Williams v. City of Talladega

51 So. 330, 164 Ala. 633, 1909 Ala. LEXIS 268

• Court: Supreme Court of Alabama
• Decided: December 21, 1909
• Status: Published

Opinion

SAYRE, J.

— Plaintiff in appeal was convicted of the violation of an ordinance of the city of Talladega, because, as agent of the Western Union Telegraph Company, he engaged in the business of sending messages between that city and other points in this state without first obtaining a license. The question of first importance raised by the appeal relates to the operation and effect in such case of the act of Congress of July 24, 1866 (Act July 24, 1866, c. 230, 14 Stat. 221; sections 5263-5268, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3579]), known commonly as the “Post Roads Act.” Appellant’s contention is that this act and the acceptance by the telegraph company of its provisions constitute the company a licensee of the United States in respect to intrastate as well as its interstate business of transmitting messages, and render it immune to the imposition of a license tax by the state. The contention confesses that the decisions of the Supreme Court of the United States have finally determined that telegraphic messages carried and delivered exclusively within the states are elements of internal commerce, do not fall under the influence of the interstate commerce clause of the federal Constitution, although the same corporation is using the same agents and instrumentalities in interstate commerce, and are therefore subject to the taxing power of the state. But it is urged that, entirely apart from any question as to how the ordinance in question may be affected by the power of Congress to regulate commerce among the several statés, it must be condemned for the reason that it runs contrariwise to the post roads act of Congress passed in pursuance of its power under the Constitution to establish post roads. That act provided “that any telegraph company accepting said act shall have the right to construct, maintain and operate its lines of telegraph through and on any pari' of the public domain of the United States in and along any of the military and post roads of the United States which have been or may hereafter be constructed by act of Congress.”- — 7 Fed. Ann. St. 205-213.. In 1872 Congress passed an act which established as post roads “all railroads or parts of railroads, which are now or may hereafter be in operation.” And in 1884 an act “than all public roads and highways while kept up and maintained as such are hereby declared to be post roads.”— 5 Fed. Ann. St. pp. 900, 901 (U. S. Comp. St. 1901, pp. 2707, 2708). In consideration of these advantages Congress reserved the right of precedence in the use for public business of the lines of companies accepting the benefits of the act at rates to be fixed by the Postmaster General “Thus, as to government business, companies of this class become government agencies.” — Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067. It is made to appear in the agreed statement of facts that the Western Union Company has accepted the benefits of the act, and that the roads along which its lines are constructed within the state of Alabama and the city of Talladega are post roads. The argument proceeds: There is no reason to suppose that the government of the United States did not intend to secure for its postal, military, and other business between points within a state facilities equal to those secured for its business between points in different states. One may be as important as the other. The conclusion is that Congress intended to grant the right to carry on the business of telegraphing between points within the state, and granted it in a way that put it beyond the interference of the state.

It is to be observed that the argument lays out of the case all consideration of the relation of the business of sending telegraphic messages in interstate commerce; and this it may properly do, for, while on one hand the power of the state to tax messages exclusively between points within the state as a part of internal commerce is established by the repeated decisions of the Supreme Court of the United States, it must, on the other, be conceded that the power conferred upon Congress by the interstate commerce clause of the Constitution is entirely distinct from the power conferred in respect to the establishment of post roads. The question then is whether the act to which reference is made was intended to confer a franchise upon the Western Union and other companies accepting its provisions to carry on an intrastate business in such way as to put it beyond the power of the state to impose a privilege or license tax upon it. This involves a question of federal Constitution and law, and, if it has been determined by the Supreme Court of the United States, that determination must be final so far as we are concerned. We have already- quoted the Supreme Court of the United States to the effect that as to government business the telegraph company" is a government agency. As a summing-up of a number of its own decisions, it was said by that court in Western Union Telegraph Co. v. Alabama, 132 U. S. 472, 10 Sup. Ct. 161, 33 L. Ed. 409, that the principle in regard to telegraph companies which have accepted the provisions of the act of Congress of -July-21, 1866, is “that they" shall not he taxed by the authorities of a state for any messages, or receipts arising from messages, from points within the state to points without or from points without the state to points within, but that such taxes may" be levied upon all messages carried and delivered exclusively" within the ‘state.” There was consideration of the interstate' commerce clause, because that too was involved; but the conclusion of the case, and that of the cases cited, could not have been reached except on the theory that the argument here made is not grounded in a correct appreciation of the force and effect of the act of Congress in relation to telegraph companies..

In Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790, a tax was assessed against the company upon the value of its shares which were apportioned to that state on a mileage basis. This was said by the court to be essentally an excise upon the capital of the corporation, and that, while it was nominally upon the shares of the capital stock of the company, it was in effect a tax on account of property owned and used by it in the state of Massachusetts. The argument was pressed upon the court that the tax was void because it violated the rights conferred upon the company by the act of July 24, 1866. The court said: “This, however, is merely a permissive statute, and there is no expression in it which implies that this permission to extend its lines along roads not built or owned by the United States, or over and under navigable streams, or over bridges not built or owned by the federal government, carries with it any exemption from the ordinary burdens of taxation. While the state could not interfere by any specific statute to prevent a corporation from placing its lines along these post roads, or stop the use of them after they were placed there, nevertheless the company receiving the benefit of the laws of the state for the protection of its property and its rights is liable to be taxed upon its real or personal property as any other person would be. It never could have been intended by the Congress of the United States in conferring upon a corporation of one state the authority to enter the territory of any other state and erect its poles and lines therein to establish the proposition that such a company owed no obedience to the laws of the state into which it thus entered, and was under no obligation to pay its fair proportion of the taxes necessary to its support.” And Telegraph Company v. Texas, supra; Railroad Co. v. Peniston, 18 Wall. 5, 21 L. Ed. 787; Thompson v. Pacific Railroad Co., 9 Wall. 579, 19 L. Ed. 792, and National Bank v. Commonwealth, 9 Wall. 353, 19 L. Ed. 701, were cases cited and discussed.

In Massachusetts Western Union Telegraph Company, 141 U. S. 40, 11 Sup. Ct. 889, 34 L. Ed. 628, the court again considered the question, considered the effect of the act of Congress on the power of the state to tax, and reached the same conclusion. So, also, in St. Louis v. Western Union Telegraph Company, 148 U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 380, where the effort was to charge the company for its use of the streets. In Telegraph Company v. Texas, supra, this language was used: “The Western Union Telegraph Company having accepted the restrictions and obligations of this provision by Congress (the act of July 24, 1866) occupies in Texas the position of an instrument of foreign and interstate commerce, and of a government agent for the transmission of messages on public business. Its property in the state is subject to taxation the same as other property, and it may undoubtedly be taxed in a proper way on account of its occupation and its business.” It was also said: “Any tax, therefore, which the state may put on messages sent by private parties, and not by agents of the government of the United States, from one place to another exclusively within its own jurisdiction, will not. be repugnant to the Constitution of the United States.” And the cause was reversed with directions which authorized the collection of the tax on the appellant’s intrastate messages sent by private parties. The argument now advanced was not specifiw’lly an swered, but the court had the act of Congress before it, and its judgment evidenced an understanding of its repugnant meaning to that contended for by appellant here. Postal Telegraph Cable Co. v. Charleston, 153 U S. 692, 14 Sup. Ct. 1094, 38 L. Ed. 871, reviewed the cases we have mentioned and others, and disposed of the identical argument here advanced by saying: “It is obvious that the advantages or privileges that are conferred upon the company by the act of July 24, 1866, are in the line of authority to construct and maintain its lines as a means or instrument of interstate commerce, and are not necessarily inconsistent with a right on the part of the state in which business is done and property-acquired to tax the same within the limitations pointed out in the cases heretofore cited.” All this was repeated and reaffirmed in Western Union Telegraph Co. v. Gottlieb, 190 U. S. 412, 23 Sup. Ct. 730, 47 L. Ed. 1116.

From the cases we have cited, and from others to be found cited in them, it is to be seen that the argument here made has been, repeatedly urged by this appellant’s company upon the Supreme Court of the United States without success, and, while perhaps it has never been answered in the form in which it is now cast, we cannot assume that it lias been misunderstood. It certainly has not been assented to.

