# Opinion — Williams v. City of Talladega

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1913
- **Citation:** 226 U.S. 404

## Text

WILLIAMS v. CITY OF TALLADEGA.

ERROR TO THE SUPREME COURT OF THE STATE GF ALABAMA.
No. 44. Argued November 7, 8, 1912.—Decided December 23, 1912.

The privilege given telegraph companies under the act of July 24,
1N66, to use military and post roads of the United States for poles
and wire, was permissive and did not ereate corporate rights and priv-
ileges to carry on the business of telegraphy.

The corporate rights and privileges were derived from the laws of the
State of incorporation.

The permission given by the act of 1866 does not prevent a State from

WILLIAMS v. ‘TALLADEGA. 405
226 U.S. Argument for Plaintiff in Error.

taxing the real or personal property of a telegraph company within
its borders or from imposing a license tax upon the right to do a
local business within the State. West. Un. Tel. Co. v. Kansas, 216
U. 3. 1, distinguished.

Unless there is a claim that a Federal right is violated the reasonable-
ness of a municipal license ordinance is for the State to determine.

In determining its validity this court must consider a municipal ordi-
nance as it has been construed by the highest court of the State.

An agency of the Federal Government in the execution of its sovereign
power is not subject to the taxing power of the State.

An ordinance which taxes without exemption the privilege of carrying
on business, part of which is a governmental agency such as teleg-
raphy, and makes no exemption of that class of the business, in-
cludes its transaction and is void as an unconstitutional attempt to
tax a Federal agency.

Where, as in this case, the part of the license exacted necessarily affects
the whole it makes the entire tax unconstitutional and void.

164 Alabama, 633, reversed.

Tue facts, which involve the validity of an ordinance of
a municipality in Alabama to impose a license fee on tele-
graph corporations transacting an intrastate business
without exempting messages sent by the Government,
are stated in the opinion.

Mr. Rush Taggart and Mr. William M. Williams, with
whom Mr. John F. Dillon, Mr. George H. Fearon, Mr. F.
N. Whitney and Mr. Roy Rushton were on the brief, for
plaintiff in error:

The act of July 24, 1866, §§ 5263-5268, Rev. Stat.,
granted to the telegraph company accepting its provisions
the right to go into any State, and as an agency of the
Government to construct, operate and maintain telegraph
lines along, over and upen the post roads, and over, under
or across the navigable waters of the United States.

No State by legislation ean prevent the construction of
telegraph lines. The right to maintain and operate is
given as fully and completely as the right to construct.
This right is not simply to operate from point to point

4060 OCTOBER TERM, 1912.
Argument for Plaintiff in Error. 226 U.S.

within the State as a government agent for the transmis-
sion of government messages, but also to operate for any
and all business which may be offered the telegraph com-
pany, interstate and intrastate, government and private
messages alike. Charles River Bridge Case, 11 Pet. 420,
557; United States v. Denver Ry. Co., 150 U.S. 1: Brown
v. Maryland, 12 Wheat. 436, 467.

A franchise was granted to the telegraph company by
Congress. California v. Pacific R. R. Co., 127 U.S. 1, 35;
West. Un. Tel. Co. v. Texas, 105 U.S. 460.

The property of a corporation of the United States may
be taxed by a State, but not through its franchise. Cent.
Pac. R. R. Co. v. California, 162 U.S. 92.

The legislation leading to the act of July 24, 1866,
originated in the Senate at the first session of the 39th
Congress. The legislative history of the act as it appears
in Cong. Globe, pt. 2, Ist Sess., 39th Cong., p. 979, and
Report of the Postmaster General, on the subject of a
postal telegraph, laid before the Senate, and by it referred
on June 4 to a select committee, shows clearly that with
respect to intrastate as well as interstate business under
this act of July 24, 1866, the Western Union Telegraph
Company was created an instrumentality of the Federal

rovernment, and endowed with a franchise to construct,
maintain and operate telegraph lines on the post roads of
the United States, with the duty, in the operation of these
lines, to serve not only the Government of the United
States under the conditions named in the act, but also to
serve the public which might want to transact business
over its lines.

