United States Supreme Court Reports

[555]

[556]

procure it, seems to be a crime of a very high
nature, and justly to deserve the resentment of
the law." 1 Hawk. P. C. chap. 27, § 3. So
in Reg. v. Parnell, 14 Cox, Cr. Ĉas. 508, 514, it
was observed that an "agreement to effect an
injury or wrong to another by two or more
persons is constituted an offense, because the
wrong to be effected by a combination assumes
a formidable character. When done by one
alone it is but a civil injury, but it assumes a
formidable or aggravated character when it is
to be effected by the powers of the combina-
tion." Tomlin says that "the word conspiracy
was formerly used almost exclusively for an
agreement of two or more persons falsely to in-
dict one, or to procure him to be indicted, of
felony," but that "now it is no less common-
ly used for the unlawful combinations of
journeymen to raise their wages, or to refuse
working, except on certain stipulated condi-
tions." Toml. Law Dict. title Conspiracy.
See also Commonwealth v. Carlisle, Brightly,
40; 3 Whart. Cr. L. § 2322; 2 Archb. Cr. Pr.
& Pl. Pom. ed. note, p. 1830.

with having published a libel, and having been | is formed may perhaps be inconsiderable, yet
arrested in New York, the warrant to author- the association to pervert the law, in order to
ize his being brought here was refused and he
was discharged, upon the ground that, if
brought to this District, he would be tried in a
manner forbidden by the Constitution. Mr.
Justice Blatchford said in Re Dana, 7 Ben. 1:
"Even if it were to be conceded, that notwith-
standing the provision in the Constitution that
'the trial of all crimes, except in cases of im-
peachment,' shall be by jury, Congress has tho
right to provide for the trial, in the District of
Columbia, by a court without a jury, of such
offenses as were, by the laws and usages in
force at the time of the adoption of the Consti-
tution, triable without a jury, it is a matter of
history, that the offense of libel was always
triable, and tried, by a jury. It is, therefore,
one of the crimes which must, under the Con-
stitution, be tried by a jury. The Act of 1870
provides that the information in this case shall
not be tried by a jury, but shall be tried by a
court. It is true that it gives to the defendant,
after judgment, if he deems himself aggrieved
thereby, the right to appeal to another court,
where the information must be tried by a jury.
But this does not remove the objection. If
Congress has the power to deprive the defend-
ant of his right to a trial by jury, for one trial,
and to put him if convicted, to an appeal to
another court, to secure a trial by jury, it is
difficult to see why it may not also have the
power to provide for several trials, by a court,
without a jury, on several successive convic-
tions, before allowing a trial by a jury. In my
judgment, the accused is entitled, not to be first
convicted by a court and then to be acquitted
by a jury, but to be convicted or acquitted in
the first instance by a jury."

These authorities are sufficient to show the
nature of the crime of conspiracy at common
law. It is an offense of a grave character, af-
fecting the public at large, and we are unable
to hold that a person charged with having com-
mitted it in this District is not entitled to a
jury, when put upon his trial. The jurisdic-
tion of the police court, as defined by existing
statutes, does not extend to the trial of infamous
crimes or offenses punishable by imprisonment
in the penitentiary. But the argument made
in behalf of the government implies that if
Congress should provide the police court with
Without further reference to the authorities, a grand jury, and authorize that court to try,
and conceding that there is a class of petty or without a petit jury, all persons indicted—even
minor offenses, not usually embraced in pub- for crimes punishable by confinement in the
lic criminal statutes, and not of the class or penitentiary-such legislation would not be an
grade triable at common law by a jury, and invasion of the constitutional right of trial by
which, if committed in this District, may, un- jury, provided the accused, after being tried
der the authority of Congress, be tried by the and sentenced in the police court, is given an
court and without a jury, we are of opinion unobstructed right of appeal to, and trial by
that the offense with which the appellant is jury in, another court to which the case may be
charged does not belong to that class. A con- taken. We cannot assent to that interpretation
spiracy such as is charged against him and his of the Constitution. Except in that class or [557]
codefendants is by no means a petty or trivial of- grade of offenses called petty offenses, which,
fense. The general rule of the common law," according to the common law, may be proceed-
the Supreme Judicial Court of Massachusetts ed against summarily in any tribunal legally
said in Commonwealth v. Hunt, 4 Met. 111, 121, constituted for that purpose, the guarantee of
"is that it is a criminal and indictable offense for an impartial jury to the accused in a criminal
two or more to confederate and combine togeth-prosecution, conducted either in the name, or
er, by concerted means, to do that which is un-
lawful or criminal, to the injury of the public,
or portions or classes of the community, or even
the rights of an individual." In State v. Burn-
ham, 15 N. H. 401, it was held that "combina-
tions against law or against individuals are
always dangerous to the public peace and to
public security. To guard against the union
of individuals to effect an unlawful design is
not easy, and to detect and punish them is often
extremely difficult." Hawkins, in discussing
the nature of conspiracies as offenses against
public justice, and referring especially to the
Statute of 21 Edw. I, relating to confederacies
to procure the indictment of an innocent person,
says that "notwithstanding the injury intended
to the party against whom such a confederacy