Any general discussion of the principles involved will hardly be deemed necessary after citation of the authorities' to which we have referred. They conclude our ■judgment. Some other considerations leading to the same result may develop from such brief notice as ue shall give to the cases cited by appellant to sustain its position. They are McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579; Osborn v. Bank, 9 Wheat. 740, 6 L. Ed. 204; Western Union Telegraph Co. v. Visalia, 149 Cal. 744, 87 Pac. 1023; San Francisco v. Western Union Telegraph Co., 96 Cal. 140, 31 Pac. 10, 17 L. R. A. 301; Western Union Telegraph Co. v. Lakin, 33 Wash. 326, 101 Pac. 1094 (May 28, 1909); Harmon v. Chicago, 147 U. S. 396, 13 Sup. Ct. 306, 37 L. Ed. 216; Moran v. New Orleans, 112 U. S. 69, 5 Sup. Ct. 38, 28 L. Ed. 653; California v. Central Pacific Ry. Co., 127 U. S. 1, 8 Sup. Ct. 1073, 32 L. Ed. 150; Western Union Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067. McCulloch v. Maryland and Osborn v. Bank, in which all the cases on this subject seek support, Avere, so far as the question here raised is concerned, to the same effect. The latter reAdews and reaffirms the principles declared in the first. Those cases settled the constitutional poAver of Congress to incorporate a hank, and that a state has no constitutional poAArer to tax the bank incorporated by Congress. In the latter case Chief Justice Marshall states that the foundation of the argument in favor of the right of a state to tax a bank was laid in the supposed character of that institution. That argument supposed the corporation to have been originated for the management of an individual concern, to have been founded upon contract between individuals having priate trade and private profit for its great end and principal object. To this the Chief Justice replied: “If these premises were true, the conclusion (that the state might tax) drawn from them Avould be inevitable. This mere private corporation, engaged in its OAvn business, with its oavu views, Avould certainly be subject to the taxing power of the state as any individual Avould be; and the casual circumstance of its being employed by the government in the transaction of its fiscal affairs Avould no more exempt the private business from the operation of that power than it would exempt the private business of any individual employed in the same manner.” The appellant’s company derives its right to exist as a corporation and its right to engage in the business of transmitting telegraphic messages from the state of New York where it urns chartered and organized. We think it may be assumed that this private corporation has private profit for its main object, and that its service to the government is only one incident of an enormous business Avhich it carries on for gain. As Avas said in Thomson v. Pacific Railroad, supra: “It must be remembered that the Bank of the United States was a corporation created by the United ■ States; and, as an agent in the execution of the constitutional powers of the government, Avas endowed by the act of creation Avith all its faculties, poAvers and functions. It did not owe its existence, or any of its qualities, to state legislation. And its exemption from taxation was put upon this ground.” And in Railroad Co. v. Peniston, 18 Wall. 5, 21 L. Ed. 787, the court argued: “It cannot be that a state tax which remotely affects the efficient exercise of a federal poAver is for that reason alone inhibited by the Constitution. To hold that Avould be to deny to the states all power to tax persons or property.” Congress may make contracts with individuals or corporations for services to be rendered to the gOAernment, and may in its discretion exempt the agencies employed from state taxation which Avill really prevent or impede the performance of them; but, in the absence of all legislation on the part of Congress indicating such exemption, the exemption cannot be applied to the case of a corporation deriving its existence from state law, and exercising its franchise under such law.— Thompson v. Pacific Railroad, supra.

