Western Union Telegraph Company v. State

• Citation: 101 S.W. 748,82 Ark. 309
• Parties: WESTERN UNION TELEGRAPH COMPANY v. STATE
• Decision Date: 18 March 1907
• Court: Supreme Court of Arkansas

101 S.W. 748

82 Ark. 309

WESTERN UNION TELEGRAPH COMPANY v. STATE

Supreme Court of Arkansas

March 18, 1907

Appeal from Pulaski Circuit Court, Second Division; Edward W Winfield, Judge; affirmed.

Judgment affirmed.

Rose Hemingway, Cantrell & Loughborough, for appellant.

Sections 825 and 832 of Kirby's Digest have no application to corporations engaged in interstate commerce. 57 Ark. 24; 54 Id. 566.

The States can not tax any instrumentality of the government or interstate commerce. 96 U.S. 1. Commercial intercourse is an element of commerce. 9 Wheat. 1. The electric telegraph is one of the necessities of commerce. Id. A State has no right to exclude a telegraph company from doing business within its borders because its tax is not paid. 125 U.S. 530 No State can exact any license fee of any corporation engaged in interstate commerce, though it also does a local business. 127 U.S. 640. It is the duty of Congress to take care that transmission of intelligence between the States be not obstructed by State legislation. 96 U.S. 1. State laws are unconstitutional which impose a tax on messages sent by any person from one State to another. 105 U.S. 460. A State can not tax property beyond its borders. 15 Wall. 300; 153 U.S. 646. A State may exclude from its borders corporations not engaged in interstate commerce, but when the corporation has been admitted and has made investments here, it becomes a "person," within the meaning of the Federal Constitution. 118 U.S. 394; 142 Id. 386; 165 Id. 150; 169 U.S. 466. The statute denies to appellant the equal protection of the laws, and takes its property without due process of law. 118 U.S. 369. Where the Legislature takes up a whole subject, and covers the entire ground of a former statute, and intends it as a substitute therefor, the prior act will be repealed. 27 Ark. 419; 31 Id. 17; 46 Id. 438; 47 Id. 488; 65 Id. 508.

Lewis Rhoton and De E. Bradshaw, for appellee.

The conditions upon which a foreign corporation is permitted to do business within a State are entirely within the discretion of the Legislature. 69 Ark. 521. The same is true of telegraph companies. 42 Am. St. 476. The act is not unreasonable. The State may regulate the manner in which the company's lines shall be constructed and maintained over its highways. 107 N.Y. 593; 145 U.S. 175; 16 F. 309; 12 Mo.App. 494; 148 Pa.St. 117; 12 A. 144. The State may provide that offices once established shall not be discontinued. 74 Miss. 80. The State may prescribe the rate to be charged for messages sent from one point in the State to another. 186 U.S. 238; 113 N.C. 213. The granting to Congress of authority to regulate interstate commerce did not involve the surrender by the States of their police powers. 155 U.S. 471. Trains carrying interstate commerce may be required by the State through which they pass to stop at certain villages. 173 U.S. 285. The passage of this act was a legitimate exercise of police power. 183 U.S. 21.

If appellant had restricted its business to governmental and interstate commerce, then there might be some room for its contention here. But if its contention be correct, then it can go into business which is in competition with the citizens of our own State, and refuse to comply with the law because some of its business is interstate or foreign commerce.

OPINION

MCCULLOCH, J.

Appellant is a corporation organized under the laws of the State of New York, and does a telegraph business throughout the United States and foreign countries, and also does local or intrastate business in the State of Arkansas.

This is an action instituted by the Prosecuting Attorney on behalf of the State against appellant to recover the penalty prescribed by statute for its failure to file with the Secretary of State a copy of its articles of corporation and to pay the fee therefor required by law.

