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contrary to law and just and fair dealings, whereby petitioner was greatly damaged in his business in actual outlay in freights in excess of freights paid defendant by said W. L. Wells & Co. on cotton so shipped by him. to said points during said time. That in consequence of said discrimination in favor of said W. L. Wells & Co. petitioner lost large sales of cotton which said W. L. Wells & Co. were enabled to make, to-wit, 3,000 bales, on which he would have realized $1 per bale, making $3,000; that said unlawful discrimination was done in the following manner, that is to say, the said Vicksburg, Shreveport & Pacific Railroad Company, a corporation owning and operating a railroad in Louisiana, between Shreveport in Louisiana and Vicksburg in Mississippi, which connects with the Vicksburg & Meridian Railroad in Mississippi, is and was under the same management as the Vicksburg & Meridian Railroad, and is and was part of a system to which the Vicksburg & Meridian Railroad belonged, though said companies were separate as to their property rights; that under some complicated arrangement, which was a secret one, and not known to petitioner, or advertised to the public, the said W. L. Wells & Co. were given by the defendant a preference and advantage over petitioner in his shipment of cotton to the eastern states, as aforesaid; that the arrangement aforesaid was such that for the whole period from the 1st of September, 1887, to the 1st of September, 1888, petitioner and the whole public were kept in absolute ignorance of the fact that such arrangements were possible; that by means of such schemes, subterfuges, pretexts, and artifices, the defendant placed the petitioner at a great disadvantage in his business, and deprived him of the equality in treatment in shipping cotton as aforesaid to which he was and is entitled by law, and said W. L. Wells & Co. were given undue preference and advantage over him as aforesaid.

To the charges thus made the defendant has interposed his answer by way of plea, by which he denies this discrimination as charged, and states the facts in relation to the matters referred to in the petition to be as follows: The arrangement was for the shipping of cotton from Delhi, La., a station on the Vicksburg, Shreveport & Pacific Railroad to Boston and other eastern points, with the privilege of stopping the cotton at Vicksburg for the purpose of compressing it, under which arrangement Wells & Co. purchased cotton at Delhi, and shipped it to themselves at Vicksburg, on bills of lading to that point, and, when the cotton was compressed and ready for forwarding to destination, the bills of lading from Delhi to Vicksburg were surrendered to the agent of respondent at Vicksburg, who canceled them, and in lieu thereof issued other bills of lading from Vicksburg to final destination, at rates, which, added to the rates already paid from Delhi to Vicksburg, made totals equivalent to the direct, through, published rates from Delhi to such points of final destination; that such arrangements are now, and have been for many years, prevalent on all railroads in the cotton-growing country, which was and is well known to petitioner and all other cotton shippers, and especially to petitioner, who made a similar arrangement with respondent on cotton shipped from Greenville, Miss., over the Louisville, New

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 shippers.

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. 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.

ΤΑΧ.

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 sec tion 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.

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