And then taking as the total number of said line or lines

And as the number thereof in said Common

wealth.

$47,500,000 00

8,786,076 00

$38,713,924 00

146,052.60

2,833.05,

of

without regard to the question whether any thereof were or were not on post roads, declared such by law, or navigable streams or waters of the United States, considered that the valuation of the corporate franchise of said defendant subject to be taxed in said Commonwealth at said rate was 2,833.05 said $38,713,924, or in all ($750,952) seven hundred and fifty thousand nine hundred and fifty-two dollars, and assessed a tax thereon of ($10,618.46) ten thousand six hundred and eighteen and dollars to said company.

140,052.60

"That in fact more than 2334.55 miles of said line within said Commonwealth, part of said 2833.05 miles, were on, over, under, or across said post roads that is to say, railroads or highways made by law such post roads—or such streams or

waters.

"That before and during said year and since said defendant has continually transmitted over said lines on said post roads, streams, or waters between the several departments of the United States government and their officers and agents or as provided by § 221 of the Revised Statutes of the United States, at rates fixed by the Postmaster-General, as required by said act of Congress or title LXV of said section, telegraphic communications and messages for the government of the United States, including those for the signal service relating to the weather, storms, etc., and also commercial and business messages for purposes of foreign and interstate commerce from and to, into, through, and over and between said State of Massachusetts and all the other States and Territories of the United States, the city of Washington and the District of Columbia, and to and from foreign countries by ocean sub

Statement of the Case.

marine cables both for said government and for many private individuals and corporations resident and located as well out of as in said State.

"That it is impossible for said company to determine what portion of any sums received by it was received for services performed in said State in the transmission through the same or any part thereof of messages or communications received or delivered out of it or not on lines over said post roads, streams, or waters, but that the largest part, or approximately seventy per cent, of said sums was for messages received or delivered out of said State.

"That said defendant, on said first day of May, 1885, owned a large amount of real estate located and subject to local taxation out of said State of Massachusetts, on which there was assessed and paid by it a large amount (over $48,000) of taxes, besides other taxes.

"That the amount or value of said real estate was not clearly shown, but it was shown that the cost of land and buildings thereon owned by the defendant and of buildings so owned on land not so owned out of said State was over $3,000,000; and it was agreed by the said parties that if it appeared and became material upon any final decision in this case to fix the amount or value of said real estate, or the taxes thereon, or the amount received for any class of messages, and it was not agreed upon by them, the same should be determined on further hearing by the examiner.

"That no deduction or allowance was made in assessing said tax or in ascertaining the valuation of said franchise for taxation as aforesaid on account of said real estate, land, or buildings, or the taxes paid thereon, or for anything not above specifically stated.

"That notice was duly given to said defendant of said tax, and demand made therefor as required by said chapter, but said defendant protested against said assessment and tax and declined to pay the same; whereupon this information was filed."

The cause was heard on these pleadings and upon the report of the Examiner, and the court on the 28th November, 1887, made a final decree therein:

Argument for Plaintiff in Error.

"That the facts set forth in the examiner's report filed in this cause are true.

"That on those facts the method of valuation, assessment, and taxation provided by the laws of Massachusetts upon the franchise of the defendant corporation is not, as was claimed and contended by said defendant, illegal and unconstitutional under the constitution and laws either of the State of Massachusetts or the United States-that is to say, either under the Constitution of the United States, Article I, section 8; Article III, section 2; Article VI; Amendments V and XIV; Revised Statutes of the United States, sections 5263, 5264, 5265, 5266, 5267, 5268, 5269, including a revision and consolidation of the act of July 24, 1866, chapter 230, accepted by the defendant before the revision of section 221; or under the constitution of said State, part I, art. X; part II, chapter I, section IV; or chapter 13 of its Public Statutes, but was and is in conformity with and authorized by said constitutions and laws, and that therefore the sum claimed by the plaintiff to be due for taxes, to wit, $10,618.46, be paid to said State by said corporation, with interest thereon, and that an injunction shall be issued out of and under the seal of this court, directed to said corporation and its officers, agents, and servants, commanding them and each of them absolutely to desist and refrain from the further prosecution of the business of said corporation until said sums due to the said Commonwealth as aforesaid for taxes as aforesaid shall have been fully paid, with interest and costs, unless the said sum is paid by said defendant as aforesaid within thirty days from the entry hereof." From this decree the defendant appealed.

Mr. George S. Hale, (with whom were Mr. Charles W. Wells and Mr. Willard Brown on the brief).

I. Telegraph companies, which have accepted the act of Congress, are, as to government business, government agencies, and so far as a state tax on a company is on, or affects, the means employed by the government of the United States to exercise its constitutional powers, it is void. Western Union

Citations for Defendant in Error.

