out first having obtained them, they are taxes, and though it is a license in form, it is a mere tax receipt.

It was such a misnomer, in the judgment of the supreme court, to call such law "a license law," that congress, in 1866, amended it in that respect by striking out the word "license" and inserting "special tax." Thus, by the change of one word, the act became in name what it was declared to be in legal effect, a tax law, because the so-called license conferred no authority to engage in the traffic, and therefore was not a license law.

This court, in direct conflict with this high authority, holds, that although the act of 1882 confers no authority to traffic (Sec. 15), yet it is in legal effect a license, because a bond is required to secure the tax.

This decision, in 5th Wallace, is affirmed in strong terms in Home Ins. Co. v. City Council, 93 W. S., 116. It was the case of ordinance of the city of Augusta, in Georgia, providing for an "annual license tax on insurance companies." prior to the passage of this ordinance the insurance company had complied with the state law, and held a certificate of authority to do business in the state, then this ordinance was passed imposing a "license tax," and the company sought to enjoin the collection of the license tax on the ground, among others, that the city could not require a second license, as it would impair the obligation of the contract with the state, evidenced by the certificate of authority from the state.

The Supreme Court of Georgia, in the same case, 50 Ga., 360, has held. that this license was not such, but a special tax and conferred no authority to do business

The case was carried to the Supreme Court of the United States on this question, and that court again unanimously held that such a tax was not a license, but a valid tax imposed by the city; and after repeating what was said in 5 Wallace, adds: "In the ordinance in question the tax is designated 'a license tax,' but its payment is not made a condition precedent to the right to do business. No special penalty is prescribed for its non-payment,and no second license is taken out. Had the ordinance been otherwise in these particulars, we have seen, viewing the subject in the light of the License Tax Cases, that the result would have been the same."

In view of the foregoing cases, it can hardly be said of them that they "shed no light on the question before us." I think they shed a flood of light directly on the question. Neither can it be said of them, "that the ordinance and legislation under consideration (in those cases), was different from the legislation involved here.' The fact that there was no anti-license clause, is wholly immaterial, as the question there was, as it is here, what is the meaning of the word license, and does a prohibition under penalties against carrying on business until a tax is paid impart a license? Such pre-eminent authority as these cases are ought not to be ignored. Numerous statutes might be cited to show that

regulations prescribed as conditions precedent or subsequent to engaging in a business and enforcing them by penalties are not licenses.

Thus see 2778 of Revised Statutes, requires foreign express and telegraph companies to return and pay a per centage tax on receipts in addition to the tax on property. By Sec. 2843, if these taxes are not paid the companies in default were forbidden to do business in the state.

No one would call this a license statute, but a mode of enforcing the payment of the taxes due. The case of Youngblood v. Sexton, 32 Michigan, is important, as coming from a state having a constitutional provision similar to ours. It is directly in point and cannot be explained away. The statute was a graduated specific tax on the traffic, with the usual provisions for its collection, and it was made a misdemeanor to neglect to pay the tax, and a penalty was imposed for each offense.

The statute was held, Cooley, J., announcing the opinion, to be a tax and not a license. It is sought to avoid the force of this case by drawing a distinction between the Michigan statutes and our own by claiming that under the Michigan the business is not prohibited if the tax not paid, while in ours it is. This is untenable. In the one, non-payment of the tax when due is a misdemeanor, and no bond is required; while in the other, failure to give the bond, which is merely security to pay the tax, is made the misdemeanor, and failure to pay the tax only subjects the person to an action on the bond.

In the one case a person is punished for not paying the tax, while in the other he is punished for not giving the bond to pay the tax when due. Legal accumen would be exhausted in making a distinction. The power, by discriminating taxes, as well as by fines, penalties and forfeitures, to provide against vicious and criminal practices, including the evils resulting from the traffic in intoxicating liquors, such as the vice, pauperism and crime it causes, is, as I believe, a part of the legislative power of the state that ought not to be frittered away or crippled. Free trade in this traffic has never been adopted as the policy of this state. On this point I adopt with hearty approval the language of this court, in Miller v. Gibson, 3 Ohio St., 486, 487, per Thurman, Judge, who says: "The idea apparently contended for, that the constitution recognizes an uncontrollable, illimitable right to sell intoxicating liquors, is manifestly erroneous. There is no such right in respect to any commodity, however harmless, for if there were, how could the various inspection laws, the laws relating to markets, the license laws, the Sunday law, &c., be sustained? A power of regulation, a power to provide against evils incident to traffic, a power to protect community against the fraude or dangerous practices of trade, is, in a greater or less degree, vested in every government, and certainly the people of Ohio are not wholly without this protection. lf, to guard against these evils, some restraint upon the traffic itself is necessary, it may be lawfully imposed, the fact

being always borne in mind, and always acted upon, that the power is a power to regulate, and not to destroy. To this power, intoxicating liquors are expressly subjected by the constitutional provision I have quoted: but were that provision stricken out of the constitution, the power would yet subsist: and for the same reason that it might be declared unlawful to sell poison to a child, or a dagger to a madman, it might be made an offense to sell intoxicating drinks to a minor or a drunkard; and for the same reason that any other common nuisance might, by law, be abated, the business of a common tippling house might be subjected to that fate."

