State v. Western Union Telegraph Co.

Daneorth, J.

This is an action to recover the amount of a tax assessed upon the defendant corporation by virtue of c. 246, of the acts of 1880. The defence is that the act is void as in violation of the constitution.

That the legislature has the power to tax a foreign corporation to any extent it pleases as a condition upon which such corporation may be permitted to exercise its franchise in this state, may be considered as well settled law. Dryden v. G. T. Railway of Canada, 60 Maine, 512; Paul v. Virginia, 8 Wallace, 168; Liverpool Ins. Co. v. Massachusetts, 10 Wallace, 566; Ducat v. Chicago, Ib. 410. Under these and similar authorities it would seem that the tax in question might be sustained as against this defendant, though a somewhat graver question might possibly arise as to the proper remedy under a refusal to pay.

It is, however, evident that this tax was not imposed upon any such ground. The act includes all like corporations, both foreign and domestic, as well as companies and persons doing the same kind of business. . We therefore propose to discuss the law as applicable to these several classes, as the legislature clearly intended it.

There is no pretence of any charter limit to the liability of this company, to any taxation which may be imposed upon any corporation, company or person. The objections rest upon the prohi *526 bition found in tbe constitution and in tbe inherent nature of taxes imposed for the support of government.

In this discussion we must start with the fundamental principle, now well settled, that all acts passed by the proper authority in conformity with established forms, are presumed tobe in accordance with the constitution and none will be declared otherwise so long as any reasonable doubt of its violation of the fundamental law remains. Sedgwick on Statutory and Constitutional Law, 2d ed. 409, and cases cited.

Another principle equally well settled is thus stated by Bigelow, C. J., in Commonwealth v. Hamilton M’f'g Co. 12 Allen, at p. 301, "Where the language of the legislature is fairly susceptible of two interpretations, that one is to be adopted which will sustain an act as within the limits of legislative authority under the constitution rather than one which will defeat it on the ground that it is an excess or abuse of power.”

In the absence of any prohibition of taxation in the constitution of this state there is no limit to the power of the legislature in this respect except such as the necessities of the government may impose or such as may arise from the inherent nature of taxes. It cannot be claimed that taxes can be imposed for other than public purposes and ordinarily they must be uniform.

The only limitation to this power found in the constitution of this state material to this case, is that contained in article ix, § 8 and is as follows: "All taxes upon real and personal estate, assessed by authority of this state, shall be apportioned and assessed equally, according to the just value thereof. ” The meaning of this direction is not difficult to ascertain and if any argument were needed to show that if the act in question imposes a tax upon property as such, it comes within this limitation, certainly the elaborate and able argument» of defendant’s counsel upon that point is a demonstration of that proposition. If, however, by the proper construction of the act, it imposes a tax or excise upon a specific use of the property it is perhaps equally clear that it is not within the limitation and is in conformity with the constitution as settled by uniform practice since the organization of the government of the state. The uniformity required *527 in a tax upon use or business is satisfied by its being assessed upon all business of a like kind.

Thus the real question at issue is the proper interpretation of the act, or more properly, will it fairly bear the construction necessary to make the tax one upon the business ?

Such is the, variety and extent of meaning attached to the word tax or taxes that no argument either way can be drawn from its use. It has been at different times applied to nearly if not quite every burden imposed upon persons, property or business for the support of government and in acts for raising a revenue for public purposes it seems to be used as meaning the same thing as impost, duty, or excise.

The method by which the burden is imposed though not conclusive, has a significant bearing upon-the meaning and purpose of the act. It is not levied as property taxes usually are. There is no given sum to be assessed in which the percentage is fixed by valuation but the percentage is fixed by law leaving the amount to be ascertained by the valuation.

But what is of more importance is the kind of property selected for valuation. It is not all the property which the company may have, but only such as is used in the telegraph business. It is the telegraph line, with a detailed statement of such articles as constitute that line, or are necessary to its operation. No real estate is specified, no other property, however convenient it might be, or however much the company might own or may acquire, can be included in the valuation. This tax then is virtually imposed upon that which stands for the capital stock or rather upon the use of the property and upon the use of that which in some degree represents the extent of its business. It is that which is invested in the business and exclusively used for carrying it on, and may fairly be used as a test of the extent of the business for the purpose of fixing the amount to be paid for that business.