Telegraph Co. v. Texas, 105 U. S. 460; Osborn v. Bank of the United States, 9 Wheat. 738; Union Pacific Railroad v. Peniston, 18 Wall. 5; McCulloch v. Maryland, 4 Wheat. 316; Bank of Commerce v. New York, 2 Black, 620; Weston v. Charleston, 2 Pet. 449; Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1; Mayor v. Charlton, 36 Georgia, 460; Wabash &c. Railway Co. v. Illinois, 118 U. S. 557; Fargo v. Michigan, 121 U. S. 230; Pickard v. Pullman Southern Car Co., 117 U. S. 34; Manufacturers' Ins. Co. v. Loud, 99 Mass. 146; Hamilton Manufacturing Co. v. Massachusetts, 6 Wall. 632; Provident Institution v. Massachusetts, 6 Wall. 611; Portland Bank v. Apthorp, 12 Mass. 252; Commonwealth v. People's Five Cent Savings Bank, 5 Allen, 428; Bank of Augusta v. Earle, 13 Pet. 519; Attorney General v. Bay State Mining Co., 99 Mass. 148; Gleason v. McKay, 134 Mass. 419; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326; People v. Weaver, 100 U. S. 539; Robbins v. Shelby County Taxing District, 120 U. S. 489.

II. The omission to deduct from the total valuation the real estate located and subject to local taxation in other States, renders the tax excessive and invalid. The Delaware Railroad Tax, 18 Wall. 206; Santa Clara County v. Southern Pacific Railroad, 118 U. S. 394; Libby v. Burnham, 15 Mass. 144; Stetson v. Kempton 13 Mass. 272.

Mr. Andrew J. Waterman, Attorney General of the Commonwealth of Massachusetts, and Mr. Henry C. Bliss, Assistant Attorney General of that State, cited: Portland Bank v. Apthorp, 12 Mass. 252; Commonwealth v. Savings Bank, 5 Allen, 428; Commonwealth v. Hamilton Manuf. Co., 12 Allen, 298, 305, 309; Queen v. Arnaud, 9 Q. B. 806, 817; Utica v. Churchill, 33 N. Y. 161, 237; Van Allen v. Assessors, 3 Wall. 573; Attorney General v. Bay State Mining Co., 99 Mass. 148; Bank of Commerce v. New York, 2 Black, 620, 630; Delaware Railroad Tax Case, 18 Wall. 206, 225; State Tax on Railway Gross Receipts, 15 Wall. 284, 293; Wabash &c. Railroad v. Illinois, 118 U. S. 557, 594; Sherlock

Opinion of the Court.

v. Alling, 93 U. S. 99; Munn v. Illinois, 94 U. S. 113; Chicago, Burlington &c. Railroad v. Iowa, 94 U. S. 155; Paul v. Virginia, 8 Wall. 168; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 209; Railroad Co. v. Peniston, 18 Wall. 5, 34; Commonwealth v. Lancaster Savings Bank, 123 Mass. 493, 495; Woodruff v. Parham, 8 Wall. 123; Manufacturers' Ins. Co. v. Loud, 99 Mass. 146; Oliver v. Washington Mills, 11 Allen, 268, 279; Hamilton Co. v. Massachusetts, 6 Wall. 632, 639; Dickey v. Turnpike Road Co., 7 Dana, 113; Thomson v. Pacific Railroad Company, 9 Wall. 579, 590; Fargo v. Michigan, 121 U. S. 230; Cooley v. Philadelphia, 12 How. 299; Ex parte McNeil, 13 Wall. 236; Osborne v. Mobile, 16 Wall. 479, 481; McCulloch v. Maryland, 4 Wheat. 316, 429; Dwight v. Boston, 12 Allen, 316; S. C. 90 Am. Dec. 149; Railroad Company v. Fuller, 17 Wall. 560, 568.

MR. JUSTICE MILLER delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the District of Massachusetts.

The action was commenced in the Supreme Judicial Court of Massachusetts, sitting in equity, by an information on behalf of the Commonwealth, by its Attorney General, at the relation of the treasurer thereof, Alanson W. Beard. It was afterwards removed, upon motion of the defendant, the Western Union Telegraph Company, into the Circuit Court of the United States. The object of the information was to enforce the collection of a tax levied by the proper authorities of the State upon the telegraph company, and to enjoin it from the further operation of its telegraph lines within the territorial limits of the Commonwealth until that tax was paid.

The defendant company is a corporation organized under the laws of the State of New York, having its capital stock divided into shares. The tax assessed by the treasurer of the Commonwealth of Massachusetts was based upon an estimate of $750,952 as the taxable value of the shares of the corporation apportioned to that State, the rate of taxation having

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