This being so, then clearly an attempt to impose a
license tax upon the company, either by any State or
municipality, is an attempt to require, as a condition to
the exercise of this government franchise within the
State, the payment of a tax upon the grant so made by
the Government. This is not permissible. See West. Un.

WILLIAMS vr. TALLADEGA 407
226 U.S. Argument for Plaintiff in Error.

Tel. Co. v. Massachusetis, 125 U.S. 330; Carthage v. First
National Bank, 71 Missouri, 508; National Bank v.
Chatianooga, 8 Heisk. (Tenn.) S14.

Upon the question as to the right of the State or mu-
nicipality arbitrarily thus to exclude the telegraph com-
pany, see West. Un. Tel. Co. v. Kansas, 216 U.S. 1; Puil-
man Co. v. Kansas, 216 U. 3S. 56.

The ordinance cannot be sustained as an act coming
within the police power of the City of Talladega. West.
Un. Tel. Co. v. New Hope, 187 U.S. 419; Adanitic &e. Tel.
Co. v. Philadelphia, 190 U. S. 160; Pastal Tel. Co. v.
Taylor, 192 U.S. 64, do not apply, as no expense whatever
was incurred in the way of police inspection or super-
vision in this instance.

If license fees at the average rate obtaining in Georgia,
Alabama, Virginia and South Carolina for the year 1912
had been applied in all the States of the Union at cities,
towns and villages where offices are maintained by the
telegraph company, the total license fees would have
amounted to $659,973.60 in addition to all other taxes
now paid.

There is no exclusion from the ordinance of the right to
do government business within the State, and the right to
transact such business is likewise clearly within the pro-
hibitions of the ordinance until the telegraph company
has paid the amount demanded. Railroad Co. v. Peniston.
IS Wall. 5; Netll, Moore & Co. v. Ohio, 3 How. 720.

If a municipality may by an ordinance like this demand
all the net revenue of a telegraph company as a considera-
tion for the privilege of doing business with other points
within the State, it is clear that the offices maintained in
a State for both interstate and intrastate business may
in time be required to be supported wholly by the inter-
state commerce business. This would result in abandon-
ing many offices, thus depriving the Government of many
of the facilities now available to it, and which have been

408 OCTOBER TERM, 1912.
Argument for Plaintiff in Error. 226 U.S.

constructed and operated by the telegraph company under
the act of Congress of July 24, 1866.

Congress has the power to grant a franchise to do an
intrastate as well as an interstate telegraph business on
the post roads of the United States. Leloup v. Mobile,
127 U.S. 640; West. Un. Tel. Co. v. Texas, 105 U.S. 460;
West. Un. Tel. Co. v. Massachusetts, 125 U.S. 530.

Since Congress by the act of 1866, conferred upon the
Western Union Telegraph Company the right to do an
intrastate telegraph business along the post roads, the
City of Talladega cannot impose a license tax thereon.
McCullough v. Maryland, 4 Wheat. 316; Osborn v. Bank: of
U. S., 9 Wheat. 740; West. Un. Tel. Co. v. Visalia, 149
California, 744; West. Un. Tel. Co. v. Lakin, 101 Pac. Rep.
1094; West. Un. Tel. Co. v. Wright, 185 Fed. Rep. 250;
Harmon v. Chicago, 147 U. 8. 396; Moran v. Chicago, 112
U.S. 69; California v. Cent. Pac. Ry. Co., 127 U.S. 1, 45;
West. Un. Tel. Co. v. Texas, 105 U. S. 460; Union Pac.
R. R. Co. v. Peniston, 18 Wall. 5.

The ordinance is in contravention of the laws of the
United States, in that it fails to exclude messages sent
on Government business within the State. Postal Tel.
Co. v. Charleston, 153 U.S. 692; West. Un. Tel. Co. v.
Texas, 105 U. 8. 460; Leloup v. Port of Mobile, 127 U.S.
650.

