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Orleans & Texas Railroad to Vicksburg, and thence to Boston and other points, and which was made during the same season as that of which the complaint is made, and was identical with it in all respects, except that petitioner's cotton was not compressed at Vicksburg, and consequently the rates given him from Vicksburg were less than those charged to Wells & Co.; that on all cottons shipped by Wells & Co. direct from Vicksburg eastward the same rates were charged as those paid by all ship'pers.

The facts so stated in the answer are substantially established by the proof, and the question to be determined is do they constitute a violation of sections 2 and 3 of the interstate commerce act of congress? Section 2 reads as follows:

"That if any common carrier subject to the provisions of this act shall directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like contemporaneous service in the transportation of a like kind of traffic, under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited, and declared to be unlawful."

Section 3 is as follows:

"That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever."

Unfortunately I am left without any decisions of the courts or of the commission on this direct point, and am left to my own unaided judgment on the question presented. There is much testimony, and has been much comment by counsel, on the question as to whether the rates under the arrangement by which the cotton was shipped from Delhi to Vicksburg and there compressed, the expense of this compressing being paid by the defendant as part of the shipment to enable him to ship a large number of bales on a car, were posted or otherwise available to the inspection of shippers and the public. This is not an issue raised in this case, and can only be inquired into incidentally as affecting the rights of petitioner. The substantial subject of complaint is that the defendant made an unjust discrimination in the rates charged for the shipment of cotton from Vicksburg to eastern points in favor of W. L. Wells & Co., and against petitioner, by which he sustained damage. The uncontradicted fact is that the cotton shipped, of which complaint is made, was shipped from Delhi, in Louisiana, to points east, and was stopped off and compressed at Vicksburg, at the uniform and established rates from Delhi to the eastern points. The proof shows that this practice is general, and, it may be said, necessary; that it is the practice in shipping from many

other points, and was well known to the petitioner, who had availed himself of it; and it was known, and its advantages received, by all the cotton buyers at Vicksburg on cotton purchased at different points on the railroads connecting at Vicksburg, so that the petitioner cannot complain of this arrangement. The petitioner does not aver that he desired or intended to ship cotton from Delhi, and was prevented from doing so by want of a knowledge that shipments were being made by Wells & Co. under the arrangement stated. Had such been the case the question as to whether or not this arrangement was included in the rates posted, or otherwise made public, in the offices at Delhi or in Vicksburg, would be important; but as no such averment is made, it is unimportant. I am unable to perceive any difference between the shipments made by petitioner from Greenville and those made by W. L. Wells & Co. from Delhi. The Greenville cotton was compressed at Greenville, and the Delhi cotton at Vicksburg, but the costs of both were embraced in adding the local freight from that point, making one freight from the first point of shipment to the point of destination, and I cannot perceive that in either case any advantage is obtained over the other, or that there was any violation of law in either case. It is pressed in argument upon the admitted facts that what is understood by the eastern purchasers to be Vicksburg cotton-that is, such cotton as is raised in that vicinity-is superior to other cotton, and that, in some instances at least, an arrangement is made to induce these eastern purchasers to believe that cotton raised in other localities was raised in the vicinity of Vicksburg, and that this constitutes such an arrangement a violation of these sections of the act upon the part of the defendant. This may be a sort of pious fraud upon the part of these local cotton buyers upon their eastern employers, whose agents they are, but certainly cannot be imputed to the defendant or any other common carrier. To render the discrimination unlawful, the preference given to one over another must be contemporaneous, and under substantially similar circumstances and conditions. Had petitioner purchased cotton at Delhi, for shipment to the eastern points, it would have been the duty of agents at that place to have informed him that he could stop it at Vicksburg, and have it compressed and shipped through at the published rates. A neglect to do so would have been an unjust discrimination, and have entitled petitioner to his action and to a judgment for the damages sustained; but this is not such a case. I am satisfied from the pleadings and proof that the petitioner has not made out a case entitling him to damages; therefore this petition must be dismissed; but, as the question is a new one, each party will pay his

own costs.

TAX.

CITY OF ST. LOUIS v. WESTERN UNION TEL. Co.

(Circuit Court, E. D. Missouri, E. D. June 19, 1889.)

1. CONSTITUTIONAL LAW-INTERSTATE COMMERCE - TELEGRAPH COMPANIES Telegraphs being instruments of interstate commerce, and defendant's lines in the city of St. Louis being used for transmission of messages to all parts of the United States, neither the state nor the city can impose a privilege or license tax upon defendant.

2. SAME "REGULATION" OF TELEGRAPH COMPANIES.

A tax of five dollars per year upon every telegraph pole used by defendant in the city cannot be upheld under the city's charter power "to regulate" telegraph companies.

At Law. Suit to recover tax on telegraph poles.
Leverett Bell, City Counsellor, for plaintiff.

Cochran, Dickson & Smith, for defendant.

THAYER, J. On March 23, 1884, the municipal assembly of the city of St. Louis amended ordinance No. 11,604, entitled "An ordinance to regulate the erection of telegraph and telephone poles," by adding thereto four new sections, numbered 11, 12, 13, and 14. Section No. 11 is as follows:

"From and after the first day of July, 1884, all telegraph and telephone companies which are not by ordinance taxed on their gross income for city purposes, shall pay to the city of St. Louis, for the privilege of using the streets, alleys, and public places thereof, the sum of five dollars per annum for each and every telegraph or telephone pole erected or used by them in the streets, alleys, and public places in said city.”