by or under the authority, of the United States,
secures to him the right to enjoy that mode of
trial from the first moment, and in whatever
court, he is put on trial for the offense charged.
In such cases a judgment of conviction, not
based upon a verdict of guilty by a jury, is
void. To accord to the accused a right to be
tried by a jury in an appellate court, after he
has been once fully tried, otherwise than by a
jury, in the court of original jurisdiction, and
sentenced to pay a fine or be imprisoned for not
paying it, does not satisfy the requirements of
the Constitution. When, therefore, the appel-
lant was brought before the Supreme Court of
the District, and the fact was disclosed that he
had been adjudged guilty of the crime of con-
spiracy charged in the information in this case,

[411]

without ever having been tried by a jury, he District of Ohio, on certificate of division in should have been restored to his liberty.

For the reasons stated, the judgment is versed, and the cause remanded with directions to discharge the appellant from custody.

FRANK RATTERMAN, Treasurer of HAMILTON COUNTY, OHIO, Appt.,

WESTERN UNION TELEGRAPH COMPANY.

WESTERN UNION TELEGRAPH COMPANY, Appt.,

FRANK RATTERMAN, Treasurer of HAMILTON COUNTY, OHIO.

(See S. C. Reporter's ed. 411-428.)

opinion in reference to the validity of a tax, as re-sessed under the statutes of Ohio, upon the receipts of a telegraph company, derived partly from interstate commerce and partly from commerce within the State, but which were assessed in gross and without separation or apportionment. Affirmed.

Tax on telegraph company-interstate commerce -apportionment of tax-injunction.

1. Where the subjects of taxation can be separated, so that that which arises from interstate commerce can be distinguished from that which arises from commerce wholly within the State, the court will act upon this distinction, and will restrain the tax on interstate commerce, while permitting the State to collect that upon commerce wholly within its own territory.

2. The telegraph is an instrument of commerce.

3. A single tax, assessed under the statutes of Ohio, upon the receipts of a telegraph company which were derived partly from interstate commerce, and partly from commerce within the State, but which were returned and assessed in gross and without separation or apportionment, is not wholly invalid, but is invalid only in proportion to the extent that such receipts were derived from inter

state commerce.

The collection of the taxes on that portion of the receipts derived from interstate commerce should be enjoined, and the treasurer should be permitted to collect the other tax upon property of the company and upon the receipts derived from commerce entirely within the limits of the State. [Nos. 1360, 1361.]

Argued March 21, 1888. Decided May 14, 1888.

NOTE.-Interstate Commerce.

The question as to the extent of the exclusive power conferred upon Congress by article 1, section 8, of the Federal Constitution "to regulate commerce among the several States," and the consequent inhibition of any interference with that subject by the States, while always one of the most important sources of conflict between the Federal and State jurisdictions, has attained additional prominence through the action of Congress in asserting authority to directly control common carriers engaged in interstate commerce, through the enactment of the Act of February 4, 1887, "to Regulate Commerce." Among recent cases on this subject the most important, outside of the United States Supreme Court, are probably those of Stockton v. Baltimore & N.Y. R. Co., before Mr. Justice Bradley, sitting as judge of the Circuit Court for the District of New Jersey, and Decker v. Baltimore & N. Y. R. Co., before Circuit Judge Wallace, in the Southern District of New York, reported in 1 Interstate Commerce Rep.411, 434. The authorities upon the power of Congress to regulate interstate commerce are collected and reviewed in these cases, and the rules applicable to the question, as enunciated by the decisions of the United States Supreme Court, are restated. These cases hold: (1) that the Act of Congress, approved June 16, 1886, entitled "An Act to Au

The facts are fully stated in the opinion. Messrs. Wm. M. Ramsey, Willard Brown, Charles W. Wells and Lawrence Maxwell, Jr., for the Telegraph Company:

Under section 693, U. S. Rev. Stat. an appeal may be taken without respect to the amount involved.