The ordinance is invalid for the reason that the license
imposed is for revenue and not for police regulation or
inspection. Postal Tel. Co. v. Taylor, 192 U. 5. 64; Sunset
Tel. Co. v. Bedford, 115 Fed. Rep. 202; Ottuma v. Zekind,
95 Iowa, 622; Chaddock v. Day, 75 Michigan, 527; Austin
v. Murray, 16 Pick. (Mass.) 126.

The City of Talladega has no right to arrest an operator
of the Western Union Telegraph Company for violating
a license ordinance.

The telegraph company in the transmission of govern-
ment messages is in the service of the Government as is a

WILLIAMS v. TALLADEGA. 409
220 U:. 5. Argument for Defendant in Error.

rural mail carrier. Ex parte Conway, 48 Fed. Rep. 77;
Re Matthews, 122 Fed. Rep. 248, 259.

The ordinance is unreasonable and therefore void.

When an ordinance imposes a license that is unreason-
able in amount, the ordinance is for that reason void.
Ex parte Byrd, 84 Alabama, 17, 20; Hendrick v. State, 142
Alabama, 43, 46; Marion v. Chandler, 6 Alabama, 899, 901;
Ex parte Frank, 52 California, 606; Postal Tel. Co. v. New
Hope, 192 U.S. 55; Ottuma v. Zekind, 95 Iowa, 622; Sim-
rall vy. Covington, 90 Kentucky, 444; Brooks v. Mangan, 86
Michigan, 576; Chaddock v. Day, 85 Michigan, 527; St.
Paul v. Laidler, 2 Minnesota, 190.

Mr. J. K. Dizon for defendant in error:

The first point insisted on by counsel for plaintiff in
error is that the franchise of the company to do business
in Talladega is derived solely from Congress, and is there-
fore not taxable by the city for the purpose of revenue.
While this court has held that where the privilege or
license tax is for the use of the city and imposed upon the
company’s business generally it must be charged solely
under police power and should be approximately what it
cost for police protection and inspection, St. Louis v. West.
Un. Tel. Co., 148 U.S. 92, a different rule applies where
the same is limited to a license based solely on intrastate
business. In such a case the charge can be made both as
a police regulation and for the purpose of raising revenue.
This court has held in numerous cases that, notwithstand-
ing a telegraph company has accepted the conditions of
the act of July 24, 1866, a license fee may be imposed on
such company for business done exclusively within the
State. Postal Tel. Co. v. Charleston, 153 U.S. 692; West.
Un. Tel. Co. v. Texas, 105 U. 8. 460; Ratterman vy. West.
Un. Tel. Co., 127 U.S. 411; West. Un. Tel. Oo. v. Pennsyl-
vania, 128 U.S. 39; West. Un. Tel. Co. v. Massachusetts,
125 U.S. 530; West. Un. Tel. Co. v. Missouri, 190 U.S.

410 OCTOBER TERM, 1912.
Argument for Defendant in Error. 226 U.S.

412: West. Un. Tel. Co. v. Seay, 132 U.S. 472. See also
37 Cyc. 1622; Williams v. Talladega, 164 Alabama, 633;
West. Un. Tel. Co. v. Freemont, 26 L. R. A. 698.

The second proposition which is urged in the brief of
counsel for plaintiff in error is that even if this court
followed the former decisions on this question, notwith-
standing this, it will declare this ordinance invalid because
of the fact that governmental messages are not excluded
from this ordinance.

In this case the tax is limited in the terms of the ordi-
nance levying it to the business of sending messages be-
tween points exclusively within the State. The fact that
a part of the business done by the company consists in
the sending of messages for the Government does not
affect the right of the State to impose a reasonable privi-
lege tax. Whether government messages are transmitted
at a reduced rate which has material effect upon the com-
pany’s income at Talladega, is the subject of proof and
must be taken into account when passing upon the reason-
ableness of the license charged. Moore v. Eufaula, 97
Alabama, 670.

