that, where no constitutional restriction is imposed, the corporate existence and powers of counties, cities and towns are subject to the legislative control of the State creating them.

In New Orleans v. New Orleans Water Works Company, 142 U. S. 79, it was also held that a municipal corporation was the mere agent of the State in its governmental character, and was in no contract relations with its sovereign, at whose pleasure its charter may be amended, changed or revoked without the impairment of any constitutional obligation. It was also therein held that such a corporation, in respect to its private or proprietary rights and interests, might be entitled to constitutional protection. The Massachusetts courts take the same view of such a corporation. Browne v. Turner, 176 Massachusetts, 9.

Enough cases have been cited to show the nature of a municipal corporation as stated by this court. In general it may be conceded that it can own private property, not of a public or governmental nature, and that such property may be entitled, as is said, "to constitutional protection." Property which is held by these corporations upon conditions or terms contained in a grant and for a special use, may not be diverted by the legislature. This is asserted in Commissioners &c. v. Lucas, Treasurer, 93 U. S. 108, 115, and in Mount Hope Cemetery v. Boston, 158 Massachusetts, 509, the Supreme Court of Massachusetts held that cities might have a private ownership of property which could not be wholly controlled by the state government.

It seems, however, plain to us that the asserted right to demand the continuance of the obligation to pave and repair the streets, as contained in the orders or decrees of the board of aldermen granting to the defendant the right to extend the locations of its tracks on the conditions named, does not amount to property held by the corporation, which the legislature is unable to touch, either by way of limitation or extinguishment. If these restrictions or conditions are to be regarded as a contract, we think the legislature would have the same right to

terminate it, with the consent of the railroad company, that the city itself would have. These restrictions and conditions were of a public nature, imposed as a means of collecting from the railroad company part, or possibly the whole, of the expenses of paving or repaving the streets in which the tracks were laid, and that method of collection did not become an absolute property right in favor of the city, as against the right of the legislature to alter or abolish it, or substitute some other method with the consent of the company, even though as to the company itself there might be a contract not alterable except with its consent. If this contention of the city were held valid, it would very largely diminish the right of the legislature to deal with its creature in public matters, in a manner which the legislature might regard as for the public welfare. In City of Springfield v. Springfield Street Railway, 182 Massachusetts, 41, this question was before the Supreme Judicial Court of Massachusetts, and the contention of the city, to the same effect as the plaintiff in error contends in this case, was overruled. It was therein held that the city acted in behalf of the public in regard to these extensions of locations, and that the legislature had the right to modify or abrogate the conditions on which the locations in the streets and public ways had been granted, after such conditions had been originally imposed by it. The case at bar was decided at the same time as the Springfield case (182 Massachusetts, 49), and the proposition that the legislature had the power to free the company from obligations imposed upon it by the conditions in the grant of the extended locations was adhered to, and the Springfield case cited as authority for the same. We concur in that view.

There is no force in the contention that the city of Worcester has a proprietary right in the property of the defendant in error, reserved to it under the original statute incorporating the Worcester Horse Railroad Company. (Chap. 148, Mass. Laws of 1861.) These sections simply give the city of Worcester the right, during the continuance of the charter of the corporation and after the expiration of ten years from the opening of

A

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Argument for Petitioner.

any part of said road for use, to purchase all its franchises, property, rights, etc. That right is not affected by the legislation in question, even assuming (which we do not for a moment intimate) that the act of 1898 affected the right of the city to make the purchase under the sections above cited.

We see no reason to doubt the validity of the act of 1898, and the judgments of the Supreme Judicial Court and the Superior Court of Massachusetts are, respectively,

FLANIGAN v. SIERRA COUNTY.

Affirmed.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT.

No. 121. Argued January 12, 1905.-Decided February 20, 1905.

Whether a statute of a State is or is not a revenue measure and how rights thereunder are affected by a repealing statute depends upon the construction of the statutes, and where no Federal question exists this court will lean to an agreement with the state court.

Under the California cases the county ordinance imposing licenses involved in this case was a revenue and not a police measure. While the doctrine that powers derived wholly from a statute are extinguished by its repeal and no proceedings can be pursued under the repealed statute, although begun before the repeal, unless authorized under a special clause in the repealing act has been oftenest illustrated in regard to penal statutes, it has been applied by the California courts to the repeal of the power of counties to enact revenue ordinances and will therefore in such a case be applied by this court.

THE facts are stated in the opinion.

Mr. C. C. Cole, with whom Mr. Joseph C. Campbell and Mr. Thomas H. Breeze were on the brief, for petitioner:

The ordinance under which this action was commenced was repealed by the act of the legislature of the State of California of March 23, 1901, and hence the action is abated. Garrison

Argument for Petitioner.