Dow v. Johnson, 100 U. S. 158 (25: 632); Waterville v. Van Slyke, 116 U. S. 699 (29: 772).

Section 699, sub. 4, Rev. Stat. gives this court jurisdiction without regard to the sum or value in dispute.

Bowman v. Chicago & N. W. R. Co. 115 U. S. 611, 615 (29: 502, 504).

The tax is invalid as a regulation of inter

state commerce.

Philadelphia & S. Steamship Co. v. Pennsyl vania, 122 U. S. 326 (30: 1200); Fargo v. Michigan, 121 U. S. 230 (30:888); W. U. Tel. Co. v. Texas, 105 U. S. 460 (26: 1067).

It is not a tax on property; as such it would be invalid under the Constitution of Ohio.

State v. Hipp, 38 Ohio St. 225; State v. Frame, 39 Ohio St. 399, 414; W. U. Tel. Co. v. Mayer, 28 Ohio St. 521; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 (29: 158); Paul v. Virginia, 75 U. S. 8 Wall. 168 (19:357); Pensacola Tel. Co. v. W. U. Tel. Co. 96 U. S. 1, 12 (24: 708, 711).

The entire law falls.

W. U. Tel. Co. v. Texas, supra; State v. Perry County, 5 Ohio St. 497, 506; Warren v. Charlestown, 2 Gray, 84; Allen v. Louisiana, 103 U. S. 80, 84 (26: 318, 319); W. U. Tel. Co. v. Mayer, 28 Ohio St. 521.

The Western Union Telegraph Company is one of the postal agencies of the Federal Government. It is entitled, as such postal agent, to carry on its operations within the State of Ohio, and the State cannot prohibit it from so doing nor tax it for the privilege.

McCulloch v. Maryland, 17 U. S. 4 Wheat.

thorize the Construction of a Bridge across the Staten Island Sound, Known as Arthur Kill," etc., is valid and constitutional under the power of Congress to regulate commerce among the States; (2) that in the pursuit of business authorized by the Government of the United States and under its protection, corporations of other States cannot be prohibited or obstructed by any State; (3) that in carrying on foreign and interstate commerce, corporations, equally with individuals, are within the protection of the commercial power of Congress, and cannot be molested in another State by state burdens or impediments; (4) that the power of Congress is supreme over the whole subject of interstate commerce, unimpeded and unembarrassed by state lines or state laws; (5) that the power to regulate commerce between the States extends not only to the control of the navigable waters of the country and the lands under them, for the purpose of navigation, but for the purpose of erecting piers, bridges and all other instrumentalities of commerce which in the judgment of Congress may be necessary or expedient; and (6) that Congress can lawfully confer upon a private corporation the capacity to occupy navigable waters within a State and appropriate the soil under them for the purposes of interstate commerce, without the consent of the State.

The question of indirect interference with inter

436 (4:608); Osborn v. Bank of U. S. 22 U. S. | (30: 1200); Moran v. New Orleans, 112 U. S. 69 9 Wheat. 738, 867 (6: 204, 234).

A tax on internal receipts is invalid. Union Pac. R. R. Co v. Peniston, 85 U. S. 18 Wall. 5 (21: 787).

Complainant is a general postal agent of the government.

Pensacola Tel. Co. v. W. U. Tel. Co. 96 U. S. 1, 9 (24: 708, 710).

Messrs. David K. Watson, Atty-Gen. of Ohio, Wm. A. Davidson, County Solicitor, Hamilton County, and Thomas McDougall, for Frank Ratterman, Treasurer:

The constitutionality of a state tax is to be determined by the subject upon which the burden is laid.