There is no evidence showing that any governmental
messages were sent by the Talladega office on which any
fees were charged.

This court will only consider an objection of this charac-
ter, if the city or State has authority to fix a license, where
it is so unreasonable that it amounts practically to con-
fiseation. The ordinance in this case does not impose an
unreasonable license fee. This court cannot review the
state court as to the amount. Postal Tel. Co. v. Charles-
ton, 153 U. 8. 692, 699. If business done wholly within
a State is within the taxing power of the State, the courts
of the United States cannot review or correct the action
of the State in the exercise of that power. Troy v. West.
Un. Tel. Co., 164 Alabama, 482.

The evidence does not show anything as to business

WILLIAMS v. TALLADEGA. 411

226 U.S. Opinion of the Court.

year in and year out, which would justify the court in
pronouncing the tax in question to be void. Williams
v. Talladega, 164 Alabama, 633; Atlantic Tel. Co. v. Phila-
delphia, 190 U. S. 160; Nashville & Chattanooga R. R. v.
Attalla, 118 Alabama, 362.

Mr. Justice Day delivered the opinion of the court.

This is a writ of error to review the judgment of the
Supreme Court of the State of Alabama affirming the
judgment of the City Court of Talladega. 164 Alabama,
633.

D. G. Williams, the plaintiff in error, was convicted of
doing business in the City of Talladega, as agent of the
Western Union Telegraph Company, from October 1,
1908, to December 31, 1908, without taking out and pay-
ing for a license, in violation of an ordinance of the city.
The ordinance contained a schedule of licenses for divers
businesses, vocations, occupations and professions carried
on in the city, among others, the following:

‘“€158. Telegraph Company. Each person, firm

or corporation commercially engaged
in business of sending messages to and
from the City to and from points in the
state of Alabama for hire or reward... $100.”

Section 2 of the ordinance declared that the license was
exacted in the exercise of the police power of the city,
as well as for the purpose of raising revenue for the city.
The fourth section provided that any person, firm or
corporation who engaged in any trade, business or pro-
fession for which a license was required, without first
having obtained such license, should be guilty of an offense
and upon conviction should be fined not less than one and
not more than one hundred dollars, and that each day
should constitute a separate offense.

The record discloses that the corporation was organized

412 OCTOBER TERM, 1912.
Opinion of the Court. 226 U.S.

under the laws of the State of New York and had accepted
the provisions of the act of Congress of July 24, 1866,
14 Stat. 221, c. 230 (Rev. Stat., $§ 5263-5268) and for
several years theretofore and during the years 1907 and
1908 had had an office in the City of Talladega and was
engaged in the business of transmitting messages between
private parties and between the departments and agencies
of the United States Government from Talladega to other
points in the State of Alabama and also from other points
in the State of Alabama to Talladega; that during the
months of October, November and December, 1908,
Williams was employed by the Western Union Telegraph
Company as manager of its office at Talladega; that a
license fee of $25 was demanded of him for the quarter
ending December 31, 1908, which was refused, and that he
was fined $25 and costs, and in the event of his failure to
pay the fine and costs he was sentenced to labor on the
streets for fifty days. It also appears that the Western
Union Telegraph Company pays taxes on its property in
the State. In addition to the agreed facts, from which the
above statement is taken, it is shown by the testimony
of the defendant that the lines of the Western Union
Telegraph Company enter and leave the city over the
right of way of the Southern Railroad and the Louisville
and Nashville Railroad, both of which are public railroads,
and that within the City of Talladega the company has
lines which leave the right of way of the railroad com-
panies and proceed along public streets to the office of the
company; and also that government messages were re-
layed daily at the Talladega office; that it received mes-
sages between the different departments of the Govern-
ment of the United States at this office from points within
the State; and that government messages were given a
preference and were sent at reduced rates. From the
testimony, the Supreme Court of Alabama found that for
the year 1908, not including the month of January, the

WILLIAMS v. TALLADEGA. 413
226 U.S. Opinion of the Court.

company did its intrastate business at a net loss of eighty-
six cents.