RECEIVER IN CHANCERY-ATTACH

MENT-COMITY BETWEEN STATES.

In a suit in chancery pending in a Kentucky Court, wherein the trustees of an insolvent railroad corporation sought to enforce their rights under certain mortgages of the road and its equipment, the conditions of which had been broken, an application was made for the appointment of a receiver to take charge of and operate the road.

Pending this application, certain rolling stock covered by the mortgages was temporarily in Ohio, and while here was seized in attachment by an unsecured Kentucky creditor. The entire property was insufficient to pay the debts secured by the mortgages, or to earn income to pay the interest. The order of the court appointing the receiver, made subsequent to the seizure in attachment, ordered him to take possession of all the property, including that scized, and authorized him to sue in bis own name as such receiver, whenever necessary to perform his duties. Held: That the mortgages covered the rolling stock, though temporarily in this state, and the receiver might, under the comity between states, by an action brought in this state in his own name, assert his right to the possession thereof, where such right is not in conflict with the rights of our own citizens, nor against the policy of our laws.

Error to the District Court of Hamilton County.

The original action was brought by Samuel Gill, Receiver of the Louisville, Cincinnati & Lexington Railroad Company, against the plaintiff in error and Geo. W. Zeigler, Sheriff of Hamilton County. Gill having died, the action was revived in the name of John McLeod, the successor of Gill, as such receiver.

The object of the action was to enjoin the defendant from detaining or holding two passenger cars and one baggage car, and to compel a restoration of them to plaintiff. and for other relief.

Douglas, Trustee, duly executed, acknowledged and recorded, to secure $1,000,000 in bonds of the company, with interest coupons attached at 8 per cent., payable semi-annually. By virtue of a contract, the company had the right to cross the Newport bridge and make connection with like roads in Ohio.

One of the conditions of this mortgage was, that if default was made and continued for more than ninety days in the payment of any semiannual instalment of interest, then the principal evidenced by the bonds should become due.

On the 25th of July, 1874, said Douglas as Trustee commenced a suit in the Louisville Chancery Court, making the proper parties, alleging the foregoing facts, insolvency of the company and insufficiency of the assets to pay the mortgage debts, and praying for the appointment of a receiver, on the ground that the entire property including that in controversy was insufficient to earn a net income sufficient to pay the interest on the bonded debt of the company which was insolvent.

By a cross-petition in that suit, filed by one Norvin Green, Trustee, it appears he was a trustee under a prior deed of trust in the nature of a mortgage on the same property to secure $3,000, 000 in bonds.

The condition of this mortgage was, that if default be made for more than sixty days in the payment of interest, then it should be lawful for said trustee to enter and take possession of all the property embraced in the deed of

trust.

In his cross-petition Green also seeks the appointment of a receiver and for the protection of his rights.

Pending these applications for the appointment of such receiver, the plaintiff in error, a corporation of the State of Kentucky, doing business in Louisville and within the jurisdiction of the court where said suit was pending, commenced an action in the Court of Common Pleas of Hamilton County, Ohio, against said railroad company as a foreign corporation, and caused an attachment to be issued and levied on certain cars, part of the equipments of said road included in said mortgages which was temporarily in Cincinnati, having crossed the Newport bridge to deliver passengers and freight and return.

This action and attachment was commenced September 15, 1874.

"same powers as are conferred on the president and directors of the company under its charter." He was authorized to bring and defend all actions in his own name, as receiver, as he may be advised by counsel to be necessary or proper in the discharge of the duties of his office. He was further authorized to take possession of all rights of the company across the Newport and Cincinnati bridge, to and from the depot in Cincinnati under a contract for that purpose.

On appeal to the district court the injunction prayed for was made perpetual, to reverse which judgment these proceedings in orror are prose

cuted.

JOHNSON, J.

There is no bill of exceptions, hence if the fact stated in petition, which are put in issue, entitled the receiver to the relief prayed and granted we must presume those facts were proved sufficient to warrant the judgment.