The statute alleged to have been violated by appellant is as follows:

"Section 2. Every company or corporation incorporated under the laws of any other State, Territory or country, now or hereafter doing business in this State, shall file in the office of the Secretary of State of this State a copy of its charter, or articles of incorporation, or association; or, in case such company or corporation is incorporated merely by a certificate, then a copy of its certificate of incorporation, duly authenticated and certified by the proper authority. The Secretary of State shall cause all such charters, articles of incorporation, or association, so filed, to be duly recorded in a book kept for that purpose. And such corporation shall be required to pay into the treasury of the State incorporating and other fees equal to those required of similar corporations formed within and under the laws of this State. Upon compliance with the above provisions by said corporations, the Secretary of State shall cause to be issued to said corporation a copy of such charter, or articles of incorporation, or certificate so filed, properly certified under the seal of his office, and a copy of such charter or articles of incorporation or certificate, certified to by the Secretary of State, shall be taken by all the courts of this State as evidence that the said corporation has complied with the provisions of this act, and is entitled to all the rights and benefits therein conferred. And such corporation shall be entitled to all the rights and privileges and subject to all the penalties conferred and imposed by the laws of this State upon similar corporations formed and existing under the laws of this State; provided, that the provisions of this act requiring copy of original articles of incorporation or charter, and certificate naming an agent, and to pay certain fees therefor, shall not apply to railroad companies which have heretofore built their lines of railroad into or through this State; provided, further, that the provisions of this act are not intended and shall not apply to "drummers" or traveling salesmen soliciting business in the State for foreign corporations which are entirely non-resident.

"Section 3. On and after the going into effect of this act, any foreign corporation, as defined above, which shall refuse or fail to comply with this act, shall be subject to a fine of not less than one thousand dollars ($ 1000), to be recovered before any court of competent jurisdiction; and it is hereby made the duty of the prosecuting attorneys of the different judicial districts of this State to see to the proper enforcement of this act. All such fines so recovered shall be paid into the general revenue fund of the county in which the cause shall accrue. In addition to which penalty, or after the going into effect of this act, no foreign corporation, as above defined, which shall fail to comply with this act can maintain any suit or action, either legal or equitable, in any of the courts of this State upon any demand, whether arising out of contract or tort." Section 2, act February 16, 1899, as amended by act May 8, 1899, and section 3, act February 16, 1899.

Section four of the same act allowed corporations then doing business in the State ninety days from its passage within which to comply with its terms.

The case was tried before the court sitting as a jury, and the court adjudged the defendant corporation to be guilty of violating the statute hereinbefore quoted, fixed the penalty at a fine of $ 2500, and rendered judgment accordingly.

We have held in another case against this appellant, decided today, that the section two of the act of 1899, upon which this prosecution is based, has been repealed by a later statute (Act 1901, p. 386) on the same subject, but the complaint alleges and the evidence establishes a violation of the statute by appellant, if at all, before its repeal.

By statute of this State it is provided that "when any criminal or penal statute shall be repealed, all offenses committed or forfeitures accrued under it while it was in force, shall be punished or enforced as if it were in force, notwithstanding such repeal, unless otherwise expressly provided in the repealing statute." Act December 21, 1846, Kirby's Digest, § 7797. The force of this statute has been recognized and upheld by the court in several cases. McCuen v. State, 19 Ark. 634; Volmer v. State, 34 Ark. 487; Cloud v. State, 36 Ark. 151.

The defense relied upon by the appellant is predicated upon the propositions of law set forth in the following declarations which its counsel asked the trial court to make, and which were each refused:

"First. The defendant is engaged in interstate and foreign commerce, and the act relied upon by the plaintiff is, as to it, an interference with the power of Congress over interstate and foreign commerce.

"Second. The defendant having accepted the provision of the Act of Congress of 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," it has the right to do business in this State, and the act relied upon by the plaintiff can have no application to the defendant.

"Third. The defendant can not be excluded from doing business in the State

of Arkansas, because to do so would operate as a taking of the defendant's property without due process of law, and would be a denial to the defendant of the equal protection of the law guarantied by the Fourteenth Amendment to the Constitution of the United States."

It must be readily conceded, and is conceded in argument by counsel for the State, that it is beyond the power of the State under the guise either of a license tax or police regulation, to impose burdens upon interstate commerce or to deny a foreign corporation the right to engage in such commerce in...