Further, while it is the property used which is valued, it is only while it is in use for this business. The moment the use for the specified purpose ceases, that moment the tax ceases. It is assessed upon telegraph corporations, companies and persons *528 doing that business. The business is a necessary incident to the tax; without it the tax falls and ceases to be. The corporation is assessed not because it is a corporation, but because it carries on that particular business, and the amount of that assessment is not a given sum, but ascertained by a valuation put upon that which it uses in that business. In a word the corporation is assessed because it is engaged in that particular business and the amount of the assessment is ascertained by the value of the prop- . erty exclusively used for that business. This may not be. the most accurate way of fixing the amount of business done, but it is substantially the method often adopted for that- purpose; the object of the act is the material thing and not the particular means by which it is to be attained.

But the means used do not stop here. It is not the property alone which is valued. "Any circumstances or conditions which affect the value of the property” are to be taken into consideration. We cannot assent to the proposition of counsel that this provision is without meaning. It is rather of very significant meaning if not conclusive as to the intention of the statute. It is a part of the act and cannot be ignored. These circumstances and conditions are not of the property, though incidental to it.

They may or may not add to its inherent value but they are of the highest importance as an element in the value of the use to which it is put as fixing the amount to be paid for that use. A portion of the property is fixed and cannot easily be moved from place to place. Its value must therefore very much depend upon its situation. A telegraph line as such, whatever the cost of erection, would be of very little value extending through a country without inhabitants or business. So its connection or want of connection with other lines, the competition or want of it from rival lines are circumstances very materially affecting its value, and the fact that these things are to be considered, show plainly that this is not a tax upon the property, but upon its use and capacity to earn money.

Thus it would seem that if the act in question is susceptible of an interpretation as laying a tax upon property, a fair construction of its terms leads us still more forcibly to the conclusion *529 that such was not the intention of the legislature, but that its purpose was to levy a tax upon the use or business of the company and that in reality such is the tax imposed.

In conformity with these views, we think will be found all or nearly all the cases to which our attention has been called.

In Portland Bank v. Apthorp, 12 Mass. 252 , a tax of one per cent, per year upon the capital stock of all the banks, was called in question as beyond the constitutional power of the legislature. The constitution under which the act was passed was similar in effect so far as material to this case as ours. The same objection as here was made that it was a tax upon property and lacked the necessary uniformity. But the court not denying that the capital stock was property, as it could not, sustained the tax as one upon the franchise and not upon the property of the bank.

In Commonwealth v. Hamilton M’f’g Co. 12 Allen, 298 , a tax was assessed upon the excess of the market value of all the capital stock of the company over the value of the real estate and machinery taxable in the town where situated. Here as in the case at bar the amount of the tax was fixed by the value qf a certain portion of the property of the company. Again the court not denying that the amount of the tax depended upon the value of certain property, held that the tax could not be sustained as a property tax for the want of uniformity and that it is not "proportional” but that there was nothing "in the nature of the assessment, or in the manner in which it is imposed, or in the method prescribed for ascertaining the amount which each corporation is to pay, which renders the act under which it is imposed invalid and unconstitutional as authorizing an excise or duty on the franchise or privilege of corporations,” and as such the act was sustained. The same case was heard and affirmed in United States Court, 6 Wallace, 632.

In Commonwealth v. Five Cents Savings Bank, 5 Allen, 428 , the tax in question was levied by the legislature upon the average amount of deposits for a specified time. That the deposits are a part of the property of the bank cannot be disputed, though *530 it is that class of property which tends to show the amount of business done. While this tax could not be sustained as a tax upon property, though the amount was ascertained by the value of property, it was sustained as a duty upon the franchise. To the same effect are Commonwealth v. Provident Ins. for Savings, 12 Allen, 312 ; S. C. 6 Wallace, 611; Society for Savings v. Coite, Id. 594. In these cases the question involved in the case at bar has been so fully discussed as to leave nothing to be added.

