St. Louis v. Western Union Telephone Company
Action commenced in the circuit court of the city of St. Louis, Mo., by the city of St. Louis against the Western Union Telegraph Company, to recover the sum of $22,635 as a tax or rental for the use of the city streets by the erection of telegraph poles. The cause was removed to the United States circuit court for the eastern district of Missouri, and was tried by the court, without a jury. Judgment was entered for defendant, (39 Fed. Rep. 59,) and plaintiff brings error. Reversed.

Statement by Mr. Justice BREWER: On February 25, 1881, the city of St. Louis passed an ordinance, known as 'Ordinance No. 11,604,' authorizing any telegraph or telephone company duly incorporated according to law, doing business or desiring to do business in the city of St. Louis, to set its poles, pins, abutments, wires, and other fixtures along and across any of the public roads, streets, and alleys of the city, subject to certain prescribed regulations. Sections 6, 8, and 9 read as follows:

'Sec. 6. Every telegraph or telephone company doing business in this city shall keep on deposit with the treasurer the sum of fifty dollars, subject to the order of the street commissioner, to be used by him in restoring any sidewalk, gutter, street, or alley pavement displaced or injured in the erection, alteration, or removal of any pole of such company, when said company refuses or fails to make such restoration to the satisfaction of such commissioner. Any company

'Sec. 8. Any company erecting poles under the provision of this ordinance shall, before obtaining a permit therefor from the board of public improvements, file an agreement in the office of the city register permitting the city of St. Louis to occupy and use the top cross arm of any pole erected, or which is now erected, for the use of said city for telegraph purposes free of charge.

'Sec. 9. Nothing contained in this ordinance shall be so construed as to in any manner affect the right of the city in the future to prescribe any other mode of conducting such wires over or under its thoroughfares.'

On March 22, 1884, another ordinance, known as 'Ordinance No. 12,733,' was passed. This ordinance was entitled 'An ordinance to amend ordinance number 11,604,' etc., and amended that ordinance by adding certain sections, of which section 11 reads as follows:

'Sec. 11. 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.'

This section continued in force, and was incorporated into and became a part of an ordinance of the city, entitled 'An ordinance in revision of the ordinances of the city of St. Louis, and to establish new ordinance provisions for the government of said city,' approved April 12, 1887, and numbered 14,000, the section being in said revised ordinance known as 'section 671 of article 8 of chapter 15.'

The Western Union Telegraph Company being one of the companies designated in section 671, not taxed on its gross income for city purposes, and failing to pay the sum of five dollars per annum for each telegraph pole, as required by said section, on April 7, 1888, there was filed in the office of the clerk of the circuit court of the city of St. Louis a petition, setting forth these various ordinances, alleging that the telegraph company had during the three years last past held, owned, and used in the streets and public places of the city of St. Louis 1,509 telegraph poles, and praying to recover the sum of $22,635 therefor. This suit was removed by the telegraph company to the United States circuit court for the eastern district of Missouri, and on February 16, 1889, an amended answer was filed by the company, admitting its use of the streets of the city of St. Louis as charged, and that it was not taxed on its gross income for city purposes, but denying the validity of the said ordinance, and the authority of the city to pass it. It also set up as defenses that it was a corporation chartered, created, and organized under the laws of the state of New York; that it owned, controlled, and used lines of telegraph in various parts of the United States, which connected with its lines in the city of St. Louis; that on the 5th of June, 1867, it duly filed with the postmastergeneral of the United States a written acceptance of the restrictions and obligations required by law under and in accordance with the act of congress of the United States, approved July 24, 1866, entitled 'An act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military, and other purposes,' and that it had ever since been subject to and complied with the terms of such act; that the streets and public places of the city of St. Louis were established post roads of the United States, under and in pursuance of the laws of the United States, and of the authorized rules and regulations of the officers and departments of the United States, made, passed, and adopted in pursuance of said laws; that it had constructed, operated, and maintained its lines of telegraph in the city of St. Louis under and by virtue of the authority of said acts of congress; that while the city of St. Louis claims compensation from the defendant in the sum of five dollars per annum on account of each and every telegraph pole in the streets, alleys, and public places in the city, yet in fact the said sum so assessed and sought to be recovered from it is a privilege or license tax for the privilege of carrying on its business in the city of St. Louis; and that its assessment and attempted enforcement and collection are in violation of article 1, § 8, pars. 3, 7, of the constitution of the United States.

The defendant also alleged that it had complied with all the terms of ordinance No. 11,604; and, further, that during the time set forth in the petition all its property within the city of St. Louis was assessed in pursuance of law for the purpose of taxation by the state and city, and that it had paid all taxes levied thereon; and, still further, that the ordinance set forth imposed upon defendant a burden and tax additional to the taxes regularly assessed upon the property of defendant, without any corresponding or special advantage to the defendant; and that, in so far as it attempted to exact five dollars per annum for each pole, it was unreasonable, unjust, oppressive, and void. The case was tried by the court without a jury, and on June 17, 1889, a judgment was entered in favor of the defendant, the court holding that the burden imposed was a tax, and imposed in such form that it could only be regarded as a privilege or license tax, which the city had no authority to impose. 39 Fed. Rep. 59. To reverse such judgment, the city sued out a writ of error from this court.

W. C. Marshall, for plaintiff in error.

Eleneious Smith, John F. Dillon, and Rush Taggart, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. 

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