
    The State of Ohio v. The Little Miami Railroad Co.
    
      Franchise tax of railway corporations — Sections 5445 and 1465-1, General Code — Lessor railway company exempt from excise tax, when.
    
    The Langdon act (101 O. L., 399-425; Section 5445 et seq., General Code), in so far as it defines the corporations which are subject to the franchise tax, must be construed as a revision of the Willis act (95 O. L., 124-128), and its scope as so amended is not changed by the subsequent Hollinger act (102 O. L., 224; Section 1465-1 et seq., General Code), 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.
    (Decided April 11, 1917.)
    Error: Court of Appeals for Franklin county.
    
      Mr. Joseph McGhee, attorney general, and Mr. Clarence D. Laylin, for plaintiff in error.
    
      Mr. W. O. Henderson and Mr. Lawrence Maxwell, for defendant in error.
   Kunkle, J.

This case was submitted to the court of common pleas upon a general demurrer to the answer of defendant in error. That court held that the answer stated a good defense, overruled the demurrer to the answer of defendant in error, and rendered final judgment 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 99 years, renewable forever, to The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Since said date the last-named company has maintained and operated said defendant’s line of railroad under said lease. It further appears from the answer that during the period for which plaintiff in error seeks to hold the defendant in error for the payment of a franchise tax, the said lessee of said line of railroad has paid the excise tax as a railroad corporation under the Llollinger. act.

This action seeks to charge the defendant in error, the lessor company, 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 Rd. Co. v. State, 2 Ohio App., 228, 36 C. C., 403, 20 C. C., N. S., 61, approved by the supreme court, March 24, 1914, State v. C. & P. Rd. Co., 59 Bull., 112, is decisive of the case at bar.

The judgment of the lower court will be affirmed.

Judgment affirmed.

Allread and Ferneding, JJ., concur.  