and, being such, it is a regulation of commerce-a subject exclusively within the regulating power of congress. There seems to be no proposition more firmly established by the decisions of the United States Supreme Court than that a tax imposed by a state upon the business of interstate commerce is a tax on such commerce, and is therefore void. The difficulty arises in determining whether the tax, in a given case, is in substance a tax on commerce, or a tax affecting commerce indirectly and incidentally only, in which latter case it is not obnoxious to constitutional objection. Taxation of property employed in interstate commerce affects commerce, because it increases the expense of carrying it on, and the burden ultimately falls on the subjects of commerce; but this, as we have said, does not remove such property from the taxing power of the state. So the taxation of the franchises of domestic corporations, part of whose business may be interstate commerce, falls in part upon such commerce, but we do not understand that this in any respect qualifies the power of the state. Many cases of this kind arise under the law now under consideration, in the taxation of railroads organized under our laws. It must be assumed that the grant by a state of corporate powers carries with it special and peculiar advantages to the corporation to whom the grant is made, and it is this that justifies the taxation of corporate franchises by the state. But it has been held that the state may not tax the gross receipts of a steamship company incorporated under its laws, engaged in foreign and interstate transportation. Philadelphia & S. S. S. Co. v. Pennsylvania, 122 U. S. 326. In that case BRADLEY, J., speaking of the tax, said: "If intended as a tax on the franchise of doing business, which in this case is the business of transportation in carrying on interstate and foreign commerce, it would be clearly unconstitutional." This was regarded as a direct tax on commerce, as was the tax on all the freight carried by the Reading Railroad Company, a domestic corporation of the taxing state, which included freight brought from or carried without the state. State Freight Tax, 15 Wall. 232. But we do not understand that the state may not tax the franchises of all corporations chartered by it, by a uniform and general rule, or that such taxation would be unauthorized, as applied to a corporation engaged in interstate commerce. It could not tax the business as a distinct and separate subject of taxation, or discriminate against it.

The tax against the Pennsylvania Railroad Company, involved in this case, was distinctly a tax on its business, and that business in this state, as we have said, was exclusively interstate commerce. It has been suggested that the tax is upon the privilege it enjoys as a foreign corporation, of com

ing into this state, and here exercising corporate functions. We are not called upon to determine in this case whether the state, under the general rule that it may exclude foreign corporations from coming here, and that it is by comity alone that such corporations are permitted to exercise corporate franchises outside of the jurisdiction of origin, could lawfully exclude a foreign corporation engaged in interstate commerce from landing its freight or passengers on our shores, or at the wharves in the city of New York, or from there receiving freight or passengers. See Pensacola v. Western Union Tel. Co., 96 U. S. 1; Paul v. Virginia, 8 Wall. 168; Pembina Con. Silver Min. & Mill. Co. v. Pennsylvania, 125 U. S. 181, 22 Am. & Eng. Corp. Cas. 542; Crutcher v. Kentucky, supra. It is sufficient for this case to say that the state has not attempted to exclude the relator from doing business in this state, or withdrawn the comity under which it has been permitted to carry on its business here, and acquire real and personal estate for the transaction of its business. The relator is lawfully here, and, being here, it cannot, we think, under the authorities, be lawfully subjected by the state to a tax upon its business of interstate commerce, or for the privilege of conducting its business here. It does not relieve the tax from its objectionable character that the law of 1880 was not aimed at the business of interstate commerce specifically, but applied to all corporations engaged in transportation; nor is it material that the exemption claimed may render taxation unequal as between domestic and foreign corporations.

The same feature existed in several of the cases in which a tax by the state has been held to be void as a regulation of commerce. The answer made by the cases is that protection of the business of interstate commerce from state taxation exists under the paramount authority of the federal constitution. The cases of Fargo v. Michigan, supra, and Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 13 Am. & Eng. Corp. Cas. 365, seem to be conclusive in favor of the relator here. Both were cases of foreign corporations engaged in interstate commerce. In Fargo v. Michigan the state of Michigan sought, under a state statute, to tax the gross receipts of the corporation. In the Ferry Company Case the state of Pennsylvania, under a statute very similar to the statute of New York, sought to tax the company, a corporation of New Jersey operating a ferry across the Delaware River from the New Jersey shore to Philadelphia. The tax was nominally on the capital of the company. In both cases the tax was held by the court to be void as regulations of commerce. In the Ferry Case the Supreme Court of Pennsylvania sustained the tax on the ground that the company did business in that state, but

it was held by the Supreme Court of the United States, in a unanimous opinion reversing the decision of the state court, that, as this business was interstate commerce, it was not subject to taxation by the state.

The learned counsel for the state, who presented with much ability at our bar the argument in support of the tax now in question, places much stress on the recent cases of Western Union Tel. Co. v. Attorney-General, 125 U. S. 530, 21 Am. & Eng. Corp. Cas. 13; Massachusetts v. Western Union Tel. Co., 141 U. S. 40; Pullman's Palace Car Co. Case, 141 U. S. 18, 46 Am. & Eng. R. Cas. 236; and Maine v. Grand Trunk Ry. Co., 142 U. S. 217, 48 Am. & Eng. R. Cas. 602. The decisions in the Telegraph cases and in the Pullman Car Case were placed distinctly on the ground that the tax in these cases was imposed upon property having a situs in the taxing state, and were thus brought within the general rule that property used in interstate commerce is subject, as all other property within a state, to taxation for municipal purposes. The case of Maine v. Grand Trunk Ry. Co. was decided on the ground that the tax imposed under the statute of Maine in that case was a franchise tax upon corporate privileges conferred by the legislature of the state on the defendant corporation, and that it did not invalidate the tax because the amount was apportioned with reference to the gross receipts for transportation over its whole line, which extended beyond the state. The dissent in that case proceeded upon a different view, taken by the minority of the court, as to the character of the tax; their opinion being, in substance, that it was a tax on the business of interstate commerce. These cases do not disturb the general principle of the other cases.