These facts are, in brief, that there were two mortgages on the railroad and its equipments including the cars in controversy, the conditions of which had been broken, the company was insolvent, the property was insufficient to pay the mortgage debts or to earn enough to pay the interest thereon.

In this condition of thiugs, the trustees applied to a court of chancery in Kentucky, having jurisdiction of the subject matter for the appointment of a receiver. Pending this application, the plaintiff in error, a citizen of Kentucky and within the jurisdiction of the court before whom the application was made, came to Ohio, and by attachment founded on an unsccured claim against the railroad company seized cars covered by the deeds of trust, and now claims priority over the right of the receiver.

After this, the court in Kentucky made the appointment of a receiver, and clothed him with the powers stated. He was to take possession of the road, its equipments, franchises, &c., and to operate the same. He was vested with power to sue in his own name as receiver in all actions

advised by counsel, necessary or proper in the discharge of his duties. This power to possess himself of the property of the road, and to operate the same, extended across the Ohio river over the Newport bridge to a connection with the Ohio roads at that point, and for that purpose invested him with the same powers as the president and directors of the company had under its charter to make connections with roads in this State.

The conditions of both mortgages having been broken, the right to the possession of the mortgaged property as by the laws of Kentucky vested in the trustees under the terms of the deeds of trust.

The right which the company had, to run its cars over the Newport bridge into this State, also vested in the trustees, and on their motion was conferred on the receiver. Instead of asserting in person, this right, the trustees secured the appointment of a receiver and had him clothed

with all the powers they, as well as the corporation possessed in the premises.

The temporary removal of the cars into Ohio by the company pending the application for a receiver did not divest the mortgages of any rights to possession of the property, nor impair the power of the court over it.

The rights of the mortgagees under this mortgage will be determined by the lex loci contractus, when such contract is not contrary to the policy of our laws, nor in conflict with the rights of our own citizens. In such a case our courts will by the law of comity enforce the contract and give it an extra territorial operation. Thus the mortgagee of chattel property under the laws of New York may assert his rights against the mortgaged property found in Ohio. Kanaga v. Taylor, 7 O. St. 134.

This property at the time it was seized in attachment was in possession of the the mortgagor, and was temporarily in Ohio under a contract with the Cincinnati & Newport Bridge Co., but the right to the possession was in the trustees under these mortgages. If instead of procuring the appointment of a receiver they had in person asserted their right to the possession under the conditions of the mortgage, no one doubts that their right was paramount to the seizure under the attachment.

The right of the trustees under these mortgages, which are valid by the laws of both states, can be asserted in Ohio as fully as in Kentucky. The only limitation being that the courts of Ohio, while allowing the comity of suit on a contract not in contravention of our laws or public policy, will protect the rights of our own citizens, and will not allow the principles of comity to defeat or impair these rights. Fuller v. Steiglitz, assignee, 27 O. St. 355; Bank of Augusta v. Earle, 13 Peters, 591; Shortwell v. Jewett, 9 Ohio, 180; Oliver v. Townes, 14 Martin (La.) 93; Gaulundet v. Hall, 35 N. Y., 657; Wharton Conflict of Laws; Story on Conflict of Laws, Sec. 244, 259.

The validity of these mortgages and of the appointment of the receiver of this corporation is clearly stated in Newport & Cin. Bridge Co. v. Douglas, receiver, 12 Bush. 673. The extent of the powers of the receiver to operate and control the road and its earnings under this appointment are then fully settled.

Counsel for plaintiff in error concede the extra territorial rights of the owner of property, or of the mortagee thereof, to maintain an action in the courts of a sister state, when the case comes within the exception stated, but deny that a receiver has any such power. The claim is, that the receiver acquired no title to the property in controversy, and had no power to bring an action in the State of Ohio, the order of the Louisville Chancery Court having no effect outside of the State of Kentucky. Let it be assumed as settled by all the authorities that the order of the Kentucky court sitting in chancery did not operate to confer or divest any title to property outside of that state. That is probably

also true as to the title of property within that state. The receiver, when appointed by the court of chancery, did not acquire the title to the property, but only the right under orders of the court to possess and operate the same, as the trustees under the, mortgages might have done, or as the court might direct..

Stripped of all collateral matters, the question is: has the receiver in such a case the legal capacity to possess himself of the property embraced in these mortgages?

The general principle is: "that the possession of the receiver is that of all parties to the suit, according to their titles. As between the owner and incumbrancers it is for some purposes the possession of the incumbrancers, who have obtained or extended the receiver; as between the owner whose possession has been displaced and a third party it is the possession of the former." High on Receivers, Sec. 134, Note 1.

