Leloup v. Port of Mobile

• Citation: 127 U.S. 640,32 L.Ed. 311,8 S.Ct. 1380
• Parties: LELOUP v. PORT OF MOBILE
• Decision Date: 14 May 1888
• Court: United States Supreme Court

8 S.Ct. 1380

127 U.S. 640

32 L.Ed. 311

LELOUP v. PORT OF MOBILE.

May 14, 1888.

Gaylerd B. Clark, for plaintiff in error.

BRADLEY, J.

This was an action brought in the Mobile circuit court, in the state of Alabama, by the Port of Mobile, a municipal corporation, against Edward Leloup, agent of the Western Union Telegraph Company, to recover a penalty imposed upon him for the violation of an ordinance of said corporation, adopted in pursuance of the powers given to it by the legislature of Alabama, and in force in August, 1883. The ordinance was as follows, to-wit: 'Be it ordained by the Mobile Police Board, that the license tax for the year, from the 15th of March, 1883, to the 15th of March, 1884, be, and the same is hereby, fixed as follows: * * * On telegraph companies, $225. * * * Be it further ordained: For each and every violation of the aforesaid ordinance the person convicted thereof shall be fined by the recorder not less than one nor more than fifty dollars.' The complaint averred that the defendant, being the managing agent of the Western Union Telegraph Company, a corporation having its place of business in the said port of Mobile, and then and there engaged in the business and occupation of transmitting telegrams from and to points within the state of Alabama and between the private individuals of the state of Alabama, as well as between citizens of said state and citizens of other states, committed a breach of said ordinance by neglecting and refusing to pay said license to the said municipal corporation. The complainant further averred that for this breach the recorder of the port of Mobile imposed on the defendant a fine of five dollars, for which sum the suit was brought. The defendant pleaded that at the time of the alleged breach of said ordinance he was the duly appointed manager, at the port of Mobile, of the Western Union Telegraph Company. That said company 'was, prior to the 5th day of June, 1867, a telegraph company duly incorporated and organized under the laws of the state of New York, and by its charter authorized to construct, maintain, and operate lines of telegraph in and between the various states of the Union, including the state of Alabama. That on said 5th day of June, 1867, the said telegraph company duly filed its written acceptance with the postmaster general of the United States of the restrictions and obligations of an act of congress entitled 'An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes,' approved July 24, 1866. That in accordance with the authority of its said charter and the said act of congress, ad by agreement with the railroad companies, the said telegraph company constructed its lines, and was at the time of the said alleged breach of said ordinance, maintaining, and operating said lines of telegraph, on the various public railroads leading into or through the said port of Mobile, to-wit, the Mobile & Ohio Railroad, a railroad extending from the said port of Mobile, in Alabama, through the states of Mississippi, Tennessee, and Kentucky, to Cairo, in the state of Illinois; the Louisville & Nashville Railroad, extending from Cincinnati, in the state of Ohio, through said port of Mobile, to New Orleans, in the state of Louisiana, with a branch extending from said state of Alabama over the Pensacola & Louisville Railroad to Pensacola, in the state of Florida. That the said telegraph lines so running into or through said port of Mobile connected with and extended beyond the termini of the said railroads over other railroads, making continuous lines of telegraph from the office of said company, in said port of Mobile, to, through, and over all of the principal railroads, post roads, and military roads in and of the United States, and having offices for the transaction of telegraph business in the departments at Washington, in the District of Columbia, and in all of the principal cities, towns, and villages in each of the United States, and in the territories thereof. That all of said railroads so leading into and through the said port of Mobile and elsewhere in the United States are public highways, and that the daily mails of the United States are regularly carried thereon, under authority of law and the direction of the postmaster general, and that said railroads and each of them are post roads of the United States. That said telegraph lines are also constructed under and across the navigable streams of the United States, in the state of Alabama and in the other states of the Union, but in all cases said lines are so constructed and maintained as not to obstruct the navigation of such streams and the ordinary travel on such military and post roads. That the said telegraph company was, before and during said year, commencing March 15, 1883, and now is, engaged in the business of sending and receiving telegrams over said lines for the public between its said office in the port of Mobile and other places in other states and territories of the United States, and to and from foreign countries; also in sending telegraphic communications between the several departments of the government of the United States, and their officers and agents, giving priority to said official telegraphic communications over all other business. And defendant avers that said official telegrams have been and are sent at rates which have been fixed by the postmaster general annually since the said 5th of June, 1867. And defendant avers that as the manager of said company, and in its name and under its direction and appointment, and in no other manner or capacity, was he engaged in said telegraph business at the time and the manner as alleged in said complaint.' To this plea a demurrer was filed and sustained by the court, and judgment was given for the plaintiff; and, on appeal to the supreme court of Alabama, this judgment was affirmed. The present writ of error is brought to review the judgment of the supreme court. That court adopted its opinion given on a previous occasion between the same parties, in which the circuit court had decided in favor of the defendant, and its decision was reversed. In that opinion the supreme court said: 'The defense was that the ordinance is an attempt to regulate commerce, and violative of the clause of the constitution of the United States which confers on congress the 'power to regulate commerce with foreign nations and among the several states.' The circuit court held the defense good, and gave judgment against the port of Mobile. Is the ordinance a violation of the constitution of the United States? We will not gainsay that this license tax was imposed as a revenuem easure,—as a means of taxing the business, and thus compelling it to aid in supporting the city government. That no revenue for state or municipal purposes can be derived from the agencies or instrumentalities of commerce no one will contend. The question generally mooted is, how shall this end be attained? In the light of the many adjudications on the subject, the ablest jurists will admit that the line which separates the power from its abuse is sometimes very difficult to trace. No possible good could come of any attempt to collate, explain, and harmonize them. We will not attempt it. We confess ourselves unable to daw a distinction between this case and the principle involved in Osborne v. Mobile, 16 Wall. 479. In that case the license levy was upheld, and we think it should be in this. Joseph v. Randolph, 71 Ala. 499.'

In approaching the question thus...