In an county, and port of Mobile, on its poles, wires, fixtures and other property, at the same rate and to the same extent as other corporations and individuals; and besides the tax on tangible property, the company was also required to pay a tax on its gross receipts within the State. The case, however, turned upon the general and comprehensive terms of the ordinance, which was held void as a tax on interstate commerce. other case, the statute granted the right to telegraph corporations to enter and occupy city streets, and an ordinance imposing a tax for the same privilege was declared not a tax, as the scheme for taxation of such companies was otherwise fully provided by statute, and this scheme was directed to be so arranged that "each municipality shall receive its just share of such taxes proportionately to the amount of property therein situated." Said ordinance was held void as an infringement of the privileges granted by the statute.96 A railroad company is liable to but one license tax for two lines running into a city.97 But a telegraph company is not exempt from State and county taxation of its property as such, because of the payment of a privilege tax. 98 Again, a city cannot exact a license fee of a telephone company, nor can it require an additional license therefrom, where said company is required to pay the State an annual license fee on its gross receipts from business within the State, where said statute also provides that such license fee shall be in lieu of all other taxes for any pur poses authorized by the law of the State.99 But it is also held that a city charter power to raise money by taxes and assessments for current expenses authorizes granting or refusing licenses to telegraph companies, even though, under the State statute, but one license can be required of such companies, upon the issuing of which telegraphic messages may be trans 96 Hodges v. Western Un. Teleg. Co., 72 Miss. 910, 18 So. 84, 29 L. R. A. 770, 5 Am. Elec. Cas. 56, 59, Code Miss., 1892, §§ 3880, 3885. 97 Southern R. Co. v. Greenville, 45 S. C. 602, 23 S. E. 952, roads were purchased under S. C. Rev. Stat.. § 1623. 98 Western Un. Teleg. Co. V. State of Tennessee, etc., 9 Baxt. (Tenn.) 509, 40 Am. Rep. 99, 1 Am. Elec. Cas. 326. 99 Wisconsin Teleph. Co. v. City of Oshkosh, 62 Wis. 32, 1 Am. Elec. Cas. 687, 692; 21 N. W. 828; Wis. Laws 1883, c. 345: Detroit v. Detroit City Ry., 76 Mich. 421. mited through any county or corporation of the State.1 A municipal corporation may not, by ordinance adopted pursuant to its charter, impose on telegraph companies a license tax and a fine for violation of said ordinance, when such taxation covers the entire operations of the company, and amounts to a material obstruction or a regulation of interstate commerce.2 1 Western Un. Teleg. Co. v. City of Richmond, 26 Gratt. (Va.) 1, 1 Am. Elec. Cas. 149, Act Va., March 15, 1872. The object of that act was, no doubt, to relieve telegraph companies from the payment of a tax for each office and place of business and to authorize the transmission of messages throughout the State, under one license, and upon the payment of a single tax. It was not intended to interfere with municipal corporations in the exercise of powers of taxation conferred by their charters, or to strip them of valuable revenues derived from companies and individuals carrying on business within the corporate limits, and under protection of the corporate Government. This subject was carefully considered in the case of Humphreys, etc. v. Norfolk City, decided by this court at the spring term, 1874; and to that case reference is made, 25 Gratt. (Va.) 97." Western Un. Teleg. Co. v. City of Richmond, 26 Gratt. (Va.) 1, 1 Am. Elec. Cas. 151, per Staples, J. Compare as to the principles involved and discussed in the above case, Adkins & Co. v. City of Richmond, 98 Va. 91, 34 S. E. 967 and see Western Union Teleg. Co. v. Hughes, 104 Va. 240, Western Union Teleg. Co. v. Reynolds, 100 Va. 459, 93 Am. St. Rep. 971, 41 S. E. 856. In a Louisiana case the fact that the telephone company paid a tax upon its plant as property, and also paid a license tax levied on its business, was noted by the court, and although not discussed, was evidently a factor in determining the nature and character of the charge exacted in that case and also in reaching the decision. City of New Orleans