Thus in Horlock v. Smith, Law Jour. N. S. vol. 2 p. 157, where a receiver was appointed of property mortgaged to A, and continued to hold over after his discharge it was held, that the possession of the receiver after such discharge was the possession of A.

The general proposition is well established that the receiver is the officer or agent of the court appointing him, for the benefit of whoever may be ultimately determined to be entitled to the property. In the case at bar, the fact was established, that the right of property was in the receiver, for the benefit of the incumbrancers, on whose motion he was appointed, and therefore, as between them and the owner, or the unsecured creditors, the possession is that of the incumbrancers. Thus it was held in Angel v. Smith, 9 Vesey 337, that when the rights of the parties are ultimately determined, the possession of the receiver for the whole period, by relation dates back to the time of the appointment, though pending such determination, it be deemed the possession of the court for all parties interested.

Again, the possession of the receiver and his right to possession are exclusive. No one, not No one, not even the trustees under these mortgages, could interfere with this right. Having procured his appointment and placed the property in the custody of the court, they would be estopped from asserting in person the right to enter upon and use the property reserved to them in the conditions of their mortgages.

Without authority of the court, no one has the right by execution, or otherwise, to interfere with the receiver's possession. High on Receivers, Sec. 135 to 156, and cases cited.

Again, the authority to bring action is derived from the court appointing him, which may be conferred either by a general order or by special orders in particular cases. 2 Daniels Ch. Prac. 1751, Note 7. Davis v. Gray, 16 Wall 216-219.

This is according to the weight of authority, though there are many well considered cases holding that a receiver had the right to sue by virtue of his appointment and the general pow

ers thereby conferred, without express authority for that purpose. 2 Daniels Ch. 1751. Note

7, in brackets. Wray v. Jamison, 10 Humph. 186. Baker v. Cooper, 57 Maine 388. High v. Receivers sec. 210.

In the case before us the order of appointment authorizes the receiver to bring all necessary. proper actions in his own name as such, under advice of counsel.

So far as the court had power to do so it has by a general order clothed the receiver with the right to bring this action. If the allegations of the petition are true, and in this proceeding we inust assume that they are, the action was a necessary and proper one, and was advised by counsel who represents the receiver. This right to sue in his own name is not controverted when applied to an action in Kentucky, but the claim is that the authority to do so is confined to actions brought in Kentucky. In other words, that this right cannot, by the comity between states, be exercised in a sister state.

As the mortgage was valid in Ohio, and the property was insufficient to pay the debt, the equity of redemption on which the attachment was levied was valueless. The attaching creditor acquired no right or interest by the seizure, paramount to the mortgagee's.

Had it appeared that an interest in the property was acquired by the seizure, a different and somewhat difficult question would have been presented, namely: would the Ohio court retain the property until this interest was ascertained and protected? If the attaching creditor was a citizen of Ohio, the principle that our courts. would protect its own citizens would seem to apply, but treating the mortgages as valid, no such interest existed, or could be acquired by the levy of the attachment, as the property was insufficient to pay the debts secured by the mortgages.

Independent of the rights of any citizen of Ohio, will comity allow the receiver to maintain an action in Ohio, which he could bring in Kentucky?

We think that upon both principle and authority such an action may be maintained. The nature of the union between the states, as members of a common government, the vital interests which bind them together, should lead us to presume a greater degree of conity in commercial, as well as political affairs, than we should be authorized to presume between states, wholly foreign to each other.

In Hurd, Receiver, v. The City of Elizabeth, 41 N. J. L., 1, it was held, that a receiver appointed by a court of New York, clothed with authority to take the designated property wherever situate, may sustain a suit for such property in the courts of New Jersey.

That was an action in that state to recover moneys due a New York bank, of which the plaintiff was appointed receiver by a New York court. There, as here, the right to sue outside of New York was denied.

It is said there are dicta that go to the extent of this claim, but the correct rule is stated to be:

"That a receiver cannot sue or otherwise exercise his functions in a foreign jurisdiction, whenever such acts, if sanctioned, would interfere with the policy established by law in such foreign jurisdiction.

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"It could hot be exercised in such foreign jurisdiction to the disadvantage of creditors resident there, because it is the policy of every government to retain in its own hands the property of a debtor until all domestic claims against it have been satisfied."

The distinction is drawn between the case of a receiver acting under the inherent force of his appointment alone, and a case where, by the terms of his appointment, he is directed to gather the assets wherever found. The power of the court to confer such authority on a receiver is not limited to property found within the state where he is appointed. It is not necessary that the property should be within the jurisdiction of the court.