Following, as we suppose, the decisions of the federal court, we are constrained to hold that the tax now under consideration is void as a regulation of commerce. The order of the general term is therefore affirmed. All concur, ‹xcept MAYNARD, J., not sitting.

A State Cannot Tax the Business of a Foreign Corporation which Consists Exclusively of Interstate Commerce. There seems to be no exact precedent in the books for the above decision. The cases passing upon the validity of a tax upon the business of foreign corporations have heretofore dealt with companies whose business consisted only partially of interstate commerce. In the above case, when it was once established that the New York statute imposed a tax upon business and not upon property, and that the relator's business consisted exclusively of interstate commerce, there was no other course but to hold that such a tax is invalid as a regulation of commerce among the states. The decision is undoubtedly sound, and comes within the spirit if not within the exact letter of the adjudications of the Federal Supreme Court. The case most analogous is Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 13 Am. & Eng. Corp. Cas. 365;

although in that case the tax was imposed upon the company's capital stock. It may be noted that in the case of People ex rel. Southern Cotton Oil Co. v. Wemple, 131 N. Y. 64, 38 Am. & Eng. Corp. Cas. 588, a decision arising under the same statute, the New York court of appeals held that a tax on the business of a foreign manufacturing corporation is not invalid as a regulation of interstate commerce, although such corporation sells the principal part of its product in other states.

LAKE ROLAND ELEVATED R. Co.

v.

MAYOR, ETC., OF CITY OF BALTIMORE,

(Maryland Court of Appeals, March 16, 1893.)

Street Railway-Power of City to Repeal Franchise. Where the public safety and convenience require it, a city may revoke a grant to a street railway company of the right to lay its tracks in the city streets, even after the tracks have been laid. The repeal of the granting ordinance gives the company no right to compensation where the tracks were laid after the mayor and city solicitor had informed the president of the company that at the first meeting of the city council an ordinance would be submitted to prohibit the laying of the tracks.

APPEAL from circuit court of Baltimore city.

Bill to restrain defendants from removing complainant's tracks on Lexington Street, in the city of Baltimore.

Ber. Carter, Wm. A. Fisher, J. N. Steele, J. E. Semmes, and F. K. Carey, for appellant.

Wm. S. Bryan, Jr., and Thos. G. Hayes, for appellees.

*

Case stated.

BRYAN, J.-It had been for a long time recognized as the law that the mayor and city council of Baltimore have full and complete control over the streets and highways of the city. It had been considered, however, that certain uses could not be made of them without the sanetion of an act of the General Assembly. For this reason the legislature saw fit to enlarge the corporate powers of the city. The act of 1890, c. 370, entitled "An act * giving the mayor and city council of Baltimore authority to regulate the use of the streets, lanes, and alleys of said city by railway or other tracks," etc., provided as follows: "The mayor and city council of Baltimore shall have power to regulate the use of the streets, lanes, and alleys in said city by railway or other tracks, gas or other pipes, telegraph, telephone, electric light, or other wires and poles, in under, over, or upon the same, and may require all such wires to be placed

under ground, after such reasonable notice as they may prescribe. Under the authority of this act the city council passed Ordinance No. 23, approved April 8, 1891. This ordinance permitted the North-avenue Railway Company to lay down tracks on certain of the streets of Baltimore, including Lexington Street, from North Street westward to Charles Street. It also permitted the erection of an elevated railway on a portion of North Street. As the city council had no power to authorize an elevated railway, it became necessary to obtain the ratification of this part of the ordinance by the legislature. The act of 1892, c. 112, after reciting that "before the said North-avenue Railway Company of Baltimore city can elevate its tracks on North Street, as aforesaid, it is required by law that the sanction of the General Assembly of Maryland should be given to said ordinance, so far as it relates to said elevation of its tracks," enacted that the ordinance should be ratified and confirmed, and that the ratification should "have the same effect as if the mayor and city council of Baltimore, at the time of the passage of said ordinance, had been fully authorized by the General Assembly to pass said ordinance, and to grant each and all of the poro and privileges therein contained; the said mayor and city council to have the same power and control hereafter in reference to the enforcement, amendment, or repeal of said ordinance as it has or would have in respect to any ordinance passed under its general powers. Ordinance No. 1, approved November 18, 1892, repealed that portion of Ordinance No. 23 which authorized the double tracks on Lexington Street, but permitted the laying of a single track on certain conditions. It must be mentioned that by due proceedings the Lake Roland Company has been invested with all the rights and franchises of the North-avenue Company. The tracks have been laid under circumstances which will hereafter be stated. The question now presented to the court is whether the city council had the power to pass the ordinance of November 18, 1892.

City cannot abridge its powers.

Before we proceed to the investigation of this question, we must bear in mind that it has been solemnly adjudged by this court that the mayor and city council of Baltimore cannot abridge its own legislative powers. State v. Graves, 19 Md. 351; Rittenhouse v. Mayor, 25 Md. 337. In State v. Graves, just mentioned, the court refer to the opinion of the learned Judge MARTIN in the superior court of Baltimore as "cogent, clear, comprehensive, and well sustained by the authorities," and as "a sound exposition of the law," in which it entirely concurs. In his opinion Judge MARTIN says: "It is clear that the