Postal Tel. Cable Co v. City Of Norfolk
| Decision Date | 15 January 1903 |
| Citation | 43 S.E. 207,101 Va. 125 |
| Parties | POSTAL TEL. CABLE CO. v. CITY OF NORFOLK. |
| Court | Virginia Supreme Court |
TELEGRAPH COMPANIES — MUNICIPAL TAXATION—LICENSES—ORDINANCE — CONSTITUTIONALITY — REGULATION OF COMMERCE — PRIVILEGES.
1. Norfolk City Ordinance No. 126 provides that any corporation engaged in sending telegrams to or from the city of Norfolk to or from points within the state of Virginia, excepting telegrams sent to or received by the government of the United States or of the state or its agents or officers, shall pay a license tax of $250, and in addition $1 for each pole, and $1 for each 100 feet of conduits on the streets or alleys of the city owned by such person or corporation. Ordinance No. 138 declares that nothing contained therein shall be construed as imposing a license tax on, or otherwise regulating or restricting, foreign or interstate commerce, and any business or portion thereof which is embraced in the term "interstate commerce" or in the term "foreign commerce." Held, that ordinance No. 126 only attempted to license state business, and was, therefore, not in violation of Const. U. S. art. 1, § 8, conferring on congress sole power to regulate commerce among the several states.
2. Norfolk City Ordinance No. 126, imposing a license tax on corporations engaged in sending and receiving telegrams in the city of Norfolk to or from points within the state of $250, and in addition $1 per pole on each pole and $1 on each 100 feet of conduits in the streets and alleys of such city, imposes a tax on such corporation's privileges within the city, and not on its property, and is therefore not in violation of Const, art. 10, § 4, authorizing the general assembly to levy a tax on business which cannot be reached by the ad valorem system of taxation, though the telegraph company's property was taxed by the state by such system.
Error from circuit court of city of Norfolk.
Action by the city of Norfolk against the Postal Telegraph-Cable Company to collect a fine for nonpayment of taxes. From a judgment of the circuit court affirming a police justice's judgment in favor of plaintiff on writ of error, defendant brings error-Affirmed.
J. R. Mcintosh and C. C. Anderson, for plaintiff in error.
W. H. Taylor, for defendant in error.
KEITH, P. The Postal Telegraph-Cable Company is a corporation chartered under the laws of the state of New York, which has constructed, maintains, and operates tel-egraph lines in many of the states, including the state of Virginia, and in the year 1900 had an office and place of business in the city of Norfolk, and was engaged in the transmission of telegraph messages from the city of Norfolk to other points in other states and from other states and places beyond this state into the city of Norfolk, in the state of Virginia; that is to say, it was an instrumentality in the conduct of interstate commerce as well as business within the state. It appears that some time before the year 1900 it had duly accepted the provisions of an act of congress approved July 24, 1866, 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, " as required by section 5268 of the Revised Statutes of the United States [U. S. Comp. St 1901, p. 3581].
By an act of March 6, 1890, amended by an act of March 3, 1898 (Acts 1897-98, p. 752), petitioner was required, on or before the 1st day of June of each year to make report, verified by oath, to the auditor of public accounts of the state of Virginia, of all real and personal property owned by it as of the 1st day of February in each year, showing what part of its property is owned in each county or corporation, and classifying the same. This report was duly made to the auditor of public accounts, showing the aggregate value of the property of the Postal Telegraph-Cable Company in the state of Virginia to be $52,076.24, and the aggregate value of its property located in the city of Norfolk to be $555.
It further appears that an ad valorem tax of 40 cents on every $100 worth of property owned by petitioner was assessed by the state and paid by the company; that the taxes by the company to the state for the year 1900 amounted to the sum of $949.83, being an ad valorem tax of 40 cents on $100 upon the valuation of the property in the state at $52,076.24, and a further tax of $2 on each mile of poles owned and operated within the state, and also a charge of 2 per centum of the gross interstate business. It further appears that each county and municipality of the state in which such company owns property may impose an ad valorem tax upon the assessed value of the same as assessed by the state; and that the city of Norfolk, by virtue of section 126 of "An ordinance imposing taxes on property, persons and licenses, for the payment of interest on the city debt, and to meet general appropriations for the year beginning July 1, 1900, " imposed a privileged tax of $250 upon the defendant company, and in addition $1 per pole on each pole, and $1 on every 100 feet of conduits on the streets and alleys of the city of Norfolk owned and used by it, for the nonpayment of which tax the prosecution in this cause was commenced and maintained, which tax the or dinance required in its first section to be paid before the petitioning company should engage in any business in the city of Norfolk, and provided in section 142 a penalty if same were not paid on or before May 31st. It further appears that the city of Norfolk could have assessed and required the defendant company to pay an ad valorem tax upon the valuation of its property in the city.
The Postal Telegraph-Cable Company having failed to pay the taxes to the city as provided by the ordinance above cited, it was summoned before a police justice to show cause why it should not be fined, was found guilty, and judgment entered against it for $21.50, being the amount of the fine and costs. From this judgment a writ of error was awarded by the circuit court, and at a later day it was affirmed. Thereupon a petition was presented to this court, and a writ of error awarded.
The first error assigned is that the ordinance of the city of Norfolk is in violation of section 8, art. 1, of the constitution of the United States, which confers upon the congress of the United States power "to regulate commerce with foreign states and among the several states and with the Indian tribes."
The ordinance of the city of Norfolk is in the following words:
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...property acquired to tax the same, within the limitations pointed out in the cases heretofore cited." See, also, Postal Telegraph Co. v. Norfolk, 101 Va. 125, 43 S. E. 207; State v. Western Union Tel. Co., 75 Kan. 650, 90 Pac. The Kansas case cited, and from which we have heretofore quoted,......
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