
    SUPREME COURT OF THE UNITED STATES.
    No. 902.
    October Term, 1881.
    The Western Union Telegraph Company, Plaintiff in Error, vs. The State of Texas.
    In error to the Supreme Court of the State of Texas.
    
      State Taxation of Telegraph Companies — Exemptions— Such companies, as the Western Union Telegraph company, as to governprént busntessjoecome government agencies, and are bound to give the-Ujnited States precedence in the use of their lines for public business'at rates to gress it occupies in T tion of an instrument for foreign and interstate commerce, and of a governtpepUagent for the transmission of messages on public business, and itsjrfbpferty in the State is subject to taxation the same as other property, and may "6h taxed in a proper way on account of its occupation ancjüís business. States precfed^rme in the use of their lines for public business'at rates to be fixed by thepostnpaster general. And when the comphhy has accepted the restrictions and ol the provisions relating thereto by Con-
    The amount of taxes torpe paid is determined solely by the class of messages to which it belongs. If it is full rate the tax is one cent., ancHfi less-than foil rate cind-half cent, but on private messages sent out of the State* it is a regulation of foreign and inter-state commerce. and beyond thepowep'óf the State to tax it.
    Jno. P. Dillon and Wager Swayne for plaintiff in error.
    P. Phillips, J. H. McLeary, attorney general, and W. Hallett Phillips for defendant in error.
   Mr. Chief Justice Waite

delivered the opinion of the court.

The Western Union Telegraph Company is a Hew York corporation engaged in the business of transmitting telegrams at fixed rates of compensation. Its lines extend into and through most of the territories of the United States, and to Washington, in the District of Columbia. It has availed itself of the privileges and subjected itself to the obligations of title lxv of the Revised Statues relating to telegraph companies, and its lines connect with those owned and established by the government of the United States for public purposes. It has one hundred and twenty-five offices in the State of Texas, and is in close communication with other telegraph companies doing business in this country and abroad.

By the constitution of Texas, article vm, section 1, the legislature is authorized to “impose occupation taxes, both upon natural persons and upon corporations, other, than municipal, doing business in the State;” and by article 4655 of the Revised States, enacted under this provision of the constitution, every chartered telegraph company doing business in the State is required to pay a tax of one cent for every full rate message sent, and one-half that for every message less than full rate. Taxes must be paid quarterly to the comptroller of the State on sworn statements made by an officer of the company. In addition to this, on the real and personal property of the company in the State.

Between October 1,1879, and July 1, 1880, the company sent over its lines from its offices in Texas 169,076 full rate, and 100,408 less than full rate, messages. A large portion of these messages were sent to places outside of the State? and by the officers of the government of the United States on public business. The company neglected to pay the tax imposed, and a suit was brought in one of the courts of the State for its recovery. In defence it was insisted that the law imposing the tax was in conflict with the constitution and and laws of the United States, and, therefore, void. The Supreme Court of the State, on appeal, sustained the law, and directed a judgment against the company for the full amount claimed, allowing no deductions for messages sent out oí the •State, or by government officers on government business. To reverse that judgment this writ of error has been brought.

In Pensacola Tel. Co. vs. Western Union Tel. Co., 96 U. S. 1, this court held that the telegraph was an instrument of commerce, and that telegraph companies were subject to the regulating power of Congress in respect to their foreign and interstate business. A telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself. They do their transportation in different ways, and their liabilities are in some respects different, but they are both indispensable to those engaged to any considerable extent in commercial pursuits.

Congress, to facilitate the erection of telegraph lines, has by-statute authorized the use of the public domain and the military and post roads, and the crossing of the navigable streams and waters of the United States for that purpose. As a return for this privilege those who avail themselves of it are bound to give the United States precedence in the use of their lines for public business at rates to be fixed by the postmaster general. Thus, as to government business, companies of this class become government agencies.

The Western Union Company having accepted the restrictions and obligations of this provision by Congress, occupies in Texas the position of an instrument of foreign and interstate commerce, and of a government agent for the transmission of messages on public business. Its property in the State is subject to taxation the same as other property, and it may undoubtedly be taxed in a proper way on account of its occupation and its business. The precise question now presented is whether the power to tax its occupation can be exercised by placing a specific tax on each message sent out of the State, or sent by public officers on the business of the United States.

In The State Freight Tax Case, 15 Wall., 232, this court decided that a law of Pennsylvania requiring transportation companies doing business in that State to pay a fixed sum as a tax “on each two thousand pounds of freight carried," without regard to the distance moved or charge made, wa® unconstitutional, so far as it related to goods taken through the State, or from points without the State to points within, or from points within to points without, because to that extent it was a regulation of foreign and inter-state commerce. In this the court but applied the rule, announced in Brown vs. Maryland, 12 Wheat., 444, that where the burden of a tax falls on a thing which is the subject of taxation, the tax is to be considered as laid on the thing rather than on him who is charged with the duty of paying it into the treasury. In that case, it was said, a tax on the sale of an article, imported only for sale, was a tax on the article itself. To the same general effect are Welton vs. Missouri, 91 U. S., 275; Cook vs. Pennsylvania, 97 U. S., 566, and Webber vs. Virginia, 103 U. S., 344. And in The Passenger Cases, 7 How., 283; Crandall vs. Nevada, 6 Wall., 35, and Henderson vs. The Mayor, 92 U. S., 259, taxes upon passenger carriers of a specific amount for each passenger carried were held to be taxes on the passengers; and in The State Tonnage Cases, 12 Wall., 204; Peete vs. Morgan, 19 Wall., 581; Cannon vs. New Orleans, 20 Wall., 577, and Inman Steamship Co. vs. Tinker, 94 U. S., 238, that taxes on vessels according to measurement, without any"reference to value, were taxes on tonnage.

The present case, as it seems to us, comes within this principle. The tax is the same on every message sent, and because it is sent, without regard to the distance carried or the price charged. It is in no respect proportioned according to the business done. If the message is sent the tax must be paid, and the amount determined solely by the class to which it belongs. If it is full rate, the tax is one cent, and if less than full rate, one-half cent. Clearly if a fixed tax for every two thousand pounds of freight carried is a tax on the freight, or for every measured ton of a vessel, a tax on tonnage, or for every passenger carried a tax on the passenger, or for sale of goods a tax on the goods, this must be a tax on the messages. As such, so far as it operates on private messages sent out of the State, it is a regulation of foreign and interstate commerce and beyond the power of the State. That is fully established by the cases already cited. As to the gov-eminent messages, it is a tax by the State on the means employed by the government of the United States to execute its constitutional powers, and, therefore, void. It was so de cided in McCulloch vs. Maryland, 4 Wheat., 316, and has never been doubted since.

It follows that the judgment, so far as it includes the tax on messages sent out of the State, or for the government on public business, is erroneous. The rule that the regulation of commerce which is confined exclusively within the jurisdiction and territory of a State, and does not affect other nations or States or the Indian tribes, that is to say, the purely internal commerce of a State, belongs exclusively to the State, is as well settled as that the regulation of commerce which does affect other nations or States or the Indian tribes be’ongs to Congress. Any tax, therefore, which the State may put on messages sent by private parties, and not by agents of the government of the United States, from one place to another exclusively within its own jurisdiction, will not be repugnant to the Constitution of the United States. Whether the law of Texas, in its present form, can be used to enforce the collection of such a tax is a question entirely within the jurisdiction of the courts of the State and as to which we have no power of review.

The judgment of the Supreme Court of Texas is reversed, and the cause remanded with instructions to reverse the judgment of the district court and proceed thereafter as justice may require, but not inconsistent with this opinion.  