*

Suit in the nature of an action of debt is brought under this section to recover the sum of $22,635, which is alleged to have become due in consequence of the use by the defendant of 1,509 telegraph poles since July 1, 1884; said poles having been erected prior to that date. A question is raised as to the right of the plaintiff to sue in such form, inasmuch as the ordinance contains no provisions touching the manner of bringing suits to enforce the payment of the tax; but, waiving that question, I am of the opinion that judgment must be entered for defendant on other and more meritorious grounds also urged by defendant's counsel. The city of St. Louis was originally authorized by its charter "to license, tax, and regulate * * telegraph companies," etc.; but its power to tax the property, real and personal, of telegraph companies, including their franchises, was taken away by implication by an act approved on the 21st of April, 1877, now section 6901 of the Revised Statutes of Missouri. Section 11 of the ordinance cannot be supported, therefore, as an exercise of a taxing power vested in the municipality, unless it be contended that the municipality still has power to impose a "privilege tax" on telegraph companies, and that the charge in question of five dollars per pole is in the nature of a privilege tax levied against the defendant; that is to say, a tax imposed on it as a condition precedent to its right to carry on the telegraph business in the city of St. Louis.

Inasmuch as telegraphs are instruments of interstate commerce, and as defendant's lines extend into all parts of the United States, and its wires in the city of St. Louis, Mo., are used daily to transmit messages to all parts of the United States, it is clear that neither the state nor the municipality can impose upon it a privilege or license tax. Almy v. California, 24 How. 169; Crandall v. Nevada, 6 Wall. 35; State Freight Tax, 15 Wall. 232; Car Co. v. Nolan, 22 Fed. Rep. 276; Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. Rep. 1380. The state may tax such property, real or personal, of the defendant as is located within its borders, at such just rate, and in such manner, as the legislature may prescribe, consistently with the laws of the state. Telegraph Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. Rep. 961. The state of Missouri has exercised that power, and has provided how the property of telegraph lines shall be taxed through the medium of a board of equalization, thereby withdrawing the taxing power from the municipality. In no aspect of the case, therefore, can the section of the ordinance in question be sustained as a valid exercise of any taxing power vested in the city. It is obvious, I think, that the ordinance cannot be upheld under the power conferred on the municipality "to regulate" telegraph companies. By virtue of such power, the city authorities may undoubtedly make reasonable regulations touching the location of telegraph poles, their height and size, and very likely, as was recently held by Judge WALLACE in the Southern district of New York, (Telegraph Co. v. Mayor, 38 Fed. Rep. 552,) may require them to be carried underground rather than overhead. The section of the ordinance on which the suit is based is not, however, a regulation of that character, nor is it in any proper sense a regulation, within the meaning of the city charter. The object of the enactment was evidently to secure revenue for the municipality; hence the burden imposed is a tax, and it is imposed in such form that it can only be regarded as a privilege or license tax which the city has no authority to impose. Judgment will be entered for defendant.

UNITED STATES EXPRESS Co. v. HEMMINGWAY, Treasurer, et al.

PACIFIC EXPRESS Co. v. SAME.

(Circuit Court, S. D. Mississippi. May 25, 1889.)

1. CONSTITUTIONAL LAW-EXPRESS COMPANIES-TAX.

Act Leg. Miss., imposing a tax on express companies doing business in the state, is void as to all interstate transportation, being in violation of Const. U. S. art. 1, § 8, par. 3, exclusively confiding regulation of interstate commerce to congress, but valid as to all business to be exclusively performed within the state.

2. SAME INJUNCTION.

A levy of such a tax on a company doing both a local and interstate business, will be enjoined until a separation between the two kinds of business can be made.

In Equity. Application for injunction.

R. V. Booth and M. Marshall, for complainant.

T. M. Miller, Atty. Gen., for defendants.

HILL, J. This is an application on behalf of the United States Express Company for an injunction to restrain the defendants, who claim the right to do so by virtue of their offices as treasurer and auditor of the state of Mississippi, from collecting the privilege tax of $3,000, levied upon it by authority of an act of the legislature of the state of Mississippi for doing business in this state as an express company, which, it is alleged in the bill, is unconstitutional and void, being repugnant to paragraph 3, § 8, art. 1, of the constitution of the United States. The bill, in substance, alleges that it is an unincorporated, joint-stock association, organized and doing business under the laws of the state of New York, in which state it is located, and has its principal place of business; that it has been for some time past, and still is, engaged in carrying on a general express business, consisting in receiving and transporting from one state to another, by rapid transit, by railroad, and other conveyances for hire, gold, silver, and other valuable articles of many kinds, requiring great care and safe and speedy delivery, and which constitutes an important artery of commerce between the states, the regulation of which is by paragraph 3, § 8, art. 1, exclusively confided to the congress of the United States; that the defendants, as treasurer and auditor of public accounts of the state of Mississippi, under the authority of an act of the legislature of the state, imposing an annual tax of $3,000 upon express companies doing business in this state, for the privilege of doing such business, and imposing severe and heavy penalties against any express company for doing business in the state without first paying said tax, are about to enforce the payment thereof from complainant, and will do so unless enjoined and restrained therefrom by the order and decree of this court.

The question now to be decided is as to whether or not this tax is a tax upon commerce between the states, and repugnant to the constitution of the United States, as set forth in the bill. It has been so repeatedly held by the supreme court of the United States that any tax imposed by a state upon commerce passing from one state into another is in violation of the constitution of the United States, and void, that reference to these decisions is unnecessary; the last decision on this question being Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. Rep. 1380, and in which reference is made to a large number of decisions, commencing with the Freight Tax Case, in 15 Wall. 232. That was a tax on a telegraph company, but there is no substantial difference between a telegraph company and an express company in this particular. It is held in these cases that a tax for the privilege of doing business in a state is a tax on the business in the state, and if the business is one of the agencies in carrying on the commerce between the states, it is an interference with the commerce between the states, the regulation of which is exclusively confided to the congress of the United States, and that such

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