the establishment of the validity of that method of taxation, it was not extended to any other corporations in the state. The General Assembly has seen fit to determine, in the enactment of the law now before us, what occupations or lines of industry are public service enterprises and invested with those attributes which pertain to public interest or public service, and has omitted, for instance, grain elevator companies, warehousing, stockyards, ferries, bridge companies, and innkeepers; but it had a right so to do, and the selection made by it will not be disturbed by the courts unless the determination of the legislative body was clearly arbitrary. The law imposes no burden upon one class of utilities from which others similarly situated are exempt, and, as it does not affect any right of the plaintiffs differently from that of others in the class to which they belong, it is not

obnoxious to the Constitution. Snell v. St. Ry. Co., 60 Ohio St. 269, 54 N. E. 270; State v. Guilbert, 70 Ohio St. 229, 245, 71 N. E. 636, 1 Ann. Cas. 25, 37 Cyc. 746. The same rule is recognized by the federal courts. In Kane v. Erie R. Co., 133 Fed. 681, 685, 67 C. C. A. 653, 657, 68 L. R. A. 788 (C. C. A. 6), in which a provision of an Ohio statute relating to railways was involved, it was said:

"The doctrine is well settled that the General Assembly, in the absence of an applicable prohibition, has power to classify subjects of legislation, conferring rights or imposing burdens on the created classes, according to the views of what is just and expedient and will promote the general welfare, subject only to the limitation that there must be some reasonable ground for the classification made."

The rule so announced has been recognized in Magoun v. Illinois Trust & Savings Bank, supra, and in Home Ins. Co. v. New York, 134 U. S. 594, 10 Sup. Ct. 593, 33 L. Ed. 1025, in each of which a statute was under consideration which involved an excise tax. Other cases in point are Kentucky Railroad Tax Cases, 115 U. S. 321, 6 Sup. Ct. 57, 29 L. Ed. 414; Bell's Gap Railroad Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 533, 33 L. Ed. 892; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679; Brown-Forman Co. v. Kentucky, 217 U. S. 563, 30 Sup. Ct. 578, 54 L. Ed. 883; Southwestern Oil Co. v. Texas, 217 U. S. 114, 30 Sup. Ct. 496, 54 L. Ed. 688; Adams Express Co. v. Ohio, 165 U. S. 194, 228, 17 Sup. Ct. 305, 41 L. Ed. 683. The law is well expressed in Bell's Gap Railroad Co. v. Pennsylvania, 134 U. S. 237, 10 Sup. Ct. 535, 33 L. Ed. 892, where it is said:

"The provision in the fourteenth amendment that no state shall deny to any person within its jurisdiction the equal protection of the laws was not intended to prevent a state from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state Legislature, or the people of the state in framing their Constitution."

[3] In view of what has heretofore been said and the authorities cited, it is clear that there is no mèrit in the contention that, because certain utilities of a given class pay one rate of tax and others of another class a different rate, the law is wanting in uniformity of operation.

Another insistence is that the act, as applied to railroads, lays a burden on interstate commerce. The tax by express provision is levied on gross intrastate earnings only. Those derived wholly from interstate business and business done for the federal government are specifically excluded in computing the amount to be paid. The rule announced in Ratterman v. Western Union Telegraph Co., 127 U. S. 424, 425, 8 Sup. Ct. 1127, 32 L. Ed. 229, is that where the subjects of taxation can be separated, so that that which arises from interstate commerce

can be distinguished from that which arises from commerce wholly within the state, the state will be permitted to collect that arising upon the latter. As the gross intrastate earnings can be readily separated from all others, the law is not open to the objection urged. Ratterman v. Express Co., 49 Ohio St. 618, 32 N. E. 754; Express Co. v. State, 55 Ohio St. 69, 81, 44 N. E. 506; Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 31, 32, 30 Sup. Ct. 190, 54 L. Ed. 355; Kehrer v. Stewart, 197 U. S. 60, 67, 25 Sup. Ct. 403, 49 L. Ed. 663.

[4] The further charge is made that, inasmuch as plaintiffs each pay a property tax, the tax provided by the act in question is not permissible, in that it denies them the equal protection of the law by subjecting them to double taxation. This cannot be true, because the exaction of 4 per cent. of the gross intrastate earnings is not a property tax, but is an excise tax, the amount of which is fixed and measured by the amount of such earnings. Double taxation in a legal sense does not exist, unless the double tax is levied upon the same object within the same jurisdiction. Bradley v. Bauder, 36 Ohio St. 28, 35, 38 Am. Rep. 547. The plaintiffs pay but one tax on property, and another as an excise tax. The taxation, therefore, is not double. Southern Gum Co. v. Laylin, 66 Ohio St. 596, 64 N. E. 564.

The act is also said to be unconstitutional, in that it seeks to prevent judicial inquiry into its constitutionality and enforce obedience to its terms and the administrative acts thereunder, irrespective of their validity. To sustain this claim, allusion is made to the provision for the recovery of a 15 per cent. penalty on unpaid taxes (section 103), to the power to cancel the articles of incorporation of a delinquent corporation (section 120), to the penalty imposed on any one who shall exercise or attempt to exercise any powers, privileges, or franchises under the articles of incorporation after the same are canceled (section 120), to the power to enjoin the transaction of any business by any delinquent public utility (section 123), to each day's willful failure to observe and comply with any order or direction of the Tax Commission or to perform any duty enjoined by law which the Tax Commission is authorized to administer, as constituting a separate and distinct offense (section 158), and to the provision that the holding of any section or part thereof void and ineffective shall not affect any other section or part thereof (section 160). We are not concerned with the validity or operation of any of such sections, for the reason that the pleadings tender no issue regarding them. Moreover, the penalties are clearly a separate part of the act, and, whether collectible or not, may be determined in a case involving an attempt to enforce them. Flint v. Stone Tracy Co., 220 U. S. 177, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312; Willcox v. Consolidated Gas Co., 212 U. S. 53, 54, 29 Sup. Ct. 192, 53 L. Ed. 382, 15 Ann. Cas. 1034.

We have noticed such objections made to the constitutionality of the law, as it is deemed necessary to consider. We do not find the statute to be obnoxious to either the state or the federal Constitution. It follows that the motion for an interlocutory injunction in each. case must be denied. However, the questions involved are of such importance that we assume that a review of our conclusions will be