(28: 653); Welton v. Missouri, 91 U. S. 275 (23: 347); Cook v. Pennsylvania, 97 U. S. 566 (24: 1015); State Tonnage Tux Cases, 79 U. S. 12 Wall. 204 (20: 370); Webber v. Virginia, 103 U. S. 344 (26:565); Peete v. Morgan, 86 U. S. 19 Wall. 581 (22: 201); Cannon v. New Orleans, 87 U. S. 20 Wall. 577 (22: 417); Inman Steamship Co. v. Tinker, 94 U. S. 238 (24: 118); People v. N. Y. Tax Comrs. 67 U. S. 2 Black, 620 (17: 451); Bank Tax Case, 69 U. S. 2 Wall. 200 (17: 793); Society for Savings v. Coite, 73 U. S. 6 Wall. 594 (18: 897); Provident Sav. Inst. v. Massachusetts, Id. 611 (18: 907).

The Legislature of Ohio intended to tax the business done wholly within the State. Its auState Freight Tax Case, 82 U. S. 15 Wall.thority to tax the receipts from that business 272 (21:160); Adler v. Whitbeck, 7 West. Rep. cannot be questioned. 201, 44 Ohio. St. 539; Philadelphia & S. Steamship Co. v. Pennsylvania, 122 U. S. 336 (30: 1201).

The State may tax business.

People v. Thurber, 13 Ill. 554; State v. Hipp, 38 Ohio St. 199; W. U. Tel. Co. v. Mayer, 28 Ohio St. 521; Delaware R. R. Tax, 85 Ü. S. 18 Wall. 231 (21:896).

The States have authority to tax the estate, real and personal, of all their corporations, including carrying companies.

W. U. Tel. Co. v. Mayer, supra; State Tax on Railway Gross Receipts, 82 U. S. 15 Wall. 284 (21: 164); Delaware R. R. Tax, 85 U. S. 18 Wall. 206 (21: 888); Erie R. Co. v. Pennsylvania, 88 U. S. 21 Wall. 492 (22: 595); Knee land v. Milwaukee, 15 Wis. 691; Fargo v. Michigan, 121 U. S. 230 (30: 888); Philadelphia & S. Steamship Co. v. Pennsylvania, 122 U. S. 326

state commerce, through state legislation on the subject of taxation, has frequently arisen and has been passed upon in the following recent cases:

A state tax upon gross receipts of railroads for carriage of freight or passengers into, out of, or through, the State is a tax upon commerce among the States, and therefore void. Fargo v. Stevens (Michigan), 121 U. S. 230 (30: 889); S. Č. 1 Interstate Com. Rep. 51; Pickard v. Pullman Southern Car Co. (Tennessee) 117 U. S. 34 (29: 785). A state tax (Indiana) upon earnings of a sleeping car company engaged in transporting passengers from one State to another is void. State v. Woodruff Sleeping & Parlor Coach Co, 13 West. Rep. 311; S.C. 1 Interstate Com. Rep. 798.

A state tax (Pennsylvania) upon a steamship company upon gross receipts from transportation between different States and to and from foreign countries, is unconstitutional. Philadelphia & S. M. Steamship Co. v. Pennsylvania, 122 U.S. 326 (30: 1200); S. C. 1 Interstate Com. Rep. 308.

The capital stock of a foreign ferry company engaged in interstate traffic is not taxable by a State. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 (29: 158); S. C. 1 Interstate Com. Rep. 382 and note. A state statute, intended to regulate or to tax, or to impose any other restriction upon the transmission of persons or property or telegraphic messages from one State to another, is not within that class of legislation which the States may enact in the absence of legislation by Congress; and such statutes are void even as to that part of such transmission which may be within the States. Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557 (30: 244); 8. C. 1 Interstate Com. Rep. 31.

A state license tax upon commercial travelers, the agents of merchants residing out of the State, is invalid. Robbins v. Shelby County Taxing Dist. (Tennessee) 120 U. S. 489 (30; 694); S. Č. 1 Interstate Com. Rep. 45; Corson v. Maryland, 120 U. S. 502 (30: 699); S. C. 1 Interstate Com. Rep. 50: Re Hennick (Dist. of Columbia), 7 Ceut. Rep. 357, 5 Mackey, 489; S. C. 1 Interstate Com. Rep. 66; State v. Pratt (Vermont), 4 New Eng. Rep. 357, 59 Vt. 590; S. C. 1 Interstate Com. Rep. 299; Alabama v. Agee, 2 Interstate Com. Ren. 21.