Harmon v. Chicago and Moran v. New Orleans raised the same question. The effort of those cities was to impose a license tax upon vessels plying the navigable waters of the United States under license from the United States. The decision was that the municipalities had nothing to confer, and therefore no privilege to tax. The privilege sought to be taxed Avas a privilege offered by Congress only. In California v. Pacific Railroad Company it Avas considered that franchises conferred by Congress cannot, Avithout its permission, be taxed by the states. One question there Avas Avhether the railroad company had a franchise from Congress. The facts were that Congress on July 1, 1862, had passed an act creating and erecting a body corporate and politic in deed and in law, knoAvn as the Union Pacific Railroad Company, to construct a railroad across the territories of the United States from the Mississippi river to the Pacific Ocean, and to secure the use of the same to the government for postal, military and other purposes.— Act July 1, 1862, c. 120, 12 Stat. 489. This corporation was subsequently, under the authority of acts of Congress, consolidated Avith various other corporations, one a corporation chartered by the state of California, thus forming the Central Pacific Railroad Company Avith the powers and franchises of the constituent companies.. The court, therefore, said that, if the Central Pacific Railroad Company Avas not a federal corporation, its most important franchises, including that of constructing the railroad, were conferred upon it by Congress. It was ruled that those franchises could not be taxed by the states. That case is no authority for the proposition that the act of July 24, 1866, conferred a nontaxable franchise upon the companies accepting its terms, and has never been cited by the Supreme Court of the United States as going to that conclusion, as often as this question has arisen. We have already quoted enough from Telegraph Company v. Texas to show that it supports the power of the city of Talladega to levy its license tax.

The cases from the Supreme Court of California and Washington drive to a conclusion different from that we have reached, but they assign a meaning to McCulloch v. Maryland, Telegraph Company v. Texas, and Western Union Telegraph Co. v. Massachusetts, which has not been given to those decisions in the numerous cases in which they have been cited by the Supreme Court of the United States, and from some of which we have quoted. These eases from California, and Washington rely for immediate authority upon the case of California v. Central Pacific Railroad Company. We have said enough to make clear our opinion that these cases are based upon an understanding of the decisions of the Supreme Court of the United States different from our own, and this is sufficient to dispose of them.

It is further insisted that the ordinance must be pronounced invalid because it fixes a tax upon the privilege of sending messages by telegraph between points exclusively within the state without excluding messages sent for the government of the United States. Western Union Company v. Texas, supra, and Le Loup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1383, 32 L. Ed. 311, are cited as authority for this insistence. The judgments of those cases pronounced the taxes there involved to be void because it appeared that the burden or a part of the burden of them fell upon interstate commerce upon which the state nor its subdivisions had power to levy any tax whatever. In the former of these cases it appeared that the tax was estimated on the basis of messages sent, which included messages sent about the business of interstate commerce. As we have seen, the tax for that reason and to that extent only was declared to be void. In Le Loup v. Port of Mobile. the tax was levied upon the occupation without discrimination as to whether it concerned interstate or intrastate business. This court in Moore v. City of Eufaula, 97 Ala. 670, 11 South. 921, proceeding upon reason and the authority of other decisions of the Supreme Court of the United States, refused concession to the idea that a privilege tax was void because It did not affirmatively appear that it did not affect the sending of messages on government business. We are satisfied Avith that decision. In the instant case the tax is limited in the terms of the ordinance levying it to the business of sending messages between points exclusively within the state. The fact that a part of the business done by the company consists in the sending of messages for the government does not affect the right of the state to impose a reasonable privilege tax, as rve believe has appeared from a consideration of the decisions of the Supreme Court of the United States. If government messages are transmitted at a reduced rate which has material effect upon the company’s income at Talladega, that ivas the subject of proof and must have been, and must be uoaa’, taken into account when passing upon the reasonableness of the license charged.