This case differs from some cases which have been in
this court involving the right to tax the Western Union
Telegraph Company, in that it places emphasis upon the
alleged immunity from taxation of the class herein in-
volved, because, it is contended, by the act of 1866,
Congress, by virtue of the authority given it to establish
post roads, conferred Federal franchises upon the com-
pany and made the Western Union Telegraph Company
an instrumentality of the Federal Government, endowed
with franchises to construct, maintain and operate tele-
graph lines on the post roads of the United States, with
the duty in the operation of those lines not only to serve
the Government of the United States, but also to serve the
public which might wish to transact business over its
lines. This being so, it is now insisted that the attempt to
impose a license tax upon the company, either by the State
of Alabama or any of its municipalities, is an attempt to
impose a tax on the franchises so created by the Federal
Government.

The question made upon this point was considered in
Postal Telegraph Cable Co. v. Charleston, 153 U. 8. 692.
In that case the Postal Telegraph Cable Company had
accepted the provisions of the act of 1866, and the state
statute imposed a license of $500 upon the telegraph com-
pany for business done exclusively within the City of
Charleston, not including any business done to or from
points without the State and not including any business
done by the officers of the United States. It was con-
tended for the telegraph company that the license re-
quired by the ordinance was a tax upon it for the privilege
of exercising its franchise within the City of Charleston;
that the telegraph company having constructed its lines
along post roads in the City of Charleston and elsewhere,
no state or municipal authority could collect a license fee

414 OCTOBER TERM, 1912.
Opinion of the Court. 226 U.S.

from it for the privilege of conducting its business, “thus
restraining the powers possessed by it under its franchises
and under the acts of Congress,” and furthermore that the
ordinance in question was an interference with interstate
commerce and therefore void. It will thus be seen that
in that case not only was the contention made as to the
interstate commerce feature of the telegraph company’s
business, but it was specifically claimed that to exact such
a license would restrain the powers possessed by it under
the franchises created by the act of Congress. After re-
viewing a number of cases, Mr. Justice Shiras, who
delivered the opinion of the court, said (p. 700):

“It is further contended that the ruling of the cited
cases does not cover the case of a telegraph company which
has constructed its lines along the post roads in the City
of Charleston, and elsewhere, and which is exercising its
functions under the act of Congress as an agency of the
Government of the United States. It is obvious that the
advantages or privileges that are conferred upon the com-
pany by the act of July 24, 1866 (Rev. Stat., §§ 5263-
5268), are in the line of authority to construct and main-
tain its lines as a means or instrument of interstate com-
merce, and are not necessarily inconsistent with a right on
the part of the State in which business is done and prop-
erty acquired to tax the same, within the limitations
pointed out in the cases heretofore cited.”

In Western Union Telegraph Co. v. Gotilieb, 190 U. S.
412, this court, again considering the act of 1866, after
quoting from the opinion of Mr. Justice Miller in Wesfern
Union Telegraph Co. v. Massachusetts, 125 U. 5. 530, said
(p. 423), speaking by Mr. Justice McKenna:

“These propositions were laid down: That the com-
pany owed its existence as a corporation and its right to
exercise the business of telegraphy to the laws of the
State under which it was organized; that the privilege
of running the lines of its wires over and along the mili-

WILLIAMS v. TALLADEGA. 415
226 U.S. Opinion of the Court.

tary and post roads of the United States was granted by
the act of Congress, but that the statute was merely per-
missive and conferred no exemption from the ordinary
burdens of taxation; that the State could not by any
specific statute prevent a corporation from placing its
lines along the post roads or stop the use of them after
they were so placed, but the corporation could be taxed
in exchange for the protection it received from the State
‘upon its real or personal property as any other person
would be. And describing the particular tax imposed
it was said:

“The tax in the present case, though nominally upon
the shares of the capital stock of the company, is in effect
a tax upon that organization on account of property
owned and used by it in the State of Massachusetts, and
the proportion of the length of its lines in that State to
their entire length throughout the whole country is made
the basis for ascertaining the value of that property. We
do not think that such a tax is forbidden by the acceptance
on the part of the telegraph company of the rights con-
ferred by section 5263 of the Revised Statutes, or by the
commerce clause of the Constitution.’”’