Thus the courts of England have appointed receivers to manage landed property in India, Canada, China, Ireland, Italy, the South American states and other places. 2 Daniels' Ch. * 1731, and cases cited.

So on principles of comity, the aid of a New Jersey court was extended to a foreign receiver to obtain possession of property, as against the officers of a corporation of which he was receiver, who may be endeavoring by fraud or subterfuge to withhold it. Bidlack, Receiver, v Mason, 26 N. J. Eq., 230.

The principle announced in Hurd v. Elizabeth, supra, which is a late and well considered case, is in our judgment supported by reason and authority. A few of the cases are: Pond

v. Cooke, 6 Reporter (Conn.) 516; Hunt v. Columbian Ins. Co. 55 Maine 297-8; Exparte Norwood, 3 Bissell 504; Gray, Receivers, v. Davis, 1 Wood, 420, affirmed in Davis v. Gray, 16 Wallace, 203; Runk et al., Receiver, v. St. John, 29 Barb., 585; Barclay v. The Quicksilver Mining Co., 6 Lan. 25; Willets v. Waite, 25 N.Y. 577; Peterson v. The Chemical Bank, 32; Pugh v. Hunt, 52 Howard (N.Y.), 22; Graydon v. Church, 7 Mich., 36.

Great reliance is placed on the remarks of Mr. Justice Wayne in deciding the case of Booth v. Clark, 17 Howard, 334, where it. is said, "that the receiver's right to the possession of the property is limited to the jurisdiction of his appointment." This and other remarks of the learned Judge are termed dicta, when applied to cases like the present. In Hurd v. The City of Elizabeth, 41 N. J., Law 1. Ex parte, Norwood 3 Bissel, 512. Booth v. Clark was correctly decided upon the facts before the court. One Camara recovered a judgment in the court of New York against Clark, and upon a return of no goods on which to levy, had Booth appointed receiver in 1842, to reach equitable assets and choses in action of Clark to satisfy his judgment. In 1851 Booth, as receiver, filed a bill in the Circuit Court of the District of Columbia, seeking to reach a claim upon Mexico in favor of Clark,

which had been awarded to him in 1848. Clark was adjudged a Bankrupt in 1843, and this claim. against Mexico, which was then existing, passed to his assignee. It was held in Clark v. Clark, 17 Howard, 315, that this claim belonged to the assignee in bankruptcy. The controversy in this case was, therefore, one between Clark's assignee in bankruptcy, and Booth, receiver, under the creditor's bill of Camara filed in New York, as to which was entitled to collect from the United States the amount awarded to Clark by the commission under the treaty between the United States and Mexico. It was held that the assignee in bankruptcy, by virtue of his office, had the best right to the fund. There were no liens or vested rights of the judgment creditor to his debtor's claim or chose in action. The receiver only acquired an authority to sue for and reduce to possession this claim. This authority had no extra territorial force as against the assignee in bankruptcy, who represented all creditors alike, and who by the adjudication in bankruptcy, became invested with the right to choses in action wherever found.

Unlike the present case, there was no lien or mortgage, or other vested interest in the receiver. So far we have taken no notice of the fact that the litigating parties are both citizens of Kentucky. The plaintiff in error has no right to invoke that protection against the principles of comity, which this state would accord to her own citizens. Wharton Conflict of Laws, Secs. 364-369. In such case it is said held, "where questions as to extra territorial property arise between foreign assignees and foreign creditors, domiciled in the same state, the foreign law to which such parties are subject will be upheld. Ibid. Sec. 369, and note.

In Rhode Island Bank v. Danforth 14, Gray 123, that a mortgage on chattels in Massachusetts by a Rhode Island mortgagor to a mortgagee residing in the same state, would be sustained in the courts of Massachusetts as against an attachment in Massachusetts by a Rhode Island creditor. The court say, all the parties are citizens of Rhode Island, and a valid mortgage there will transfer the property in Massachusetts. If this were not the rule, it would enable a Kentucky creditor of an insolvent debtor, by an attachment in Ohio, to defeat an assignment made in Kentucky for the equal benefit of creditors, and thereby secure a priority over others, and even ever a valid mortgage.

Judgment affirmed. [To appear in 38 O. S.]

VIRGINIA MILITARY LANDS IN OHIO.

[Norvill's Case concluded.]

Meanwhile the lands had been sold for taxes, or by order of probate courts and otherwise. Where the parties to the original entry had omitted to obtain legal titles and the period in which legal titles might have been obtained, had passed and nearly a generation of time had subsequently intervened, and the land had long been in peaceful possession and actual occupancy under 108sessory rights, and titles derived through the tax sales or judicial proceeding, or by purchase from the holders