v. Great Southern Teleph. & Teleg. Co., 40 La. Ann. 41, 8 Am. St. Rep. 502, 2 Am. Elec. Cas. 122, 124, 3 So. 533. In Pennsylvania a license fee was held valid and reasonable, although the facts were found that the poles, upon which the license charge was imposed, were part of the capital stock, that the company paid dividends and that taxes were paid on said stock and dividends to the State. These facts, however, were only stated, and the point was not discussed. Lancaster V. Edison Illum. Co. (C. P., Penn., 1888), 8 Penn. Co. Ct. Rep. 178, 2 Am. Elec. Cas. 116, 119, 120. Point raised, but not considered in City of Philadelphia v. American Un. Teleg. Co. (Penn. Sup. Ct., 1895), 6 Am. Elec. Cas. 85. Examine Mayor of New York v. Twenty-third St. Ry. Co., 113 N. Y. 311, 22 N. Y. St. R. 958, 21 N. E. 60, affg. 48 Hun (N. Y.), 552, 16 N. Y. St. R. 137. Payment of privilege tax at rate fixed does not prevent imposition of another like tax. No contract is thereby created. Western Un. Teleg. Co. v. Harris (Ch. App., Tenn.), 52 S. W. 748, affd. by the Sup. Ct. 2 Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, 21 Am. But, where a license fee of $5 is imposed by ordinance upon each telephone instrument used within a city, a penalty for violation of said ordinance may be enforced by fine and imprisonment under said ordinance.3 § 110a. Ad valorem system - Privilege tax-Double taxation. Where a State Constitution permits the legislature to impose a license tax on any business which cannot be reached by the ad valorem system a city ordinance which imposes a privilege tax upon a telegraph company is not in conflict therewith; such a tax upon the privilege of doing business in the city differs wholly from a property tax. It is immaterial that the State taxes the property of the company on the ad valorem system. The two subjects of taxation are wholly different and both may be taxed without being obnoxious to the objection that it is double taxation.4 § 111. License fee or tax, etc.- In lieu of all other taxes.— A State has power to lay a privilege tax upon telegraph companies operating within the State where such tax is in lieu of other State, county and municipal taxes. Although said tax is upon the privilege of exercising its franchises within the & Eng. Corp. Cas. 26, 12 Inter. Com. Rep. 134, 2 Am. Elec. Cas. 79, and numerous cases cited throughout this chapter. See citations of the above case in § 109 herein. 66 3 Ogden v. Crossman, 17 Utah, 66; 53 Pac. 985; Utah Const., art. 13, §§ 5, 12; Utah Comp. Laws, 1888, p. 331, § 289, p. 63, § 89. Cited and quoted from in Matthews v. Jensen, 21 Utah 216, although the court said Whether or not that case was correctly decided, and whether we would now upon further consideration, place the same interpretation upon those sections of the constitution are questions immaterial here under the view we have taken of this case." 4 Postal Teleg. Cable Co. v. City of Norfolk, 101 Va. 125, 43 S. E. 207; Art. X, § 4, Const. case is cited and quoted from in Norfolk v. Western R. Co. v. Suffolk, 103 Va. 498, 503, as to privilege tax imposed by ordinance not being in conflict with the State Constitution permitting the Legislature to impose a license tax on any business which cannot be reached by the ad valorem system, that a privilege tax differs from a property tax, etc., and is not double taxation. As to ad valorem taxes and the power of the State legislature under the constitution of that State, see Southern Bell Teleph. & Teleg. Co. V. Stewart, (Atlanta Nat. Bldg. & Loan Assn. v. Stewart) 109 Ga. 80, 35 S. E. See c. XXXII herein where this case is fully considered. State, it is valid if the ascertainment of the amount is made dependent in fact on the value of the company's property within the State, and if payment be not made the condition precedent to carrying on its business, but its enforcement is left to the ordinary means devised for the collection of taxes, and especially so where said charge amounts to less than an ad valorem tax on the company's visible property in said. State. In Tennessee by a tax in lieu of all other taxes except ad valorem taxes, only county and municipal taxes are excluded, and not State privilege taxes upon telegraph companies. And under the Georgia Constitution the general assembly has no power to declare that an occupation or business tax shall be levied upon certain classes of corporations, which when collected shall be received in lieu of all other taxes upon the property of such corporation." § 112. License, privilege, etc., tax continued - Exemptions in statutes and ordinances.