27 Mont. 394 | Mont. | 1903
delivered the opinion of the court.
This is an action brought against the defendant company to recover a license tax for conducting the business of a telephone company in Lewis and Clarke county, Montana. The action is brought under Section 4071 of the Political Code, as amended by an Act of the Fifth legislative assembly, approved March 6, 1897 (Laws of 1897, p. 202), which provides that every person, corporation, or association doing business in this state as a telephone company must pay a license, in each county where such business is transacted, of 75 cents per year for each instru-: ment in use.
The complaint contains three causes of action: The first, for the license due on 250 instruments in use during the year commencing July 1, 1899, and ending June 30, 1900; the second,
The answer further alleges: That the defendant has paid its property tax in Lewis and Clarke county, Montana, which includes the general tax on such instruments and other personal property; and that compliance by the defendant with the conditions upon which foreign corporations are permitted to do business in this state creates a contract between defendant company and this state, and the imposition of the license tax sought to be collected in this action impairs the obligation of such contract, and that the law imposing such license tax further violates the constitution of the United States in that it denies to the defendant company the equal protection of the laws.
Upon these pleadings tbe cause came on for trial before tbe court sitting without a jury, and, after having beard tbe proofs of the respective parties, tbe court made certain findings of fact and conclusions of law. Findings 6 and 9 only are material bere. They are as follows:
“(6) That for tbe transaction of its business tbe defendant company has many instruments in Lewis and Clarke county in tbe state of Montana, and in tbe other states above named, and said instruments are arranged for use and some are necessarily used by said company and its customers in receiving and transmitting messages from and to places in Montana, and between tbe county of Lewis and Clarke and all of tbe -.tates into and through which defendant’s lines extend.”
“(9) That tbe instruments of tbe defendant company which are used exclusively in business within tbe state of Montana, if any there are, cannot be separated or discriminated from its instruments used in interstate business; nor does Political Code, Section 4011, Subdivision 2, as amended, make sucb discrimination or separation, but imposes tbe license tax upon each telephone instrument in use without limiting tbe license tax upon instruments used exclusively in local or intrastate business.”
A consideration of tbe pleadings in this case discloses tbe fact that tbe state claims, and the defendant company admits, that during tbe several years mentioned in tbe pleadings tbe defendant company bad used, operated and leased to its patrons in Lewis and Clarke county, Montana, tbe number of telephone
If it be urged that the lower court did not find upon the question of the number of instruments in use in Lewis and Clarke county, it is sufficient to say that a court need not expressly find a fact stated in the pleadings of one party and not denied by the other. A fact admitted by the pleadings will be treated as found in accordance with these admissions. (In re Doyle’s Estate, 73 Cal. 564, 15 Pac. 125.) Presumably the lower court assumed that the instruments mentioned in plaintiff’s complaint and those mentioned in the defendant’s affirmative defense are identical, and disposed of the case by holding that under Section 4071, above, as amended, the imposition of the license tax was an interference with and regulation of interstate commerce; and it is therefore unnecessary for us to> say whether or not, upon the pleadings, the plaintiff was entitled to judgment. Assuming, as the lower court evidently did, that the instruments are identical; does Section 4071, above, as amended, seek to regulate interstate commerce, and to that extent contravene the provisions of Section 8 of Article I of the Constitution of the
1. In view of this finding, the first question to be resolved is this: Upon whom is the burden of making such separation or discrimination imposed, under the pleadings in this case? The complaint charges that the instruments for which it is sought to collect license are used by the defendant company in conducting its business in Lewis and Clarke county, Montana, and these allegations are admitted in the answer. The answer then sets forth the defendant’s affirmative defense to the effect that such instruments (assuming that they are the identical in-' struments mentioned in the complaint), or many of them, are used in transmitting and receiving messages between points in Lewis and Clarke county and points in tire other states mentioned, — in other words, are used in interstate business, and are, for that reason, exempt from the operation of the law. Section 3145 of the Code of Civil Procedure provides: “Each party must prove his own affirmative allegations. Evidence need not be given in support of a negative allegation, except when such negative allegation is an essential part of the statement of the right or title on which the cause of action is founded, nor even in such case when the allegation is a denial of the existence of a document, the custody of which belongs to' the opposite party.” (Wilson v. California Central Railroad Co., 94 Cal. 172, 29 Pac. 861, 17 L. R. A. 685.) In Moore v. City of Eufaula, 97 Ala. 673, 11 South. 922, it is said: “To present a defense, it .(the answer) should aver facts to show that the messages transmitted were in the interest of interstate 'commerce or in obedience to governmental orders, and that the office or place of business in the city of Eufaula was kept and used for these purposes only.”
