Williams v. City of Talladega

• Decision Date: 21 December 1909
• Citation: 51 So. 330,164 Ala. 633
• Parties: WILLIAMS v. CITY OF TALLADEGA.
• Court: Alabama Supreme Court

51 So. 330

164 Ala. 633

WILLIAMS v. CITY OF TALLADEGA.

Supreme Court of Alabama

December 21, 1909

Appeal from City Court of Talladega; G. K. Miller, Judge.

D. G Williams was convicted of violating an ordinance of the City of Talladega, and he appeals. Affirmed.

George H. Fearsons, Brown & Webb, Ray Rushton, and William M Williams, for appellant.

W. B Castleberry and William B. Harrison, for appellee.

SAYRE J.

Plaintiff in appeal was convicted of the violation of an ordinance of the city of Talladega, because, as agent of the Western Union Telegraph Company, he engaged in the business of sending messages between that city and other points in this state without first obtaining a license. The question of first importance raised by the appeal relates to the operation and effect in such case of the act of Congress of July 24, 1866 (Act July 24, 1866, c. 230, 14 Stat. 221; sections 5263-5268, Rev. St. U.S. [U. S. Comp. St. 1901, p. 3579]), known commonly as the "Post Roads Act." Appellant's contention is that this act and the acceptance by the telegraph company of its provisions constitute the company a licensee of the United States in respect to its intrastate as well as its interstate business of transmitting messages, and render it immune to the imposition of a license tax by the state. The contention confesses that the decisions of the Supreme Court of the United States have finally determined that telegraphic messages carried and delivered exclusively within the state are elements of internal commerce, do not fall under the influence of the interstate commerce clause of the federal Constitution, although the same corporation is using the same agents and instrumentalities in interstate commerce, and are therefore subject to the taxing power of the state. But it is urged that, entirely apart from any question as to how the ordinance in question may be affected by the power of Congress to regulate commerce among the several states, it must be condemned for the reason that it runs contrariwise to the post roads act of Congress passed in pursuance of its power under the Constitution to establish post roads. That act provided "that any telegraph company accepting the said act shall have the right to construct, maintain and operate its lines of telegraph through and on any part of the public domain of the United States in and along any of the military and post roads of the United States which have been or may hereafter be constructed by act of Congress." 7 Fed. Ann. St. 205-213. In 1872 Congress passed an act which established as post roads "all railroads or parts of railroads, which are now or may hereafter be in operation." And in 1884 an act "that all public roads and highways while kept up and maintained as such are hereby declared to be post roads." 5 Fed. Ann. St. pp. 900, 901 (U. S. Comp. St. 1901, pp. 2707, 2708). In consideration of these advantages Congress reserved the right of precedence in the use for public business of the lines of companies accepting the benefits of the act at rates to be fixed by the Postmaster General. "Thus, as to government business, companies of this class become government agencies." Telegraph Co. v. Texas, 105 U.S. 460, 26 L.Ed. 1067. It is made to appear in the agreed statement of facts that the Western Union Company has accepted the benefits of the act, and that the roads along which its lines are constructed within the state of Alabama and the city of Talladega are post roads. The argument proceeds: There is no reason to suppose that the government of the United States did not intend to secure for its postal, military, and other business between points within a state facilities equal to those secured for its business between points in different states. One may be as important as the other. The conclusion is that Congress intended to grant the right to carry on the business of telegraphing between points within the state, and granted the right in a way that put it beyond the interference of the state.

