| Miss. | Oct 15, 1893
delivered the opinion of the court.
This action was instituted by the revenue agent of the state for the recovery of a privilege tax alleged to be due by the appellant for the years 1888 a¡nd 1889, under § 585, code of 1880, and the amendment thereto contained in § 1, ch. 3, acts of 1888. Under the statute thus amended, among other
It will be thus seen at once that this is a tax imposed upon a telegraph company, in lieu of all others, as a privilege tax, and its amount is graduated according to the amount and value of the property measured by miles. It is to be noticed that it is in lieu of all other taxes, state, county, municipal. The reasonableness of the imposition appears in the record, as shown by the second count of the declaration and its exhibits, whereby the appellant seems to be burdened in this way with a tax much less than that which would be produced if its property had been subjected to a single ad valorem tax.
The pleas bring in question the validity of our statute, and aver its conflict with the interstate commerce clause of the constitution of the United States.
The record presents a federal question, and we acknowledge ourselves bound to follow the decisions of the court of last resort of the United States, if that court shall he found to have adjudicated it. Our difficulty arises from our inability to say with confidence what the supreme court of the United States has finally determined in cases of like character. The reported opinions of that court are so irreconcilable in their variances and seeming conflicts, in our view, that it is with diffidence that the impartial student can affirm what will or will not follow jn any given state of case.
If the line of decisions adopted in Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S., 1" court="SCOTUS" date_filed="1878-03-25" href="https://app.midpage.ai/document/pensacola-telegraph-co-v-western-union-telegraph-co-89664?utm_source=webapp" opinion_id="89664">96 U. S., 1; Western Union Tel. Co.
If from generalization we descend to detail, the confusion that prevails in the decisions of the court whose lead we are bound to follow touching interstate commerce, will be seen at once, and their confusion will deepen on protracted examination.
In the case of the Telegraph Co. v. Texas, supra, Mr. Chief Justice Waite, speaking for a unanimous court, said : “ The Western Union Telegraph Company, having accepted the restrictions and obligations of this provision by congress, 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 business.” This very language of the
But in Leloup v. Port of Mobile (as well as in other cases), 127 U. S., Mr. Justice Bradley, speaking for the same united court, says: “Ordinary occupations are taxed in various ways, and, in most cases, legitimately taxed. But we fail to see how a state can tax a business occupation when it cannot tax the business itself. . . . ’ In Western Union Tel. Co. v. Texas, 105 U.S., 460" court="SCOTUS" date_filed="1882-04-18" href="https://app.midpage.ai/document/telegraph-co-v-texas-90600?utm_source=webapp" opinion_id="90600">105 U. S., 460, we decided that a state cannot lay a tax on the interstate business of a telegraph company, as it is interstate commerce. ... In the present case, it is true, the tax is not laid upon individual messages, but it is laid on the occupation or the business of sending such messages. It comes plainly within ¿the principle of the decisions lately made by this court in Robbins v. Taxing District of Shelby County, 120 U.S., 489" court="SCOTUS" date_filed="1887-03-07" href="https://app.midpage.ai/document/robbins-v-shelby-county-taxing-district-91869?utm_source=webapp" opinion_id="91869">120 U. S., 489, and Philadelphia and Southern Steamship Co. v. Pennsylvania, 122 Ib., 326.” And this rule seems to be adopted in one or two later cases. The conflict in the decisions on this point appears to be sharp and irreconcilable.
The case of Osborne v. Mobile, 16 Wall., occupies a most unique position. In this case, the court held that a privilege tax levied upon an express company having business intra.territorial as well as extraterritorial, was not invalid or repugnant to the interstate commerce clause of the federal constitution. In Pickard v. Pullman Southern Car Co., 117 U. S., the case of Osborne v. Mobile was re-examined, and the correctness of its determination re-affirmed; and in Robbins v. Shelby Taxing District, 120 U. S., Mr. Chief Justice Waite and Mr. Justiee Field and Mr. Justice Gray, in their dissenting opinion, refer to it as unchallenged authority. It has
Again, in the case of Gloucester Ferry Co. v. Pennsylvania, 114 U.S., 196" court="SCOTUS" date_filed="1885-03-30" href="https://app.midpage.ai/document/gloucester-ferry-co-v-pennsylvania-91358?utm_source=webapp" opinion_id="91358">114 U. S., 196, it was held that the transportation of passengers and freight for hire by a steam ferry across the Delaware river, from New Jersey to Philadelphia, by a New Jersey corporation, is interstate commerce, and not subject to taxation by the state of Pennsylvania, while in Wiggins Ferry Co. v. East St. Louis, 107 U.S., 365" court="SCOTUS" date_filed="1883-03-18" href="https://app.midpage.ai/document/wiggins-ferry-co-v-east-st-louis-90771?utm_source=webapp" opinion_id="90771">107 U. S., 365, the court holds that the state has the power to impose a license fee upon ferry-keepers living in the state for boats which they own and use in conveying, from a landing in the state, passengers and goods across a navigable river to a landing in another state.
