St. Louis v. Western Union Telephone Company/Dissent Brown

by Henry Billings Brown

United States Supreme Court

148 U.S. 92

St. Louis  v.  Western Union Telephone Company

Mr. Justice BROWN, dissenting.

The tax in this case cannot be considered, and does not purport to be a tax upon the property of the defendant. The gross disparity of the tax to the value of such property is of itself sufficient evidence of this fact-the total valuation of all of defendant's property in the city of St. Louis in 1884, as fixed by the state board of equalization, being but $17,064.63, while the tax of $5 upon 1,509 poles amounted to $7,545, or more than 44 per cent. of the entire value of the property.

If it be treated as a tax upon the franchise, then it is clearly invalid, within the numerous decisions of this court, which deny the right of a state or municipality to impose a burden upon telegraph and other companies engaged in interstate commerce for the exercise of their franchises. Leloup v. Mobile, 127 U.S. 640, 8 Sup. Ct. Rep. 1380; Robbins v. Taxing Dist., 120 U.S. 489, 7 Sup. Ct. Rep. 592; Moran v. New Orleans, 112 U.S. 69, 5 Sup. Ct. Rep. 38; Harmon v. City of Chicago, 147 U.S. --, 13 Sup. Ct. Rep. 306; W. U. Tel. Co. v. Alabama State Board of Assessment, 132 U.S. 472, 10 Sup. Ct. Rep. 161; Express Co. v. Seibert, 142 U.S. 339, 12 Sup. Ct. Rep. 250.

If this tax be sustainable at all, it must be upon the theory adopted by the court that the municipality has the right to tax the company for the use of its streets. While I have no doubt of its right to impose a reasonable tax for such use, the tax must be such as to appear to have been laid bona fide for that purpose. It seems to me, however, that the imposition of a tax of $5 upon every pole erected by the company throughout the entire municipality is so excessive as to indicate that it was imposed with a different object. In the city of St. Louis alone the tax amounts, as above stated, to $7,545. A similar tax in the city of Philadelphia amounted to $16,000, while the facts show that, at the most, only $3,500 per year was required to cover every expenditure the city was obliged to make upon this account. Philadelphia v. W. U. Tel. Co., 40 Fed. Rep. 615. A like tax imposed by every city through which the defendant company carries its wires would result practically in the destruction of its business. While, as stated in the opinion of the court, $5 per pole would not be excessive if laid upon poles in the most thickly-settled business section of the city, the court will take judicial notice of the fact that all the territory within the boundaries of our cities is not densely populated; that such cities include large areas but thinly inhabited; and that a tax which might be quite reasonable if imposed upon a few poles would be grossly oppressive if imposed upon every pole within the city. In my opinion the tax in question is unreasonable and excessive upon its face, and should not be upheld. The fact that it was nominally imposed for the privilege of using the streets is not conclusive as to the actual intent of the legislative body. As was said by this court in the Passenger Cases, 7 How. 283, 458: 'It is a just and well-settled doctrine established by this court that a state cannot do that indirectly which she is forbidden by the constitution to do directly. If she cannot levy a duty or tax from the master or owner of a vessel engaged in commerce graduated on the tonnage or admeasurement of a vessel, she cannot effect the same purpose by merely changing the ratio, and graduating it of the number of masts, or of mariners, the size and power of the steam engine, or the number of passengers which she carries. We have to deal with things, and we cannot change them by changing their names.' The tax in question seems to me to indicate upon its face that it was not imposed bona fide for the privilege of using the streets, but was intended either as a tax upon the franchise of the company, or for the purpose of driving its wires beneath the ground. While the latter object may be a perfectly legitimate one, I consider it a misuse of the taxing power to seek to accomplish it in this way. I am therefore constrained to dissent from the opinion of the court.