City Council of Augusta v. Augusta & A. Ry. Co.
| Decision Date | 15 July 1908 |
| Citation | 61 S.E. 992,130 Ga. 815 |
| Parties | CITY COUNCIL OF AUGUSTA et al. v. AUGUSTA & A. RY. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a city grants permission to an electric railway company exclusively engaged in the transportation of interstate freight and passengers, to use certain of its streets by running its cars over the tracks of a local street railway company, under the terms, conditions, and limitations specified in the contract between the two companies, it cannot impose a specific annual tax on the business of such railway company for running its cars in the city's streets. Such a tax is laid on the business of carrying on interstate commerce, and amounts to a regulation of it, which under the federal Constitution belongs solely to Congress.
[Ed Note.-For cases in point, see Cent. Dig. vol. 10, Commerce, § 114.]
Error from Superior Court, Richmond County; H. C. Hammond, Judge.
Action by the Augusta & Aiken Railway Company against the City Council of Augusta and others. Judgment for plaintiff, and defendants bring error. Affirmed.
C Henry Cohen, for plaintiffs in error.
Boykin Wright and Geo. T. Jackson, for defendant in error.
The first contention advanced by the defendant in error as a reason why it is not liable for the tax which the city of Augusta is asserting its right to collect is that, inasmuch as it is a railroad company engaged exclusively as a common carrier of interstate freight and passengers, it is within the protection of the commerce clause of the Constitution of the United States, which reserves to Congress the exclusive power to regulate commerce among the several states. A long line of decisions of the Supreme Court of the United States, beginning with the case of Brown v. Maryland, 12 Wheat. 419, 6 L.Ed. 678, has firmly established the proposition that a tax laid on the occupation or business of carrying on interstate commerce is a burden on that commerce, and amounts to a regulation of it, which under the Constitution of the United States belongs solely to Congress. Williams v. Fears, 110 Ga. 589, 35 S.E. 699, 50 L.R.A. 685. It is admitted in the record that the defendant in error is a railroad company, exclusively engaged in transporting freight and passengers to and from the city of Augusta in this state to and from points in the state of South Carolina, and that it does not handle any intrastate business. This being true, the city of Augusta cannot legally impose a tax on its business as an interstate carrier. The city of Augusta, by its counsel, denies that the ordinance fixes a tax on the business of the defendant in error, but insists that it imposes a license tax on every railroad company "for running cars on the streets of the city of Augusta," and that the city of Augusta may lawfully exact of any railroad company a license tax or rental charge for the use of its streets. It will be seen from the statement of facts that the Augusta & Aiken Railway Company contracted with the local intraurban street railway company for the use of its tracks along certain streets, and that the city of Augusta by ordinance on October 6, 1903, granted permission to the defendant in error to use the streets of Augusta by running its cars upon the tracks of the Augusta Railway Company on certain streets, under the terms of the contract between the Augusta & Aiken Railway Company and the Augusta Railway Company. The city in this ordinance exacted no terms and imposed no restrictions outside of the contract between the two railway companies; and the ordinance neither reserved nor surrendered any power to tax.
A municipality sustains a dual relation to its streets and thoroughfares-that of sovereign and proprietor. In the latter capacity a municipality may under certain circumstances contract for the use of its streets. A municipal charge for the use of the streets for any lawful purpose is the exercise of the city's right of proprietorship, and is not the imposition of a privilege or license tax. In the well-considered case of St. Louis v. Western Union Telegraph Co., 148 U.S. 92, 13 S.Ct. 485, 37 L.Ed. 380 it appeared that the city of St. Louis passed an ordinance authorizing telephone and telegraph companies to set their poles upon the streets, subject to certain prescribed regulations, and the city subsequently passed another ordinance amendatory of the first, imposing upon all telegraph and telephone companies which were not taxed on their gross incomes a charge of $5 per annum upon each telegraph or telephone pole for the privilege of using the streets. It was held that the charge was not a privilege or license tax, as the amount to be paid was not graduated by the amount of the business, nor was any stated sum fixed for the privilege...
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