Philadelphia & S. Steamship Co. v. Pennsyl vania, 122 U. S. 339 (30: 1202); Fargo v. Michi gan, 121 U. S. 241 (30: 893); W. U. Tel. Co. v. Texas, 105 U. S. 465 (26: 1068)..

Mr. Justice Miller delivered the opinion of [412] the court:

These are cross appeals from a decree of the Circuit Court for the Southern District of Ohio, Western Division.

The suit was begun by a bill of complaint, filed by the Western Union Telegraph Company against Frank Ratterman, Treasurer of Hamilton County, in the State of Ohio. As the bill is not very long, it is here presented in full:

"To the Judges of the Circuit Court of the United States for the Southern District of Ohio, Western Division:

Other recent decisions upon the subject of interstate commerce are as follows:

Intercourse by telegraph between the States is interstate commerce, and a State has no authority to regulate it; hence, an Indiana statute regulating the mode in which messages sent by telegraph companies doing business in that State shall be delivered in other States, is void. Western Union Tel. Co. v. Pendleton, 122 U. S. 347 (30: 1187); S. C. 1 Interstate Com. Rep. 306.

Section 1553 of the Iowa Code, as amended in 1886, forbidding any common carrier to bring within that State any intoxicating liquors from any other State, without first having the certificate therein required, is a regulation of commerce among the States and void. Bowman v. Chicago & N. W. R. Co. 125 U. S. 465 (31: 700); S. C. 1 Interstate Com. Rep. 823.

Transportation of property from one State to another is interstate commerce, whether the carriers engaged in moving it or the vehicles on which it is borne cross the line of the State or not. Ex parte Koehler (U. S. C. C. Oreg.); 1 Interstate Com. Rep. 29.

In the absence of interference by Congress a State may carry on works of a local character, although they necessarily affect interstate commerce. Ouachita & M. R. Packet Co. v. Aiken, 121 U. S. 444 (30: 976); S. C. 1 Interstate Com. Rep. 379. See also Gloucester Ferry Co. v. Pennsylvania, supra. Issuing policies of life insurance is not interstate commerce. List v. Pennsylvania, 10 Cent. Rep. 586; S. C. 1 Interstate Com. Rep. 781.

The only limitation upon the power of a State to exclude a foreign corporation from doing business within its limits, or to exact conditions for allow ing such corporation to do business there, arises where the corporation is in the employ of the Federal Government or where its business is strictly commerce, interstate or foreign. Pembina Consolidated Silver M. & M. Co. v. Pennsylvania 125 U. S. 181 (31: 650); S. C. 2 Interstate Com. Rep. 24.

On the subject generally, see the Interstate Commerce Reports, passim.

"The Western Union Telegraph Company, a corporation duly organized and existing under the laws of the State of New York and a citizen of said State, brings this its bill against Frank Ratterman, Treasurer of Hamilton County, Ohio, and a citizen of the State of Ohio.

"And thereupon your orator complains and says:

"That its principal office is, and during the times hereinafter mentioned was, in the City of New York; that during said time it had been and now is engaged in the business of receiving and transmitting for hire telegraph messages between different points in the United States, and in the carrying on of said business has offices in the City of Cincinnati and at other points in the County of Hamilton and in the State of Ohio, and has been engaged in the transmission of messages between said offices and other points both within and without the State of Ohio.

"That prior to 1869 your orator accepted in writing the provisions of the Act of Congress of July 4, 1866, 14 U. S. Stat. at L. 221; that your orator's wires, poles, batteries, office furniture and other property in the State of Ohio have been and are taxed like other property in said State; that your orator's telegraph lines cross nearly all of the States of the Union and occupy portions of British America, and that a [413] large amount of the commercial transactions, business, and intercourse of the people is carried on by means of their wires.

"That in the month of May, 1887, your orator, under protest, delivered to the auditor of said county a statement, as required by Revised Statutes of Ohio, section 2778, showing the entire receipts of your orator in said county for the year next preceding, which said gross receipts amounted to the sum of $175,210.88, and were principally for business between points in the State of Ohio and points outside the State of Ohio-that is to say, the receipts of your orator for messages and business pertaining to commerce between the States, and not for messages between different points within the State of Ohio; that thereupon said auditor assessed a tax thereon amounting to five thousand two hundred and six and dollars.

