WEBSTER v. BELL, 68 F. 183

SIMONTON, Circuit Judge (after stating the facts). Is this ordinance of the city of Alexandria a regulation of and a tax upon commerce between the states? There can be no question that a state, and municipal corporations within a state, acting under state authority, can impose a license upon all business conducted by common carriers within a state. W. U. Tel. Co. v. Texas, 105 U. S. 460; W. U. Tel. Co. v. Alabama State Board of Assessment, 132 U. S. 472, 10 Sup. Ct. 161; Postal Tel. Cable Co. v. City Council of Charleston, 153 U. S. 692, 14 Sup. Ct. 1094.

But in the imposition of such tax the interstate business must be discriminated from the infra state business, or it must be made capable of such discrimination, so that it may clearly appear that the infra state business alone is taxed. Ratterman v. Telegraph Co., 127 U. S. 411, 8 Sup. Ct. 1127; State Freight Tax Cases, 15 Wall. 232; Express Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 250. Does the ordinance in question make such discrimination, or can such a discrimination be made under its terms?

The tax is on every express company having an office in the city of Alexandria, and receiving goods, etc., and forwarding them to points within the state of Virginia. Receiving them from what points? Evidently from any quarter within or without the state, for the next sentence is “or receiving goods, wares and merchandise within the state of Virginia, and delivering them in the city of Alexandria.” This is a description of the business taxed. It includes all the business of the express company, and on that business* imposes a tax of $150.

The tax is not confined to such business as it does within the state of Virginia, nor is any distinction made between the business done within the state and that done without the state. If the express company does any business within the state of Virginia, and has an office in Alexandria, and thus within reach of the taxing power, it is made to pay on the whole business of receiving and forwarding, from whatever points, the tax of $150. The distinction here drawn is illustrated in the case of Express Co. v. Seibert, supra. That case discussed the question whether

an act of the state of Missouri taxing express companies was in conflict with the interstate commerce law: “The act, after defining in its first

section what shall constitute an express company, or what shall be deemed to be such in the sense of the act requiring such express company to file with the state auditor an annual report ‘showing the eniii-e receipts for business done within the state of each agent of such company doing- business in this state,’ etc., further provides that the amount which any express company pays ‘to the railroads or steamboats within this state for the transportation of their freight within this state’ may bo deducted from the gross receipts of.the company on such business, and the act also requires the company making the statement of its receipts to include as such all sums earned or charged ‘for the business done within this state,' etc.

It is manifest that these provisions of the statute, so far from imposing a tax on receipts derived from the transportation of goods between other sta tes and Missouri, expressly limit the tax to receipts for sums earned and charged for business done within the state. This positive and oft-repeated limitation to business done within the state — that is, business begun and ended within the state — is evidently intended to exclude, and the language employed does exclude, the idea that the tax is to bo imposed on the interstate business of the company.” The language used in the ordinance discussed in Postal Tel.

Cable Co. v.

City Council of Charleston, supra, is equally clear in its discrimination: ‘Telegraph companies or agents each for business done exclusively within the city of Charleston, and not including any business done to or from points without the state, and not including any business done for tho government of the United States, its officers and agents, S500.” The ordinance of the city of Alexandria makes no discrimination whatever between business done without and within the state; but, imposing a tax on the company if it has an office in that city, and if some of its business is between points in the state of Virginia, is repugnant to the interstate commerce law, and is void.

The decree of the circuit court is affirmed, with costs.