Postal Telegraph-Cable Co. v. Mayor

Lumpkin, J. (After stating the foregoing facts.) An ordinance passed by the municipal authorities of Cordele, which laid a tax of $100 on each telegraph company doing business in, the city, covering both the interstate and the intrastate business of 'a company which had accepted and was acting under the act of Congress of July 24, 1866 (Rev. Stat. U. S. §§ 5263-5268), was held invalid. Postal Telegraph-Gable Co. v. Mayor and Council of Cordele, 139 Ga. 126 (76 S. E. 744, 31 Ann. Cas. (1914A) 984). Having held that the ordinance was invalid for the reason that it interfered with interstate business of the company, it was not deemed necessary to go further and decide whether it was also unreasonable. After this decision was rendered, the municipal council passed an ordinance similar to that then under consideration, [664] except that the tax was declared to be laid on business not including interstate business or that done for the government of the United States, its officers or agents. The tax was fixed at the same amount ($100) as when interstate business was induded. The subject of taxation was lessened, but not the amount of the tax. The questions of the Court of Appeals refer to the entire record, and from the record it appears that there were no disputed questions of fact. The judgment of the superior court states that the only ground in the petition for certiorari' insisted upon was that the ordinance imposing an occupation tax of $100 on each telegraph company doing an intrastate business in Cordele (exclusive of interstate business) was “excessive, unreasonable, • and confiscatory so far as the petitioner is concerned, and is therefore void.” We will confine ourselves, therefore, to that ground; and we consider it unnecessary to mention the other expressions employed in the question of the Court of Appeals. 1. It is conceded that the tax under consideration is purely for the purpose of raising revenue. Home Insurance Company v. City Council of Augusta, 93 U. S. 116 (23 L. ed. 825). Accordingly it is unnecessary to discuss cases of taxes on the basis of poles, where the police power of protection against' danger, by means of inspection, was involved. Nor is it necessary to attempt to lay down any precise limitation upon the power of municipalities to levy an occupation or license tax for revenue. Bach ease can better be dealt with on its own facts. It is sufficient for the present purpose to declare (what is already well settled) that such a tax must not be so unreasonable as to be confiscatory, or an arbitrary and unlawful interference with private business, and to determine whether the tax under consideration is subject to that objection. It was agreed that the charge for intrastate telegrams is limited by a rule of the State railroad commission; that another rule requires telegraph companies operating their offices for interstate business to likewise receive and transmit intrastate messages; and that still another prohibits a telegraph company from discontinuing an office in this State without first obtaining the consent of the commission. It is thus not purely a matter of option whether the company thinks it desirable to continue business in a given place or to withdraw at will; nor can it increase its intrastate rates at pleasure, if it considers this municipal tax burdensome. This company has [665] paid its ad valorem tax on its property in this State, and in the ■distribution thereof $2.59 has been received by the City of Cordele, being in proportion to the valne of its property in that city ($182). In 1911 the gross receipts of the company at its Cordele office ■amounted to $1,303.44, of which $478.12 was from intrastate business. The gross expenses amounted to $1,359.80, of which $499.05 was properly apportionable to intrastate business. So that for the year 1911 intrastate business at that office was conducted at a loss. In 1912 the gross receipts amounted to $1,148.87, less $19.63 bad •debts, of which $533.83 arose from intrastate business. The total ■expenses of the office were $1,136.12, which should be apportioned between the interstate and the intrastate business. Thus for that year receipts and expenses applicable “to intrastate business were about equal. This does not take into consideration any interest •on the investment in Cordele. Its sole competitor only made about $700 above expenses from'intrastate business at that office during each of the years 1911 and 1912. The evidence shows that the difference in earnings by the two companies was not due to negligence or other like cause affecting the Postal Company, but to certain advantages on the part of the other company arising from contracts with railroads, etc. Other facts shown and bearing on the general situation will appear from the statement of facts. We recognize the rule that municipal councils have large discretion in regard to what is a reasonable occupation tax, and that their determination will not be declared unreasonable by the courts unless it is clearly so. They are not obliged in each case to make .an occupation tax a graded one, though they may make reasonable •classifications, resting on some legitimate basis. It is not necessary to measure a business tax according to the receipts of the smallest among a number of dealers engaged in that kind of business; but the particular business within the municipality as a whole should be considered, and the conditions affecting it. Mayor and Aidermen of Savannah v. Cooper, 131 Ga. 670, 676 (63 S. E. 138). The statement in the headnote case of Southern Express Company v. Ty Ty, 141 Ga. 421 (81 S. E. 114), seems to go further than we meed go in this ease, and does not discuss the conditions to be considered in declaring a municipal tax unreasonable and void. In City of Troy v. Western Union Telegraph Co., 164 Ala. 482 (51 So. 523, 27 L. R. A. (N. S.) 627), it was held that a license tax of [666] $100 for revenue, exacted by a municipal corporation from a telephone company doing an intrastate business therein, was not shown to be unreasonable and void as to a particular company merely because that branch of its business was conducted at a loss for the year for which the tax was levied. A similar ruling was made in Williams v. City of Talledega, 164 Ala. 633 (51 So. 330), decided on the same day. In each of these cases the limitation on the municipal power to impose a license tax was recognized, but it was held that the fact mentioned was not alone sufficient to show an abuse of the power or of the discretion of the municipal council in its exercise. Similarly see Atlantic Postal Telegraph-Cable Co. v. Mayor and Aldermen of Savannah, 136 Ga. 657 (71 S. E. 1115). The present case does not rest on'that fact alone, but upon that and others. After a careful review of the entire facts, including the nature, character, and extent of the business at that place and the conditions affecting it, as they appear in the record, we think that it clearly appears that the tax of $100 was excessive, unreasonable, and confiscatory, and therefore invalid. 2. From what is said above, it will appear that the present case falls within the ruling in Atlantic Postal Telegraph-Cable Co. v. Mayor and Aldermen of Savannah, 133 Ga. 66 (65 S. E. 184), when that case was considered on facts alleged in the petition and admitted by demurrer, rather than within the ruling in the same case when it again came before this eourt after a trial wherein the plaintiff failed to prove the facts as alleged, except that it operated at a loss its office in the city imposing the tax. 136 Ga. (supra). All the Justices concur.