"Your orator says that said tax is illegal and void and in violation of the Constitution of the United States.

may issue against the defendant, and that your orator may have such other and further relief as it is in equity and good conscience entitled to.'

To this bill a general demurrer was filed, which was overruled by the court. The record then proceeds as follows:

"And thereupon it was agreed by and between the complainant and the defendant that the cause be submitted to the court on the bill without further pleading to the same by the defendant, upon the following facts:

"That of the entire receipts mentioned in the bill $142, 154.18 were for business done by the plaintiff between its offices in said county and points outside of the State of Ohio-that is, for messages and business pertaining to commerce between the States and not for messages between different points within the State of Ohio,

and that the balance of said receipts, to wit, $33,056.70 was for business between the offices of the plaintiff in said county and other points within the State of Ohio; and that if said receipts had been so separated and apportioned, and said tax had been separately assessed on the basis of such separation and apportionment the amount of said total tax of $5,206.90 apportionable to said receipts for interstate commerce would be $3,931.51, and the amount apportionable to said receipts for business between the offices of the complainant in said county and other points within the State of Ohio would have been $910.40; and that the remainder of said sum of $5,206.90, viz., $364.99, was for tax assessed upon the personal property of the said complainant within the said County of Hamilton aforesaid, namely, upon its instruments, wires, poles and other chattel property which were returned by said complainant to the auditor of said county at a valuation of $18,059.

"That Exhibit 'A,'hereto annexed and made a part of this stipulation, is a copy of the return made by complainant to the auditor of said county in pursuance of the law of the State of Ohio, and that said complainant made no other return and furnished no other information to said auditor at the time of said return, save what is contained in said return.

"That Exhibit 'B,' hereto annexed and made a part hereof, is a copy of the return of the chattel property of said complainant made at the same time to said auditor.

"Your orator has offered to the defendant "It is further agreed that the auditor of said and is ready and willing to pay to him the taxes county placed on the tax duplicate of said counchargeable against its personal property within ty said sums of $175,210.88, and $18,059 as the said county, but the defendant refuses to ac- personal property of said complainant. to be cept payment thereof unless your orator also assessed for taxation in said County of Hamilat the same time pays said total assessment for ton, and that the rate of taxation assessed thereall of said gross receipts; and, unless restrained, upon was the same as was assessed against the the defendant will impose and enforce the pen-personal property listed for taxation by the alties for nonpayment of said tax provided for citizens of said county. by Revised Statutes of Ohio, section 2843, to the interference, stoppage, and destruction of your orator's business.

"Wherefore your orator prays that the defendant may be required to accept payment of so much of said tax assessment as covers the property of your orator in the said county, and that he may be enjoined by preliminary in junction and by final decree from levying or collecting the balance of said assessment.

"Your orator prays that a writ of subpoena

"It is further agreed that complainant, prior to December 20, 1887, offered to pay the tax properly assessable against said return of $18,059 for personal property, but the defendant refused to accept payment of said assessment of $5,206.90 unless the whole were paid. The plaintiff did not disclose to said auditor at the time it made said return what portion, if any, of the gross receipts of its said offices in said county was for interstate commerce.

"It is further agreed that neither said auditor

[414]

nor said Treasurer had any actual knowledge
that any portion of the returns of said gross
receipts was for interstate commerce business,
but said officers knew that plaintiff's said busi-
ness included interstate commerce.

"And the only knowledge said auditor and
said Treasurer had of the business of said Com-
pany and what said receipts were derived from
was from the returns hereto annexed, marked
Exhibit ‘A,' and from their knowledge as afore-
said of the plaintiff's business.

"whether a single tax, assessed under the Re-
vised Statutes of Ohio, section 2778, upon the
receipts of a telegraph company, which receipts
were derived partly from interstate commerce
and partly from commerce within the State,
but which were returned and assessed in gross
and without separation or apportionment, is
wholly invalid, or invalid only in the propor-
tion and to the extent that said receipts were
derived from interstate commerce."

"The cause being thus submitted to the court
on the foregoing stipulation of facts and the ar-
gument of counsel, the court is of the opinion
that said receipts and tax may be separated and
apportioned, and that said tax, so far as so sepa-
rated and apportioned to said receipts derived
from the interstate commerce, is unconstitution-
al and void, but valid apportionable to said re-interstate commerce and part from commerce
ceipts derived from state business.

