W. U. T. Co. v. State

• Decision Date: 12 December 1884
• Docket Number: Case No. 1619.
• Citation: 62 Tex. 630
• Parties: WESTERN U. T. CO. v. THE STATE OF TEXAS.
• Court: Texas Supreme Court

62 Tex. 630

WESTERN U. T. CO.

v.THE STATE OF TEXAS.

Case No. 1619.

Supreme Court of Texas.

Dec. 12, 1884.

APPEAL from Travis. Tried below before the Hon. A. S. Walker.

Walton & Hill, for appellant, cited: 105 U. S., 460;Ex parteTowles, 48 Tex., 413, 442; Cooley on Const. Lim., p. 214, (*177); Clegg v. State, 42 Tex., 605, 611;Lockhart v. City of Houston, 45 Tex., 317, 324; Cooley on Tax., pp. 200-202, and notes, 208, 250, 260, 295, 541; Texas Bank. and Ins. Co. v. State, 42 Tex., 636, 637; Webber v. Reinhard, 73 Pa. St., 370; State v. Hodges, 14 Rich. (S. C.), 256.

That the tax was uncertain and could not be enforced, they cited: Lockhart v. City of Houston, 45 Tex., 324; Webber v. Reinhard, 73 Pa. St., 375.

J. D. Templeton, Attorney-General, and E. T. Moore and D. W. Doom, for the state, cited: Whart. on Ev., secs. 440, 446, 508, 512, 1290; Hardy v. Merrill, 56 N. H., 241.

STAYTON, ASSOCIATE JUSTICE.

The nature of this action and the several steps taken therein are thus correctly stated in brief for appellant:

“This suit was begun August 28, 1880, in the district court of Travis county, by the state of Texas, for the purpose of recovering from the Western Union Telegraph Company the taxes (one cent for each full rate, and one-half cent for each less than full-rate message sent over appellant's lines in Texas) fixed by article 4665 of the Revised Statutes of Texas, for the quarters beginning October 1, 1879, and ending June 30, 1880.

The company defended on the ground that some of the messages so sent and sought to be taxed were messages from points in Texas to points in the United States and territories of the United States outside of Texas, and relating to commerce between the states; and others were messages from and to the different department agencies and offices of the United States, and concerned the business and governmental affairs of the United States, and that the law creating said tax was void under the constitution and laws of the United States and the constitution of Texas.

The court held the tax valid, and rendered judgment against the company March 10, 1881, for the tax on the entire number of messages sent, and for the interest from January 1, after the dates at which the taxes should, by the statute, have been paid. The company appealed from that judgment to this court, where, at the Austin term, 1881 (W. U. Tel. Co. v. State, 55 Tex., 314), the judgment of the district court of Travis county was affirmed as to the validity of the tax, but reversed as to the interest allowed. The company then took the case, by writ of error, to the supreme court of the United States, where (W. U. Tel. Co. v. State of Texas, 105 U. S., 460) the judgment of the supreme court of Texas was reversed and the cause remanded, the statute of Texas (R. S., art. 4665) under which the tax was sought to be recovered being held void in so far as the same applied to or was sought to be enforced against interstate and governmental messages; the question as to whether the statute remained enforceable as against other messages being relegated to the courts of Texas. The case having been in turn remanded to the district court of Travis county, the state, by supplemental petition, set up that not more than a stated per cent. of the whole number of messages sent during said quarters were governmental messages, and that of the remainder about a stated per cent. were sent from points to points wholly in Texas, and asked judgment for the tax on the messages other than government messages sent from point to point in Texas.

The defendant filed demurrers and general denial. The case was tried before the court without a jury, 1883, and judgment rendered for the tax according to the Revised Statutes, art. 4665, on the number of messages estimated by the court from the evidence--to have been sent during the time sued for--wholly within Texas, and not governmental messages. Amount of tax adjudged, $1,196.82. The defendant again appealed, and brings the case up for revision.

The court below filed findings of fact and conclusions of law. The record also contained a statement of facts.”

FINDINGS OF FACT.

1. “The defendant was an incorporated and chartered telegraph company, doing business in the state of Texas from the 1st day of October, 1879, continuously, to the 1st day of July, 1880, during said term sending and receiving telegraphic dispatches as a business. Its lines extended along the railroads of Texas and into and through nearly all the states of the Union, and to Washington City, D. C.

2. That during the months of October, November and December, 1879, said company sent sixty-nine thousand five hundred and ninety-three full-rate messages, and forty-five thousand six hundred and forty-six half-rate messages in the state, and that during the months of January, February, March, April, May and June, 1880, it sent ninety-nine thousand four hundred and eighty-three full-rate and fifty-three thousand seven hundred and sixty-two half-rate messages.

3. That said company has an officer and resident agent or employee, residing and on duty in his employ, for defendant, in Travis county, Texas.

4. That the defendant is chargeable for $2,197.80 taxes under art. 4665, Revised Statutes, as occupation taxes, for and during the said time from October 1, 1879, to July 1, 1880….

5. It also appeared from the testimony that the number of messages above stated included all messages sent from Western Union Telegraph offices within Texas, to all other points in the United States, both within and out of the state of Texas; also messages sent from the government officers, agents of the United States in Texas, to other officers, agents or departments of the said United States government; also all messages sent over Western Union line from points in Texas relative to commerce between Texas and other states of the Union during the time stated. A large proportion of the messages sent belong to the classes here enumerated.

6. The defendant company has about one hundred and twenty-five offices in Texas. The number of messages sent without the state was not shown, nor the amount sent by the United States government, its agents or employees, nor those relating to commerce during the time.

7. The court also certified the following additional facts to those found on former trial:

(1) That ninety-nine thousand seven hundred and fifty-four full-rate and forty-two thousand five hundred and ninety-one half-rate messages were sent (to points within the state of Texas) by defendant from October 1, 1879, to July 1, 1880, and that during said time one thousand six hundred and seven United States government messages were sent. These last estimated as proportionally divided between the whole and half-rate messages.

(2) Estimating the tax upon this basis at the rate fixed by the statute, there is found due as follows:

+--------------------------------------------------+
                ¦On full-rate messages                  ¦$997 54   ¦
                +---------------------------------------+----------¦
                ¦On half-rate messages                  ¦212 95    ¦
                +---------------------------------------+----------¦
                ¦

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