City of St. Louis v. Western Union Tel. Co.
| Decision Date | 19 June 1889 |
| Citation | 39 F. 59 |
| Parties | CITY OF ST. LOUIS v. WESTERN UNION TEL. CO. |
| Court | U.S. District Court — Eastern District of Missouri |
Leverett Bell, City Counsellor, for plaintiff.
Cochran Dickson & Smith, for defendant.
On March 23, 1884, the municipal assembly of the city of St Louis amended ordinance No. 11,604, entitled 'An ordinance to regulate the erection of telegraph and telephone poles,' by adding thereto four new sections, numbered 11 12, 13, and 14. Section No. 11 is as follows:
'From and after the first day of July, 1884, all telegraph and telephone companies which are not by ordinance taxed on their gross income for city purposes, shall pay to the city of St. Louis, for the privilege of using the streets, alleys, and public places thereof, the sum of five dollars per annum for each and every telegraph or telephone pole erected or used by them in the streets, alleys, and public places in said city.'
Suit in the nature of an action of debt is brought under this section to recover the sum of $22,635, which is alleged to have become due in consequence of the use by the defendant of 1,509 telegraph poles since July 1, 1884; said poles having been erected prior to that date. A question is raised as to the right of the plaintiff to sue in such form, inasmuch as the ordinance contains no provisions touching the manner of bringing suits to enforce the payment of the tax; but, waiving that question, I am of the opinion that judgment must be entered for defendant on other and more meritorious grounds also urged by defendant's counsel. The city of St. Louis was originally authorized by its charter 'to license, tax, and regulate * * * telegraph companies,' etc.; but its power to tax the property, real and personal, of telegraph companies, including their franchises, was taken away by implication by an act approved on the 21st of April, 1877, now section 6901 of the Revised Statutes of Missouri. Section 11 of the ordinance cannot be supported, therefore, as an exercise of a taxing power vested in the municipality, unless it be contended that the municipality still has power to impose a 'privilege tax' on telegraph companies, and that the charge in question of five dollars per pole is in the nature of a privilege tax levied against the defendant; that is to say, a tax imposed on it as a condition precedent to its right to carry on the telegraph business in the city of St. Louis.
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