In the latest utterance of this court upon the subject
under consideration, Western Union Telegraph Co. v.
Richmond, 224 U.S. 160, Mr. Justice Holmes, delivering
the opinion of the court, said (p. 169):

“The act of Congress of course conveyed no title and
did not attempt to found one by delegating the power to
take by eminent domian. Western Union Telegraph Co.
v. Pennsylvania Railroad Co., 195 U.S. 540, 574. It made
the erection of telegraph lines free to all submitting to
its conditions, as against an attempt by a State to exclude
them because they were foreign corporations, or because
of its wish to erect a monopoly of its own. Pensacola
Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1.
It has been held to prevent a State from stopping the

416 OCTOBER TERM, 1912.
Opinion of the Court. 226 U.S.

operation of lines within the act by injunction for failure
to pay taxes. Western Union Telegraph Co. v. Attorney
General of Massachusetts, 125 U. 8. 530. But excepi in
this negative sense the statute is only permissive, not a
source of positive rights.”

These cases, taken together, establish the proposition
that the privilege given under the terms of the act to use
the military and post roads of the United States for the
poles and wires of the company is to be regarded as per-
missive in character and not as creating corporate rights
and privileges to carry on the business of telegraphy,
which were derived from the laws of the State incor-
porating the company, and that this permissive grant
did not prevent the State from taxing the real or personal
property belonging to the company within its borders
or from imposing a license tax upon the right to do a local
business within the State. Nor is there anything running
counter to the former cases in the case of Western Union
Telegraph Co. v. Kansas, 216 U. 8. 1, wherein it was held
that the attempt to levy a graded charter fee upon the
entire capital stock of the Western Union Telegraph
Company, a corporation of another State, engaged in
commerce among the States, as a condition to the right
to do local business within the State of Kansas, was void
as an attempt, when the substance of things was reached,
to tax the right of the company to do interstate business
within the State and as a tax upon pruperty beyond the
limits and jurisdiction of the State.

It is further contended that the tax is unreasonable
and unjust because of its effect upon interstate business.
The reasonableness of the ordinance, unless some Federal
right set up and claimed is violated, is a matter for the
State to determine. It is contended that the result of the
tax upon the intrastate business conducted at a loss is to
impose a burden upon the other business of the company
and is therefore void. The Supreme Court of Alabama,

WILLIAMS v. TALLADEGA. 417
226 U.S. Opinion of the Court.

however, reached the conclusion that the attempted test
for eleven months, showing a loss of eighty-six cents, is
not a sufficiently accurate representation of the business
of the company conducted at Talladega to render the
tax void. With this view we agree, and we are not satis-
fied that the tax is such as to impose a burden upon inter-
state commerce, and therefore make it subject to attack
as a denial of Federal right.

It is further contended that this ordinance is void be-
cause it makes no exception as to the sending of govern-
ment messages. In this respect it is suggested in the brief
of the defendant in error that the ordinance may be con-
strued as not to include business transacted by the com-
pany as anagency of the Government, and as applying only
to commercial business of a different character; but, in
view of the construction which the Supreme Court of
Alabama has placed upon it, we must consider the ordi-
nance as construed by that court. Upon the authority of
a previous case (Moore v. Eufaula, 97 Alabama, 670),
it held the ordinance valid, although it does not exclude
messages sent for the Government of the United States.
In this connection it said:

“The fact that a part of the business done by the com-
pany consists in the sending of messages for the govern-
ment does not affect the right of the state to impose a
reasonable privilege tax, ;

We therefore have to consider whether a license tax by
a State on the doing of business within the State, includ-
ing the transmission of government messages, by a tele-
graph company which has accepted the terms of the act
of 1866, can be lawfully imposed. By the act of 1866
government messages are given priority over all other
business and are transmitted at the rates annually fixed
by the Postmaster General; and before the telegraph
companies exercise any of the powers or privileges con-
ferred by the law they are required to file with the Post-

VOL. CCXXVI—27

”

418 OCTOBER TERM, 1912.
Opinion of the Court. 226 U.S.

master General their written acceptance of the restrictions
and obligations of the act (Rev. Stat., $§ 5266 and 5268).