It will be observed that the license tax is imposed upon the
2. Binding No. 9 further declares that Section 4071 above does not separate or discriminate between instruments used in interstate from those used in intrastate business, hut imposes the license tax upon each telephone instrument in use, without limiting the license tax upon instruments used exclusively in local or intrastate business. This should more properly be designated a conclusion of law; but, in any event, it calls for the decision of this court as to its correctness.
It will bo observed that the language in Section 4071 above is: “Every person, corporation or association doing business in, this state * * must pay a license * * The allegations, of the complaint fairly bring the case within the. terms of this statute. It is to be presumed that in enacting Section 4071 above, and in using therein the terms “doing business in this state,” the legislature did so in view of the constitutional provision conferring upon congress the sole power to regulate interstate commerce, and it will not be implied that it intended to go beyond its lawful powers, in the absence of express statutory terms directly contravening those provisions. In State ex rel. Beek v. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134, 46 L. R. A. 442, 77 Am. St. Rep. 681, it is said: “And it may further be observed that the statute does not in terms apply to interstate business, and it will not be implied that the legislature intended to go beyond its lawful powers in enacting it. If, therefore, it be held that the legislature could not forbid one to engage in the business of a commission merchant, as to interstate shipments, without compliance with the provisions of the state statute, such statute should be construed to apply only to' local or domestic business, and such construction will be followed by
It cannot be said that the language used in Section 40T1, above, expresses any intention on the part of the legislature to transgress the provisions of the constitution above referred to, and no pi’esumption of that kind will be indulged. (Gillette v. Hibbard, Mont. 412.)
3. In Osborne v. State, above, the supreme court of Florida had under consideration the construction of a statute similar in its terms to the one now before this court. The Florida statute provided: “All express companies doing business in tMs state, shall pay * * * a license tax, * * *” (Laws 1893, c. 4115), and in an elaborate opinion it was held that the statute
We are not unmindful of the seeming conflict between the views here expressed and expressions found in the decisions in Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 311, and Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 645, cited by respondent. But, as was said in Osborne v. State, above: “Those expressions are to be viewed with reference to the circumstances under which the supreme court of the United States was then speaking. The state courts which it was reviewing had each declared, in effect, that these statutes were binding upon and effectual as to< companies as doers of interstate business, or, in other words, were a bar to their doing interstate business without having complied with their requirements. This construction has become, in so far as the federal tribunals were concerned, binding upon the federal court as to the effect of each statute within the state enacting it, as much as if it had been expressly stated in the act.”
While there appears to be some conflict in the authorities, we are satisfied that the best-considered cases fully sustain the views herein expressed.
Our conclusion therefore is that the evident intention of the legislature in passing Section 4071, above, was to impose the license tax of 75 cents on each telephone instrument used in purely local or intrastate business, and that as to instruments used in interstate business it was intended to have no application whatever. Under the pleadings in this case, the burden of proof was clearly upon the defendant company to show how many, if any, of its instruments are used in interstate commerce, and the district court erred, first, in holding that the burden of proof of such fact was upon the state, and, second, that the statute failed to make any discrimination, but imposed the license tax indiscriminately upon the instruments used in interstate business as well as upon those used in local business.
Bor these reasons, the judgment is reversed and the cause remanded.
Reversed and remanded.