Prima facie the tax ivas reasonable. — Gamble v. Montgomery, 147 Ala. 682, 39 South. 353, and authorities there cited. But it Avas competent for the defendant to shoAV by evidence that it was so unreasonable in amount as to demonstrate an abuse of discretion and an arbitrary interference with private business (Kendrick v. State, 142 Ala. 43, 39 South. 203); and this the defendant endeavored to do. The ordinance imposes a tax for the privilege of transmitting messages beeween the city of Talladega and points Avithin the state. It does not seek to tax interstate business. The- appellant’s company, in the effort to shoAV the unreasonableness of the tax, furnished the figures upon which its argument is based, and those figures have been accepted as correct as far as they go, except in one particular to be noted. The company undertook to show its expenses and business done at Talladega during the year 1908, the year for which the tax was levied, but was not permitted to adduce figures covering the month of January. Thereupon, on the basis of the figures for 11 months, making a pro rata deduction from the amount of the annual license, it shows that the total expense of maintaining the office at Talladega for the 11 months was $1,749.56. The total income for the same period, including inter'and intra. state business, was $2,034.39. The gross income from intrastate business for the period was $465.70, approximately 22 per centum of the entire income on both kinds of business. It is, therefore, assumed that intrastate business should be charged with a like percentage of the entire expense, to wit, 22 per centum of the entire expense, equaling $384.90. To this add a pro rata share of the annual tax, $97.66. The result as thus shown by the appellant is that the company’s intrastate business for the 11 months was done at a loss of $10.86. These figures thus propounded to the court must be amended in one particular against the appellant, though the amendment is not of enough consequence to affect our view of the case. In its statement of expenses the company includes an item of $10 paid bv the office at Talladega in settlement of a claim for damages made against it. It is clear that the company is not entitled to charge itself with this item in order to make out an invalidation of the tax imposed. It thus appears that the company did business during 11 months at a. net loss of 86 cents. On the facts disclosed it is urged that the tax of $100 per annum imposed for the privilege of doing business at Talladega is prohibitory and void.

If it be conceded that- the amount of receipts at the Talladega office from messages to and from points in this state is an accurate measure of the value of the intrastate business to which that office contributes in the way of sending and receiving messages whether the tolls are paid there or elsewhere, and that the apportionment of expenses is just what it ought to be — both which concessions seem to us doubtful — yet we cannot accede to the conclusion, necessarily implied by the argument, that the power of the municipality to tax an occupation is dependent upon and limited by the ability of the occupation to earn a profit. It was said in N. C. & St. L. Ry. v. Attalla, 118 Ala. 368, 24 South. 452, that “the reasonableness or unreasonableness of a license tax cannot be determined by the extent of the business of a single individual. There may be competition or negligence on his part or other considerations affecting the extent of the business.” Granting that appellant’s company had no opposition at Talladega, and that no negligence in the conduct of its business is made to appear, at least one other consideration is that the city could not know in advance whether the business of the appellant’s company would be conducted during the year at a loss or a profit, but it had the right, upon a general survey of all conditions affecting its own welfare and that of the company, so far as they ivere disclosed by the experience of the past and the probabilities of the future, to levy in advance a reasonable tax, and the court must be led irresistibly to the conclusion that the tax is excessive and prohibitory upon a like survey before it can pronounce the tax void. The trifling-deficiency shown in this case occurring as the result of business for one short period does not suffice to show an abuse of the taxing power. See Atlantic, etc., Telegraph Co. v. Philadelphia, 190 U. S. 260, 23 Sup. Ct. 817, 47 L. Ed. 995. Unquestionably the amount of business which would probably be done and the possibility of doing it at a profit are elements to be taken into account. in fixing a license tax for revenue, but we cannot see the end of a doctrine Avhich Avould hold that a municipality in levying for a definite period a tax upon an occupation highly useful, though in its nature monopolistic and so relieved of competition reducing its pro-its, is limited by the poiver of that occupation to earn a profit during that period Nor does the evidence afford that view, at once comprehensive and accurate, of the conditions under Avhich the appellant’s company does business at Talladega year in and year out, which Avould justify us in pronouncing the tax in question to be void. Appellant may be prosecuted for engaging as an agent in the business for which his principal has not taken out a license. Nashville, etc., Ry. Co. v. Attalla, 118 Ala. 362, 24 South. 450, and authorities there cited.

On the showing made in the record Ave are unable to say that the court erred in refusing to permit the Avifcness I)u Bose to testify to the receipts of the office during January, 1908, the month next before the 1.1 months embraced in the period covered by the figures heretofore referred to. The objection seems to have been sustained on the idea that the witness did not have personal knowledge of the fact nor any memorandum, showing the same, known to be correct. Under these conditions, the witness could not be heard to state the fact inquired about.

Affirmed.

Dowdell, O. J., and Simpson, Anderson, McClellan, and Evans, JJ., concur.