196 U. S.

v. New York, 21 Wall. 196; Louisiana v. New Orleans, 109 U. S. 285; Freeland v. Williams, 131 U. S. 417; United States v. Tynen, 11 Wall. 88; Norris v. Crocker, 13 How. 429; Maryland v. B. & O. R. R. Co., 3 How. 534.

revenue.

The ordinance was obviously enacted solely for raising It was not a licensing ordinance. Sonora v. Curtin, 137 California, 583; Cooley on Taxation, 573; Mayor v. Charlton, 36 Georgia, 460. A license confers a privilege, and makes the doing of something legal, which, if done without it, would be illegal. Insurance Co. v. Augusta, 50 Georgia, 530; Burch v. Savannah, 42 Georgia, 596; Chilvers v. People, 11 Michigan, 43; Robinson v. Mayor, 1 Humph. 156; Ould v. Richmond, 23 Gratt. 464; Reed v. Beall, 42 Mississippi, 472.

The effect of the ordinance is not otherwise than if it had provided that all sheep owned by those engaged in this business, should be taxed ten cents a head; that upon the payment of the tax the owner should be entitled to a tax receipt evidencing such payment, and that if it were not paid, it should become a debt due the county to be collected by a civil suit. Calling the tax receipt a "license" and the tax a "license tax" does not confine the lawful authority to transact this business to those who have paid the tax and procured the "license" any more than an ordinary tax on property creates a right or authority to own property. A license is a police regulation controlling the exercise of a profession, business or occupation. Cache County v. Jensen, 61 Pac. Rep. 303; Mayor v. Second Ave. R. R. Co., 32 N. Y. 261; Mays v. Cincinnati, 1 Ohio St. 268; Am. Fertilizing Co. v. Board of Agriculture, 43 Fed. Rep. 609; Flanigan v. Plainfield, 44 N. J. L. 118; Cooley on Taxation, 597; Merced County v. Helm, 102 California, 159, 163; Kiowa County v. Dunn, 40 Pac. Rep. 357. As to power of county to enact revenue and license ordinances, see Political Code, §3366; California Statutes, 1900, passed March 23, 1901, c. 209, p. 635; Ex parte Pfirrmann, 134 California, 143; Sonora v. Curtin, 137 California, 583, and cases cited.

Irrespective of the decisions of the courts of other States and of their rulings on the effect of similar statutes, the de

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Argument for Respondents.

cisions of the Supreme Court of California in the construction of a statute of that State must be read into that statute and conclusively control the Federal courts in their determination of its object and effect. Brown v. New Jersey, 175 U. S. 172; Noble v. Mitchell, 164 U. S. 367; Illinois Cent. R. Co. v. Illinois, 163 U. S. 142; N. Y., L. E. & W. R. Co. v. Pennsylvania, 158 U. S. 431; Leeper v. Texas, 139 U. S. 462; M., K. & T. Ry. Co. v. McCann, 174 U. S. 580; Cravens v. N. Y. Life Ins. Co., 178 U. S. 389; Morley v. Lake Shore & M. S. Ry. Co., 146 U. S. 162; Lapp v. Ritter, 88 Fed. Rep. 108; Southern Ry. Co. v. North Carolina Corp. Comm., 99 Fed. Rep. 102; O'Brien v. Wheelock, 95 Fed. Rep. 883, 905.

Mr. Frank R. Wehe, with whom Mr. W. J. Redding and Mr. C. N. Post were on the brief, for respondent in No. 121; Mr. U. S. Webb and Mr. L. N. Peter for respondent in No. 122,1 involving a similar ordinance, submitted:

The ordinance was passed in the exercise of police power and for the purpose of regulation, and was not, therefore, repealed. When petitioner commenced to do business in the county he became indebted to respondent in the amount due for the license. The right to the sum due vested in the county; hence no repeal could affect it. All constitutional questions raised have been decided adversely to petitioner by the Supreme Court of the State of California. The ordinance was in the exercise of police power and was not repealed. California Const., Art. XI, § 11; County Government Act, § 25, subd. 25, Stat. 1897, p. 465; In re Guerro, 69 California, 90; Ex parte Mount, 66 California, 448; Ex parte Mirande, 73 California, 374; El Dorado County v. Meiss, 100 California, 270; Inyo County v. Erro, 119 California, 120; Ex parte Ah Toy, 57 California, 92; Ex parte Pfirrmann, 134 California, 147; Ex parte Roach, 104 California, 276; Los Angeles County v. Eikenberry, 131 California, 461; Cooley on Taxation, 599; 1 Tiede

1 Wheeler v. Plumas County, post, p. 562.