Similar taxes have been imposed upon savings banks and other corporations in our own State, and in most instances have been paid without objection, not because it is a tax upon property, but rather upon the business or franchise. This question was somewhat discussed in Jones v. Winthrop Savings Bank, 66 Maine, 242. In that case the tax was ascertained by the average deposits. It was there held that the tax could not be sustained as one upon property, but was upon the franchise, and that therefore when the bank ceased to do business as such, the tax ceased though the deposits remained. Also that the deposit did not pay the tax, "though it may materially affect the amount to be paid.” Bo in the case at bar, the corporation is assessed without regard to the amount of property it owns, but the amount depends upon the value of certain property, with the "circumstances or conditions which affect that value.”

In 1874, the legislature of this State passed an act, c. 258, of the acts of that year, assessing a tax upon railroad corporations. The amount of the tax was to be ascertained by an estimate of the cash value of all the shares constituting the capital stock of such corporation, which was enacted to be the true value of its corporate franchise " for the purposes of this act.” From this was to be deducted the value of certain property subject to local taxation and the proportional part of the line beyond the limits of the State. Upon the balance thus obtained, the corporation was to pay a tax of one and one-half per cent. " upon its corporate franchise.” In this act it is directly stated that the tax is upon the franchise. But the name is not material. It is the nature of the tax imposed which settles the question as to its validity. If *531 the tax is upon the property as such, it is illegal by whatever name we may christen it. If upon the franchise it is clearly within legislative power, though the name be omitted and though the value of the franchise may be ascertained by an estimate of certain property. Now it is clear that the shares of a corporation are property, and just as clear that their value is not a certain test of the value of the franchise, except as they are arbitrarily made so "for the purposes of this act.” In this act and in the one in question, the tax is assessed upon the same principle, and the amount is ascertained by the same method, the valuation of certain specific property. It would seem that if the one is within the legislative power the other must be also. If there is any difference the advantage must be in favor of that now in question, for that does require a valuation of " circumstance or conditions” which are not property, but must relate to the business of the company, while the railroad act requires the valuation of property only. The constitutionality of this act assessing railroad corporations was before the court in State v. M. C. R. Co. 66 Maine, 488. It was there sustained. It is true the same objection was not made that it was a tax upon property that is now raised. But if the objection is valid, it may well excite surprise, that it was overlooked both by the court and the eminent counsel engaged in the defence.

Under the conclusion to which we are brought, that the tax is one upon the business of the defendant corporation, and not upon its property, many of the objections raised do not apply, which otherwise would require serious attention. Our constitution imposes no restriction upon the legislature in imposing taxes upon business. In this respect it differs from that of New Hampshire and some other states, where it is required that all taxes shall be " proportional and reasonable,” and for that reason, some of the cases cited do not apply. It is undoubtedly true that all taxes whatever the form they take, must be for a public purpose. It requires no provision in the constitution to prevent their being levied for any other.

It is objected in this case that the distribution of this tax as provided in the act, shows that it is not for a legitimate purpose. *532 What distribution was contemplated is somewhat difficult, perhaps impossible to ascertain from the act itself. If it is all to go to “the towns, it would still be a public purpose. But that is a matter which is not now involved. The tax is imposed by the State. It is to be paid to the’state treasurer as other public funds. It then becomes a public fund to be used for a public purpose. If diverted from that, the remedy is not by a refusal to pay. If the last section of the act should prove to be in violation of the constitution, or void for uncertainty, it does not aifect' the remainder. This is not a case where one district is required to pay a tax for the support of another. It is like other excise taxes raised in any part of the State to be appropriated by the State wherever its needs or its sense of justice may require.

The exemption of the corporate property from further taxation, is a matter of which this defendant can hardly complain. But if so, it is a clause which in the same or similar form is inserted in all or nearly all the acts of this character, and is so inserted as a matter of justice to the party, and for the very purpose of equalizing the taxes assessed. We are not aware of any provision of the constitution which is violated by it.

Judgment for the State, §2500 and interest since September 1, 1880.

Appleton, C. J., Walton, Barrows, Virgin and Symonds, ■JJ., concurred.