- Interstate commerce.- A statute or ordinance imposing a privilege or license or like tax or rental will not be invalid so far as the Post Roads Act, interstate commerce or United States governmental business is concerned, where said commerce or governmental business is, by the express terms of said statute or ordinance, expressly exempt from the operation thereof.8 5 Postal Teleg. Cable Co. V. Adams, 155 U. S. 688, 39 L. Ed. 311, 5 Am. Elec. Cas. 636, 15 Sup. Ct. 268, 360 (Code Miss., 1880, c. 10, § 585; Sess. Laws Miss. 1888, 8, Act March 8, c. 3), affg. 71 Miss. 555, 42 Am. St. Rep. 478, 4 Am. Elec. Cas. 606; State of Maine v. Western Un. Teleg. Co., 73 Me. 518, 1 Am. Elec. Cas. 415. In this case the statute provided that every telegraph company or person doing business within the State limits should pay a tax of 22 per centum on the value of any telegraph line owned by said corporation, company or person within the State, including all poles, wires, insulators, office furniture, batteries and instru ments, and any circumstances or conditions affecting the value of the property, and that said tax should be in lieu of all State or municipal taxation on any of the property or shares of said corporations, companies or persons." 6 Western Un. Teleg. Co. v. Harris (Ch. App., Tenn. 1899), 52 S. W. 748, affd. by the Sup. Ct. 7 Southern Bell Teleph. & Teleg. Co. v. Stewart (Atlanta Bldg. & Loan Assn. v. Stewart and two other cases against same), 109 Ga. 90, 35 S. E. 73. This case is fully considered in c. XXXII herein. 8 Postal Teleg. Cable Co. V. Charleston, 153 U. S. 692, 5 Am. Elec. Cas. 663, 38 L. Ed. 871, 4 § 112a. Exemption of foreign and interstate business.- A city ordinance is not in contravention of the commerce clause of the Federal Constitution, although it imposes a privilege tax on the business of a telegraph company where the business taxed is done wholly between that city and other points within the State, and the enactment expressly exempts or excepts all foreign and interstate business, and telegrams sent to or received by the United States or the State within which the city is located." § 113. Taxation License, etc., tax-Fourteenth Amendment.— It is held, in a New York case, that a license fee imposed upon telegraph companies, based upon the number of poles and wires in a city's streets, does not conflict with that provision of the Fourteenth Amendment of the Constitution of the United States, that no State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of Inter. Com. Rep. 637, 14 Sup. Ct. 1094, affg. 56 Fed. 419, 4 Am. Elec. Cas. 620. The ordinance imposing a license charge in this case expressly included business done exclusively within the city and exempted "business done to or from points without the State," and "any business done for the Government of the United States, its officers or agents," and the ordinance was held valid. In Osborne V. Florida, 164 U. S. 650, 17 Sup. Ct. 214, 41 L. Ed. 586, the statute excluded interstate or foreign commerce, and the license tax on local business was held valid. In Western Un. Teleg. Co. v. City of Fremont, 39 Neb. 692, 26 L. R. A. 698, 4 Am. Elec. Cas. 626, 58 N. W. 415 (see note to this case, § 107 herein), the ordinance was held valid, but it expressly excepted "the receipt, transmission and delivery of any such messages to and from any de partment, agency or agent of the United States, and excepting the receipt, transmission and delivery of any such messages which are interstate commerce," and it was also provided that "the license tax, by this ordinance levied, is not levied upon any business or occupation which is interstate, or which is done or conducted by any department of the Government of the United States or of this State, or any officer of the United States or of this State in the course of his official duties, or by any county or other subdivision of this State or its officers as such." Postal Teleg. Cable Co. v. Charleston, first cited in this note, is followed in York v. Chicago, B. & Q. R. Co., 56 Neb. 572, 76 N. W. 1065. Postal Teleg. Cable Co. v. City of Norfolk, 101 Va. 125. 43 S. E. 207. |