Once more, Pickard v. Pullman Southern Car Co., 117 U.S., 34" court="SCOTUS" date_filed="1886-03-06" href="https://app.midpage.ai/document/pickard-v-pullman-southern-car-co-91581?utm_source=webapp" opinion_id="91581">117 U. S., 34; Leloup v. Mobile, 127 U.S., 640" court="SCOTUS" date_filed="1888-05-14" href="https://app.midpage.ai/document/leloup-v-port-of-mobile-92291?utm_source=webapp" opinion_id="92291">127 U. S., 640, and Norfolk & Southern Railroad Co. v. Pennsylvania, 136 U.S., 114" court="SCOTUS" date_filed="1890-05-19" href="https://app.midpage.ai/document/norfolk--western-railroad-v-pennsylvania-92814?utm_source=webapp" opinion_id="92814">136 U. S., 114, in no doubtful terms deny to the states the right to impose a license tax on any agency employed, even partially, in interstate commerce; but, on the other hand, Telegraph Co. v. Massachusetts, 125 U.S., 530" court="SCOTUS" date_filed="1888-03-19" href="https://app.midpage.ai/document/wu-tel-co-v-massachusetts-92205?utm_source=webapp" opinion_id="92205">125 U. S., 530, and Maine v. Grand Trunk Railway Co., 142 U.S., 217" court="SCOTUS" date_filed="1891-12-14" href="https://app.midpage.ai/document/maine-v-grand-trunk-railway-co-93211?utm_source=webapp" opinion_id="93211">142 U. S., 217, unmistakably uphold a tax imposed upon a railway company engaged partially in interstate commerce, for the privilege of exercising its franchise. It is true the amount of these privilege taxes is arrived at by the ascertainment of the earnings of the railway company within the state, and by the ascertainment of the valuation of the property within the state, in the telegraph company case; but they are, by the very terms of the statutes of the two states imposing them, in the one case “ an annual excise tax for the privilege of exercising its franchise in this state, which, with the tax provided for in section one, shall be in lieu of all taxes upon such railroad, its property and stock,” and in the other “ a tax upon its corporate franchises at a valuation
Are we mistaken in declaring that the decisions of the supreme court of the United States are not concordant on this most perplexing subject? We support ourselves in our perplexity by quoting the language of Mr. Justice Miller in Fargo v. Michigan, 121 U.S., 230" court="SCOTUS" date_filed="1887-04-04" href="https://app.midpage.ai/document/fargo-v-michigan-91914?utm_source=webapp" opinion_id="91914">121 U. S., 230. Speaking on this very subject, the learned judge said: “With reference to the utterances of this court, until within a very short time past, as to what constitutes commerce among the several states, and as to what enactments by the state legislature are in violation of the constitutional provision on that subject, it may be admitted that the court has not always employed the same language, and that all the judges of the court who have written opinions for it may not have meant precisely the same thing.” It appears to us that it is just and altogether decorous now to say that repeated and careful study of the decisions between 121 and 148 U. S. will warrant us also in asserting that the language employed by the court in the more recent cases of this character has not been the same, and that the judges who have written the later opinions have
This is the case of a foreign corporation admitted to the use and enjoyment of its corporate franchises in our state upon terms of perfect equality with all others. It is freely permitted to engage in the vast and varied employments connected with its business; it has- the use. and enjoyment of the country highways of the state, and the streets of our villages, towns and cities, for the planting of its poles and the construction of its lines; and it has the care and protection of our laws and government. In return, the state claims the right to treat it as she treats similar corporations chartered by her own authority. She asserts her authority to tax the exercise of its franchises in her midst as she does all others, domestic as well as foreign corporations. The state may tax its property as she does all other property, of persons or corporations, within her limits. She may tax the exercise of its franchises within her borders and under the sheltering protection of her laws and government, and no foreign corporation may arrogantly assume any superiority over her domestic corporations. The privilege tax, the tax on the business, the occupation, the tax on the exercise of franchises, may be incidentally burdensome to interstate commerce. It does affect the business somewhat and inevitably ; but so does ah ad valorem tax on the property employed in such commerce. It subtracts that much from the sum-total engaged in the traffic. So does the tax on gross receipts, as in the case of State Tax on Railway Gross Receipts, 15 Wall.; so does the tax for the privilege of exercising its franchises by a railroad company in any state, ascertainable and determinable by the amount of its gross transportation receipts scaled as required in Maine v. Grand
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 o.f taxation in any shape. Eor the use and occupation of the public roads of this state, for protection of its laws and government in the exercise of its franchises, and as its reasonable and proper contribution for the support of the government whose care and shelter it enjoys, the state has imposed a privilege tax, ascertainable and determinable by the number of miles of Avire in this state, in lieu of all other taxes,'and in an amount less than an ad valorem tax on its visible property would yield. The appellant is -reasonably required to pay what is called a privilege tax, but it is a tax in lieu of all ad valorem and other taxes, state, county and municipal, on property in this state. The state has chosen to impose a smaller burden than she might have done, unquestionably, if the property of the appellant had been subjected to the same rate of taxation as all other property whose situs is within her borders. By the imposition of a certain tax per mile on the lines wholly within her limits, the state secures from appellant that which appears certainly not to he a sum in excess of the amount which might have been imposed as an ad valorem tax. It seems to us that this position is supported by the opinions delivered and the results reached in Osborne v. Mobile, Telegraph Company v. Massachusetts, Maine v. Grand Trunk Railway Company, Ficklin v. Shelby County and St. Louis v. Western Union Telegraph Company, not to mention others that collaterally yet powerfully tend in the same direction.
In the case at bar there is no taxation of messages, inter
We adopt the language of Mr. Justice Miller in delivering the opinion of the court in Western Union Telegraph Co. v. Massachusetts: “ While the state could not interfere by any specific statute to prevent a corporation from placing its lines along their post roads, or stop the use of them after they were placed there, nevertheless, the company receiving the benefits of the laws of the state for the protection of its property and its rights, is liable to be taxed upon its real and 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 another 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,”
Affirmed.