It is to be observed that the argument lays out of the case all consideration of the relation of the business of sending telegraphic messages in interstate commerce; and this it may properly do, for, while on one hand the power of the state to tax messages exclusively between points within the state as a part of internal commerce is established by the repeated decisions of the Supreme Court of the United States, it must, on the other, be conceded that the power conferred upon Congress by the interstate commerce clause of the Constitution is entirely distinct from the power conferred in respect to the establishment of post roads. The question then is whether the act to which reference is made was intended to confer a franchise upon the Western Union and other companies accepting its provisions to carry on an intrastate business in such way as to put it beyond the power of the state to impose a privilege or license tax upon it. This involves a question of federal Constitution and law, and, if it has been determined by the Supreme Court of the United States, that determination must be final so far as we are concerned. We have already quoted the Supreme Court of the United States to the effect that as to government business the telegraph company is a government agency. As a summing up of a number of its own decisions, it was said by that court in Western Union Telegraph Co. v. Alabama, 132 U.S. 472, 10 S.Ct. 161, 33 L.Ed. 409, that the principle in regard to telegraph companies which have accepted the provisions of the act of Congress of July 24, 1866, is "that they shall not be taxed by the authorities of a state for any messages, or receipts arising from messages, from points within the state to points without or from points without the state to points within, but that such taxes may be levied upon all messages carried and delivered exclusively within the state." There was consideration of the interstate commerce clause, because that too was involved; but the conclusion of the case, and that of the cases cited, could not have been reached except on the theory that the argument here made is not grounded in a correct appreciation of the force and effect of the act of Congress in relation to telegraph companies.

In Western Union Telegraph Co. v. Massachusetts, 125 U.S. 530, 8 S.Ct. 961, 31 L.Ed. 790, a tax was assessed against the company upon the value of its shares which were apportioned to that state on a mileage basis. This was said by the court to be essentially an excise upon the capital of the corporation, and that, while it was nominally upon the shares of the capital stock of the company, it was in effect a tax on account of property owned and used by it in the state of Massachusetts. The argument was pressed upon the court that the tax was void because it violated the rights conferred upon the company by the act of July 24, 1866. The court said: "This, however, is merely a permissive statute, and there is no expression in it which implies that this permission to extend its lines along roads not built or owned by the United States, or over and under navigable streams, or over bridges not built or owned by the federal government, carries with it any exemption from the ordinary burdens of taxation. While the state could not interfere by any specific statute to prevent a corporation from placing its lines along these post roads, or stop the use of them after they were placed there, nevertheless the company receiving the benefit of the laws of the state for the protection of its property and its rights is liable to be taxed upon its real or personal property as any other person would be. It never could have been intended by the Congress of the United States in conferring upon a corporation of one state the authority to enter the territory of any other state and erect its poles and lines therein to establish the proposition that such a company owed no obedience to the laws of the state into which it thus entered, and was under no obligation to pay its fair proportion of the taxes necessary to its support." And Telegraph Company v. Texas, supra, Railroad Co. v. Peniston, 18 Wall. 5, 21 L.Ed. 787, Thomson v. Pacific Railroad Co., 9 Wall. 579, 19 L.Ed. 792, and National Bank v. Commonwealth, 9 Wall. 353, 19 L.Ed. 701, were cited and discussed.

In Massachusetts v. Western Union Telegraph Company, 141 U.S. 40, 11 S.Ct. 889, 35 L.Ed. 628, the court again considered the question, considered the effect of the act of Congress on the power of the state to tax, and reached the same conclusion. So, also, in St. Louis v. Western Union Telegraph Company, 148 U.S. 92, 13 S.Ct. 485, 37 L.Ed 380, where the effort was to charge the company for its use of the streets. In Telegraph Company v. Texas, supra, this language was used: "The Western Union Telegraph Company having accepted the restrictions and obligations of this provision by Congress (the act of July 24, 1866) occupies in Texas the position of an instrument of foreign and interstate commerce, and of a government agent for the transmission of messages on public business. Its property in the state is subject to taxation the same as other property, and it may undoubtedly be taxed in a proper way on account of its occupation and its business." It was also said: "Any tax, therefore, which the state may put on messages sent by private parties, and not by agents of the government of the United States, from one place to another exclusively within its own jurisdiction, will not be repugnant to the Constitution of the United States." And the cause was reversed with directions which authorized the collection of the tax on the appellant's intrastate messages sent by private parties. The argument now advanced was not specifically answered, but the court ha...