Southern Bell Telephone & Telegraph Co. v. D'Alemberte

Caiitek, J.: The questions involved in this case depend upon the-proper construction of the sixteenth subdivision of section 9, chapter 4010, acts of 1891, entitled “An act for the assessment and collection of revenue,” reading* as follows: “Electric light, water works, gas light and telephone companies shall each pay, on every plan^ to the tax collector of each county where such plant is located and operated, a license tax of one hundred dollars; Provided, Telephone lines of less than twenty-five miles in length shall pay a license tax of twenty-five dollars.” It is not denied by plaintiff that its line is more than twenty-five miles in length, if this length is to be estimated at the sum of the length of its wires in use by all of its subscribers; but it contends that its line is to be estimated at the sum of the distances covered by the poles supporting its wires, because in the “telephone business” the word “line” means “a line of poles and the wires suspended thereon, without regard to the number of those wires,” and the declaration alleges that this meaning is “clearly defined, well known, established and definite.” It will be observed that the words “telephone lines” occur only in the proviso of that portion of the statute now under consideration, and therefore constitute an exception to the general words “telephone companies” or “plant,” contained in the enacting clause. The office of a proviso is to restrain the enacting clause; to except something which would [37] otherwise be within it, or in some manner to modify it, and where it follows and restricts an enacting-clause general in its scope and language it is to be construed strictly and limited to objects fairly within its terms. United States vs. Dickson, 15 Peters, 141; McRae vs. Holcomb, 46 Ark. 306; Bragg vs. Clark, 50 Ala. 363; Epps vs. Epps, 17 Ill. App. 196; State ex rel. McQuaid vs. Commissioners of Duval County, 23 Fla. 483, 3 South. Rep. 193. Rearing in mind these elementary rules of construction, we have no hesitancy in holding that upon the allegations of plaintiff's declaration its telephone plant was subject to the license tax imposed by the enacting clause of the statute quoted; and that as to its plant the exception created by the proviso did not apply. The purpose of the statute was to require a license tax of $100 from every telephone company operating a plant in the State, except plants having a line of less than twenty-five miles in length, which were to be taxed $25 only. The proviso was inserted in the statutes for the benefit of ■companies owning small plants, from the operation of which the profits derived would not justify the payment of so large a license as $100. A line is defined by Webster’s International Dictionary as “a wire connecting one telegraphic station with another, or the whole of a system of telegraph wires under one management and name;” and by the Century Dictionary as “a telegraph wire between stations, forming with them the circuit.” A plant is defined by the Century Dictionary as “the fixtures, machinery, tools, apparatus, appliances, etc., necessary' to carry on any trade or mechanical business, or any mechanical operation or process.” The plaintiff admits that its wires ran from the central office to each [38] individual subscribe!’, a separate wire and instrument for each subscriber, and that by means of a call wire-in .the central office the wires leading to any two subscribers could be connected together, and it is not denied by the declaration that if the word line was used by the Legislature in its popular sense, the plaintiff’s line would exceed twenty five miles in length. We-think the Legislature used the word in its popular-sense, and not technically as defined in the declaration. If we adopt such technical meaning, we have the unfair result of taxing a telephone plant $25 only which owns many lines of posts a few miles long, supporting-independent wires connected at the central office only, and supplying perhaps several hundred subscriber in a populous community, while another plant in a less populous community, owning a few lines of posts several miles in length, supplying perhaps a tenth as-many subscribers, is required to pay a license tax of $100. The Legislature could have intended no such result. A line though supported by posts supporting-other lines is none the less a line. If the length of two lines running parallel within a few feet of each other, supported by separate posts, supplying separate-customers on the same street are to be added in estimating the length of telephone lines, as is not denied by the plaintiff, we are unable to see why a different rule should prevail where the same conditions exist except that the same posts are used to support both-lines. Ey giving to the statute the construction we adopt, we are carrying out the intention of the Legislature to reduce the license tax to be paid - by companies deriving small profit from their investment, while-by adopting the construction contended for by plaintiff, this intention would not only be disregarded, but39 entirely frustrated. While it is true, as a general rule, that popular words are to be construed in the popular sense, and technical words in a technical sense, when used in a statute, yet when a word has both a popular and a technical meaning, the court will give it effect according to the popular signification if it was so used by the Legislatui’e, and the context may be referred to in ascertaining the, sense in which it was used. Green vs. Weller, 32 Miss. 650; Cummings vs. Coleman, 7 Rich. Eq. 509, S. C. 62 Am. Dec. 402; People vs. Tighe, 5 Hun. 25; State ex rel. Owens, vs. Barnes, 24 Fla. 153, 4 South. Rep. 560. The plaintiff also contends that the seizure of its property by the collector under subdivision 16 of section 9 of the act referred to, for failure of the plaintiff to pay the license tax of $100 demanded by defendant, was “an arrogation of judicial power.” and constituted the taking of plaintiff’s property without due process of law; and that plaintiff was entitled to recover upon that theory. As to this contention it is sufficient to say that the declaration does not claim damages for any illegal act of the defendant or trespass committed by him against the plaintiff’s property. It specifically seeks to recover only .the difference between the amount of money paid by plaintiff to defendant and the 1 Icense tax legally due for a telephone line of less than twenty-five miles in length, because, as it alleges, this difference was not justly chargeable to plaintiff, and was paid by it under protest. We find no error in the record, and, therefore, the judgment of the court below is affirmed.