Pullman Co. v. Adams

78 Miss. 814

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

The statute under construction is in these words:

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“ Section 3387, code 1892. Sleeping cars: On each sleeping and palace car company carrying passengers from one point to another in this state, $100. And, in addition thereto, 25 cents a mile for each mile of railroad over which the company runs its cars.”

The whole purpose of this statute, from its terms, manifestly is to require a privilege tax to be paid for doing business within this state, and for that business alone. It relates exclusively to the local business done by the Pullman company within this state. It does not require any tax to be paid for the privilege of doing the interstate business of the company. It does not in any manner affect its interstate business. “It can conduct its interstate business without paying the slightest heed to the act, because it does not apply to or in any degree affect the company in regard to that portion of its business which it has the right to conduct without regulation from the state. ’ ’

The case of Osborne v. Florida, 164 U. S., 650, is decisive of this case. The case of Crutcher v. Kentucky, 141 U. S., 47, is clearly discriminated from Osborne’s case by Mr. Justice Peckham, who there says: “ It has never been held, however, that when the business of the company which is wholly within the state, is but a mere incident to its interstate business, such fact would furnish any obstacle to the valid taxation by the state of the business of the company which is entirely local. So long as the regulation as to the license or taxation does not refer to and is not imposed upon the business of the company which is interstate there is no interference with that commerce by the state statute. ’ ’

It was stated by Mr. Justice Bradley, in the course of his opinion in the Crutcher case that: “Taxes or license fees in good faith imposed exclusively on express business, carried on wholly within the state would be open to no such objection,” viz., an objection that the tax or license was a regulation of, or that it improperly affected, interstate commerce. We have no doubt that this is a correct statement of the law in that regard. The statute herein differs from the cases where statutes upon this subject have been held void, because in those cases the statutes prohibited the doing of any business in the state whatever, unless upon the payment of the fee or tax. It was said as to those cases that, as the law made the payment of the fee, or the obtaining of the license a condition to the right to do any business whatever, whether interstate or purely local, it was on that account a regulation of interstate commerce, and therefore void. Here, however, under the construction as given by the state court, the company suffers no harm from the provisions of the statute. It can conduct its interstate business without paying the slightest heed to the act, because it does not apply to or in any degree affect the company in regard to that portion of its business which it has the right to conduct without regulation from the state.

The company in this case need take out no license and pay no tax for doing interstate business, and the statute is therefore, valid. In Telegraph Co. v. Wirt Adams, Revenue Agent, 71 Miss., 565, afterwards affirmed by the United States supreme court, this court said: “Every tax is a burden, and to the extent imposed, is an interference with the pursuit or business upon which it is laid. If the business is partly interstate commerce, then that commerce is incidently affected and interfered with by every tax, of any nature whatever, that may be levied on it. In the case at bar there is no direct burden upon interstate commerce; there is no further interference with it than will be found necessarily to result from the imposition of any burden of taxation in any shape. ’ ’

The contention that the appellant does its local business at a loss, and yet must do it under the constitution of 1890 making it a common carrier, and hence that its interstate business is indirectly burdened, is fallacious. Were that so, it would be the provisions of law declaring the sleeping car companies common carriers, that would controvene the interstate commerce clause of the federal constitution, not this license tax statute.

It is not for the appellant to get all out of the local business the “ traffic will bear ” and then escape, the correlative burden of this license tax by pleading that it, though conforming to the law making it a common carrier, as to profits, should not conform to the law taxing the business it does wholly local and entirely within this state. Pickard v. Southern Pullman Car Co., 117 U. S., 34, is wholly unlike this case. There a tax was levied on each sleeping car, whether in state or interstate business, and the tax was required to be paid if the local business had been entirely abandoned.

We think the action of the court below clearly right, and the judgment is

Affirmed.

Following a preceding section in these words: “A tax on privileges is levied as follows, to wit: ”