This court has had occasion to consider the effect of this
legislation and the acceptance of its terms by the telegraph
company, so far as the transmission of government tele-
grams and the transaction of government business is con-
cerned. In the case of Telegraph Co. v. Texas, 105 U. 5.
460, an ordinance was held void which required the com-
pany to pay a tax of one cent for all full rate messages sent,
and one-half cent for every message less than full rate.
This was in addition to taxes paid by the company on real
and personal property in the State. The ordinance was
held void as levying a tax upon interstate messages and
also void in so far as it undertook to tax the transaction of
government business. After declaring that as to such
business companies which had accepted the terms of the
act became government agencies, this court, speaking by
Mr. Chief Justice Waite, said (p. 464):

“The Western Union Telegraph Company having ac-
cepted the restrictions and obligations of this provision
by Congress, occupies in Texas the position of an instru-
ment of foreign and interstate commerce, and of a govern-
ment agent for the transmission of messages on public
business. Its property in the State is subject to taxation
the same as other property, and it may undoubtedly be
taxed in a proper way on account of its occupation and its
business. The precise question now presented is whether
the power to tax its occupation ean be exercised by placing
a specific tax on each message sent out of the State, or
sent by public officers on the business of the United
States.”

And, after dealing with the interstate commerce feature
of the law, said (p. 466):

“ As to the government messages, it is a tax by the State
on the means employed by the government of the United
States to execute its constitutional powers, and therefore,

oT See

WILLIAMS rv. TALLADEGA. 419
226 U.S. Opinion of the Court.

void. It was so decided in McCulloch v. Maryland (4
Wheat. 316), and has never been doubted since.”

The ordinance sustained in Postal Telegraph Cable Co.
y. Charleston, supra, expressly excluded interstate and
government messages.

Were it otherwise, an agency of the Federal Government,
in the execution of its sovereign power, would be at the
mercy of the taxing power of the State. It is enough in this
connection to refer to the cases of McCulloch v. Maryland,
supra; Osborn v. Bank, 9 Wheat. 738; Railroad Co. v. Pen is-
ton, 18 Wall. 5; California v. Central Pacific R. R. Co., 127
U.S. 1; Central Pacific R. R. Co. v. California, 162 U.S. 91.

We have, then, an ordinance which taxes, without ex-
emption, the privilege of carrying on a business a part of
which is that of a governmental agency constituted under
a law of the United States and engaged in an essential
part of the public business—conununication between the
officers and departments of the Federal Government.
The ordinance, making no exception of this class of busi-
ness, necessarily includes its transaction within the privi-
lege tax levied. This part of the license exacted neces-
sarily affects the whole and makes the tax unconstitu-
tional and void. In Leloup v. Port of Mobile, 127 U.S. 640,
Mr. Justice Bradley, speaking for the court, said (p. 647):

“It is urged that a portion of the telegraph company’s
business is internal to the state of Alabama, and therefore
taxable by the state. But that fact does not remove the
difficulty. The tax affects the whole business without
diserimination.”” And see Western Union Co. v. Alabama
Assessment Board, 132 U. S. 472, 477; Allen v. Pullman
Car Co., 191 U. 8. 171, 179.

For this reason we think the judgment of the Supreme
Court of Alabama should be reversed and the case re-
manded to that court for further proceedings not incon-
sistent with this opinion.

Reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0576%3A3. Public record. Not legal advice.