We do not think this particular question is
material in this case, because the state of facts [424]
agreed upon by the parties makes this separa-
tion, and presents the matter to the court freed
from the point raised by the question that the
tax was not separable. Nor do we believe, if
there were allegations either in the bill or an-
swer setting up that part of the tax was from

"It is thereupon ordered by the court, adjudged and decreed that the defendant is hereby forever enjoined from collecting on said assessment of $5,206.90 more than the sum of $1,275.39, and an injunction is refused as to the balance of said tax. It is further ordered that the defendant pay the costs of this suit." The judges of the circuit court, upon this state of facts, made the following certificate of a difference of opinion:

"This is to certify that at the hearing of the [416] above entitled cause before Hon. Howell E. Jackson, circuit judge, and George R. Sage, district judge, said judges differed in opinion upon the following question of law, to wit:

"Whether a single tax, assessed under the Revised Statutes of Ohio, section 2778, upon the receipts of a telegraph company, which receipts were derived partly from interstate commerce and partly from commerce within the State, but which were returned and assessed in gross and without separation or apportionment, is wholly invalid, or invalid only in the proportion and to the extent that said receipts were derived from interstate commerce.

wholly within the State, that there would have
been any difficulty in securing the evidence of
the amount of receipts chargeable to these sep-
arate classes of telegrams, by means of the ap-
pointment of a referee or master to inquire into
that fact and make report to the court. Nei-
ther are we of opinion that there is any real
question, under the decisions of this court, in
regard to holding that so far as this tax was
levied upon receipts properly appurtenant to
interstate commerce that it was void, and that
so far as it was only upon commerce wholly
within the State that it was valid.

This precise question was adjudged in the
case of the State Freight Tax, 82 U. S. 15 Wall.
232 [21:146]. That was a case in which a
statute of the State of Pennsylvania was ex-
amined which provided for a tax upon every
ton of freight transported by any railroad or
canal in that State, at certain rates,-two cents
for one class of freight, three cents for another,
and five cents for still another class. The pay-
ment of this tax was resisted by the Reading
Railroad Company upon the ground that it
was levied on interstate commerce. The com-
pany made returns to the accounting officers
of the Commonwealth, in which they stated
separately the amount of freight whose trans-

"And the district judge being of the opinion
that such a tax is wholly invalid, and the cir-
cuit judge being of the opinion that it is invalidportation was wholly within the State, and also
only to the extent and in the proportion that
the receipts upon which it is based were de-
rived from interstate commerce, said question
is hereby certified to the Supreme Court of the
United States for its opinion.

"HOWELL E. JACKSON, Circuit Judge.
"GEO. R. SAGE, District Judge."

The case has been very fully argued before
us upon all the matters properly presented by
the record, and it seems probable from the am-
icable nature of the proceedings and the agree-
ment as to a statement of facts upon which the
case was to be tried, without any answer being
filed to the bill, that the purpose was to obtain
the judgment of this court upon the general
subject of the liability of the Corporation to
taxation upon the amount of its receipts, and
that the certificate of a difference of opinion
has been used for that purpose.

With regard to the question which is certified to us as dividing the opinions of the judges of the circuit court, we do not think that there is any difficulty, and can hardly see how it arose in the present case. That question is

the amount of the transportation of freight
brought into or carried out of that State. This
court held that the tax upon the former class,
being upon commerce wholly within the State,
was valid under the law of Pennsylvania by
which it was imposed, but that the latter classes,
being commerce among the States, were not
subject to such taxation.

This ruling shows that where the subjects of
taxation can be separated so that that which
arises from interstate commerce can be distin-
guished from that which arises from commerce
wholly within the State, the court will act up-
on this distinction, and will restrain the tax on [425]
interstate commerce while permitting the State
to collect that arising upon commerce solely
within its own territory.

In Pensacola Tel. Co. v. Western Union Tel. Co. 96 U. S. 1 [24: 708], it was decided by this court that the telegraph was an instrument of commerce; that telegraph companies were subject to the regulating power of Congress in respect to their foreign and interstate business, and that such a company occupies the same relation to commerce as a carrier of messages

« Zurück Weiter »

Books

United States Supreme Court Reports, Band 32