Western Union Tel. Co. v. Harris
| Decision Date | 11 February 1899 |
| Citation | 52 S.W. 748 |
| Parties | WESTERN UNION TEL. CO. v. HARRIS, Comptroller. |
| Court | Tennessee Supreme Court |
Appeal from chancery court, Davidson county; H. H. Cook, Chancellor.
Bill by Western Union Telegraph Company against James A. Harris, comptroller, to recover an increase of privilege tax paid by complainant under protest. From a decree in favor of complainant, the defendant appeals. Bill dismissed.
G. W. Pickle, Atty. Gen., for appellant. Baxter & Hutcheson, for appellee.
The bill in this case was filed on the 19th of January, 1896, to test the right of the state to increase privilege taxes on telegraph companies, provided for under Laws 1895, Ex. Sess. c. 4, § 7. The tax was paid under protest, and suit brought against the comptroller to recover it under the statute controlling the subject. The chancellor rendered a decree in favor of the complainant, and the state has appealed, and assigned errors. The case was first heard upon bill and demurrer, and, after the state's demurrer was overruled, it declined to answer, and thereupon a judgment pro confesso was taken, and a decree based thereon, and then the appeal was prayed and prosecuted. The recovery was for $1,222.22.
The case is substantially, then, to be tried upon the bill and demurrer, and, when so tried, the statement of facts contained in the bill must be taken as true. The bill contains the following allegations: That the complainant was a corporation duly chartered and organized under the laws of the state of New York, a resident of New York, and having its chief office and place of business in the city of New York. That complainant is a telegraph company, and as such has been for many years, and now is, engaged in the business of transmitting messages from various points in the state of Tennessee to various other points in the same state, and from various points in each and every state of the United States to various points in each of said states, respectively, by use of poles, metallic wires, electricity, and various other electrical appliances and machines. That the general assembly of the state of Tennessee passed an act on the 10th of April, 1893, which was approved the same day, entitled "An act to provide revenue for the state of Tennessee and counties thereof." That section 4 of said act provided for a rate of taxation on certain named privileges. That section 5 provided that certain corporations should pay directly to the comptroller fines or taxes therein named on the privileges exercised by them. That in section 5 it was especially provided as follows: That section 10 of the act provides "that any and all parties, firms or corporations exercising any of the foregoing privileges, must pay the tax as set forth in this act for the exercise of such privileges." That section 12 of the act provides that it shall take effect from and after its passage. That, in addition to the payment of a privilege tax, the complainant, the Western Union Telegraph Company, is required to pay an ad valorem tax upon its property in the state of Tennessee. The bill further alleges that on April 29, 1895, the complainant paid to the comptroller, defendant, James A. Harris, "$4,000 on account of said telegraph company's privilege tax, April 8, 1895, to April 8, 1896." It is further charged: That the general assembly of the state of Tennessee passed an act June 14, 1895, which was approved June 17, 1895, entitled "An act to provide revenue for the state of Tennessee and counties thereof." That section 3 of this act provided a rate of taxation per annum on certain privileges named thereunder. That section 7 provided that certain corporations therein named should pay direct to the comptroller certain taxes on certain privileges. That it expressly provided as follows: That section 17 of this act provides "that any and all parties, firms or corporations, exercising any of the foregoing privileges must pay the tax as set forth in this act for the exercise of such privilege." That section 14 of this act provides that the act shall take effect 40 days after its passage. That the date of the passage of said act was June 14, 1895, and the date of its approval was June 17, 1895, and the date it went into effect, July 28, 1895. It is further alleged that the comptroller presented to complainant the following account, which was paid under protest, and after issuance of a distress warrant:
Western Union Telegraph Company to the
State of Tennessee, Dr
1895. April 8. To privilege to April
8, 1896, one year ........................ $4,000 00
1895. April 28. To privilege April 8
to April 28, 1896, 20 days................ 222 22
1895. July 28. To privilege April 28
to July 28, '96, 3 months ................ 1,000 00
1895. July 28. To privilege increase
act of legislature 1895 .................. 1,000 00
__________
Total ................................. $6,222 22
Credit
April 20. By cash .......................... $4,000 00
_________
Balance due to July 28, 1896 ............... $2,222 22
Penalty .................................... 222 22
_________
$2,444 44
The bill further alleges that defendant, James A. Harris, comptroller, alleged and claimed that there was a balance due, as aforesaid, from complainant to the state of Tennessee, in the sum of $2,444.44, for the exercise of the privilege of transmitting one or more messages by telegraph wire, wholly within the state of Tennessee, for the year ending July 28, 1896; that complainant operates 1,000 miles or more of telegraph wire within the state of Tennessee; that $222 22 of the said sum was claimed as interest or penalty; that, so alleging and claiming, the defendant, Harris, on the 19th day of December 1895, instituted proceedings, and issued a distress warrant, directing, in the usual terms, the sheriff of Davidson county, Tenn., to collect the foregoing sum of money, with all necessary costs and charges, out of complainant; that the sheriff levied the same upon the property of complainant, and complainant, conceiving these proceedings to be illegal and unjust, and against the constitution and laws of the state of Tennessee and of the United States, did, on the 19th day of December, 1895, pay the said sum of $2,444.44 to the defendant, the comptroller, as aforesaid, under protest, and brought this suit within 30 days from that date to recover the same; that defendant, Harris, did, upon the 21st day of December, 1895, pay the $2,444.44 into the state treasury, and that he gave notice to the state treasurer that the sum was paid by complainant under protest; that complainant's payment was made in such a way as to take advantage of the act of the 20th of March, 1873, approved March 21, 1873, entitled "An act to facilitate the collection of revenue," and which provided, among other things, that in all cases where an officer charged by law with the collection of revenue due the state shall institute any proceedings or take any steps for the collection of a sum alleged or claimed to be due by said officer from any citizen, the party against whom the proceeding or step is taken shall, if he shall conceive the same to be unjust or illegal, or against any statute or clause of the constitution of the state, pay the same under protest, and upon his making such payment the officer or collector shall pay said revenue into the state treasury, giving notice at the time of the payment to the comptroller, and that the same was paid under protest, and the party paying such revenue may at any time within 30 days from making such payment, but not longer thereafter, sue said officer for having collected said sum for the recovery thereof, and the same may be tried in any court having jurisdiction of the amount and parties, and if it be determined that the same was wrongly collected as not being due from said party to the state, then the court trying the case must certify of record that the same was wrongfully paid, and ought to be refunded, and thereupon the comptroller shall issue his warrant for the same, which shall be paid in preference to other claims on the treasury.
The contentions of the complainant are thus stated in the bill, viz.: That, as complainant paid $4,000 for the exercise of its privilege for one year from April 8, 1895, to April 8, 1896, it cannot be required to pay any other or further tax for the exercise of said privilege during that year; that the act of April 10, 1893, constituted a contract between the state and the company, to the effect that, if complainant would pay to the state $4,000, complainant would have the right or privilege of transmitting telegraph messages between all points in this state for a period of one year from the date of such payment; that if the act of June 17, 1895, is conceded as having the effect to increase the privilege tax from $4,000 to $5,000 during the year for which the company paid $4,000 (namely, the year April 8, 1895, to April...
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