Page:Federal Reporter, 1st Series, Volume 6.djvu/572

 560 FSDEBAL BEFOBTEB. �it does in this case ; and theref ore I shall, as at present ad- vised, sustain the ordinance in question as a valid exercise of the police power of the city council. �There have been some arguments used by counsel which, I think, do not properly apply to the pleadings. It is irisisted that the court must construe this as a tax, and not a mere police regulation. It is admitted that the court of appeals of New York did construe a similar license fee as a tax. The supreme court of Pennsylvania has given a different construc- tion, and held it to be a police regulation. There is nothing in the bill by which the court can regard it absolutely as the exercise of the taxing power of the city. There is nothing in the bill which would authorize the. court to hold, if it were a tax, that it was in violation of the constitution of 1870, as not being uniform upon the particular olass on which it op- erates. It is urged that it cannot be treated as a tax, because, if so, it would not be within this requisition of the constitution of 1870, because the street railways corne in direct competition with some of the steam railways ; as that of the Illinois Central and the Northwestern to Hyde Park and Evanston. There is nothing in the pleadings which would warrant the court in considering these facts^ unless the court should take judicial notice that they do thus corne in competition, without any allegation in the pleadings. Un- der the authorities, and upon the statements contained in the pleadings, the court cannot necessarily construe this as a tax. The court is at liberty, I think, to construe it as a police regulation. �These views haye been given for the purpose of enabling the parties, if they desire, to take the case to the supreme court of the United States. The district judge who heard the application for an injunction in the first instance, and gi-anted it, is inclined to hold, as I understand, that this was not the proper exercise of the police power. I hold, for the purpose of d.eciding the case, that it is ; and if the case is to be determined by the pleadings as they at present stand, it can be certified up to the supreme court as upon a division of opinion between the judges. If, however, the counsel ��� �