RAILWAYS AND THE FRANCHISE TAX.

Court of Appeals for Franklin County.

#### State of Ohio v. The Little Miami Railroad Company.*

Decided, April 11, 1917.

*Taxation—Construction of the Franchise Tax Law With Reference to Its Application of Lessor Railway Companies.*

The Langdon act (101 O. L., 399-425) must be construed, in so far as it ■ ' defines the corporations which are subject to the franchise tax, as a revision of the Willis act (95 O. L., 124-128), and its scope as so amended is not changed by the subsequent ITollinger act (102 0. L., 224) with respect to corporations which are subject to the franchise tax; from which it follows that a railway company which has leased its line to an operating company is exempt from payment of the franchise tax, where the operating company is required to and does report and pay the excise tax.

*Joseph McGhee,*Attorney-General, and *Clarence Laylin,*for plaintiff in error.

*W. 0. Henderson*and *Lawrence Maxwell,*contra.

*

 Affirming *State*v. *Little Miami R. R. Co.,*19 N.P.(N.S.), 234.

Kunkle, J.

This case was submitted to the lower court upon a general demurrer to the answer of defendant in error. The lower court held that the answer stated a good defense and overruled the demurrer. Plaintiff in error did not desire to plead further and final judgment was rendered in favor of defendant in error. Error is prosecuted to this court from such judgment.

It appears from the answer that defendant in error is an Ohio railroad corporation owning a certain railroad, and in 1869 leased its said line of railroad for ninety-nine years, renewable forever, to the P., C., 0. & St. L. Railway Company. Since said date the last named company has maintained and operated the defendant’s line of railroad under said lease. It further appears from *155the answer that during the period for which plaintiff in error seeks to hold the defendant in error for the payment of a franchise tax, that the said lessee of said line of railroaff has paid the excise tax as a railroad corporation under the Hollinger act.

This action seeks to charge the lessor company, namely, the defendant in error, with the payment of a franchise tax under the Willis act as amended. .

We have carefully considered the very helpful briefs which have been filed by counsel. We have also examined with care the written decision of Judge Bigger of the court .of common pleas, which has been filed and presented to this court. -.

We shall not undertake to discuss in detail the authorities cited by counsel; but will merely announce the conclusion at which we have arrived after a careful examination of such authorities. ' ' ■ .

We are in accord with the conclusion reached by Judge Bigger and in the main with the . reasoning contained in his written decision.

We think the Langdon act, in so far as it defines the corporations which are subject to the franchise tax., should be construed as a revision of the Willis act. We are also of. opinion that the Hollinger act does not change the scope of the Willis act as amended by the Langdon act,.in respect to the corporations which are subject to a franchise tax.

In view of our conclusion as to the scope of the Langdon and Hollinger acts, we think the decision of the Court of-Appeals of Cuyahoga County in the case of *Cleveland & Pittsburgh R. R. Co.*v. *State of Ohio,*20 C.C.(N.S.), 2 Appellate Court Reports, page 228, approved by the Supreme Court March 24, 1914, is decisive of the ease at bar.

The judgment of the lower court will be affirmed. ,

Allread, J., and Ferneding, J., concur.