Page:Federal Reporter, 1st Series, Volume 6.djvu/568

 556 FBDBBAL BSPOBTER. �thorized to construct their railways, and operate them, by various ordinances which have beon from time to time passed ; and these ordinances have been recognized and affirmed, many of them, by the legislature of the state. By virtue of these ordinances and acts of the legislature the companies have the right to run their cars for the transit of passengers through the city. It eannot be said, therefore, that the effect of the ordinance which bas been specially referred to, although it is called a license, would be to give the companies the privilege of running their cars. That they have by virtue of the ordinance and the acts of the legislature. There can be no doubt that the legislature would have the right, under the con- stitution of 1848, which was in force when the franchise was granted,to tax the corporations fot the use of their franchise; that is, a tax which is entirely independent of the value of the cars, tracks, and other tangible property of the corpora- tipnp, a,nd so treated by the constitutions of 1848 and 1870. But there are many difficult^es with this branch of the sub- ject. There are certain poi|.ditipns required by the constitu- tutioB of 1870 as prerequisite» tot. the imposition of a taX of this kind, cven conceding that the legislature bas authorized the city to impose the tax, and I therefore, without giving» any decided opinion upon that part of the case, prefer to place my decision upon another ground, and to sustain the ordinance as a regulation of the police power of the city, This is always a subsisting power, which, it is generally held, ca.nnot be transferred by the city, but is inherent in its munic- ipal organization. There can be no controversy about the power of the city over many things connected with the opera- tion of the city railway. Admitting that because of the price of fare agreed upon there can be no change in that, yet, by virtue of its police power, the city can, to a great extent, regulate the running of the cars, presoribe rules and laws as to spoed, stoppage, and other things connected with the operation of the railway. This bas not been questioned by the counsel of the plaintifE; but it is claimed this eannot be considered a police regulation, because it is manifestly the exercise of the taxing power of the city. It is argued ��� �