Argument for Ratterman. Ohio St. 521, was to impose a charge upon foreign telegraph companies for the privilege of exercising their franchises and powers within the State, graduated according to the amount of receipts. The execution of that intention is now found to be impossible. The legislature cannot prevent these companies from exercising their powers and franchises with respect to the great bulk of their business. Can the court discover, nevertheless, an intent to charge them for the privilege of doing business wholly within the State based upon the amount of their receipts from such business. Did not the legislature intend the law as a whole? Had it been advised that it could not tax the Western Union Telegraph Company for the privilege of coming into Ohio to do interstate commerce, nor with respect to that commerce, would it have passed the law at all? Would it have laid a tax which, being confined to Ohio messages, must in the nature of things, be borne ultimately by the merchants of Ohio? Had it known that its power was confined to taxing the receipts of the company from internal business, would it not have increased the rate? These are only a few of the questions which embarrass us in an attempt to give effect to the statute by upholding it, notwithstanding its unconstitutional provisions, as a law authorizing and directing a tax against foreign telegraph companies upon their receipts from internal commerce. It may be that the legislature of Ohio has authority to pass a law taxing such receipts, but it will be time enough for the courts to enforce such a law when warranted thereunto by some clear declaration of legislative intent. It is not for the courts to enact or amend laws. Mr. Thomas McDougall and Mr. David K. Watson, Attorney General of the State of Ohio, for Ratterman. Mr. William A. Davidson, County Solicitor for Hamilton County, Ohio, was with them on the brief. To the point that the receipts were separable, and that the court might apportion them, they said: The certificate of division of opinion in this case presents this question. Take it for granted, for the purposes of argu Argument for Ratterman. ment, that the tax on the receipts from interstate commerce business is unconstitutional, does that vitiate the whole act so as to authorize the court to enjoin the collection of the tax assessed on the receipts for business done wholly within the State, as well as the receipts for business done without the State? It must be admitted that the legislature of Ohio intended to tax the business done wholly within the State. Its authority to tax the receipts from that business cannot be questioned in this court; but has been expressly upheld in numerous cases. Does the fact that the tax is levied, or, if you please, intended to be levied, upon that which it had no power to levy it on, destroy its right to collect a tax from that which it had the right to tax? This court has held that the law may be valid as to one class of receipts, and invalid as to another. In the Philadelphia Steamship Co. v. Pennsylvania, 122 U. S., on page 339, the court say: "The court, in its opinion, took notice of the fact that the law was general in its terms, making no distinction between freight transported wholly within the State and that which was destined to or came from another State. But it was held that this made no difference. The law might be valid as to one class, and unconstitutional as to the other." In the case of Fargo v. Michigan, 121 U. S., the court, speaking of the same law, (on page 241,) say: "The Supreme Court of the State of Pennsylvania decided that all the freight carried, without regard to its destination, was liable to the tax imposed by the statute. This court, however, held that freight carried entirely through the State from without, and the other class of freight brought into the State from without, or carried from within to points without, all came under the description of 'commerce among the States,' within the meaning of the Constitution of the United States; and it held also, that freight transported from and to points exclusively within the limits of the State was internal commerce, and not commerce among the States. The taxing law of the State was, therefore, valid as to the latter class of transportation, but with regard to the others it was invalid, Argument for Ratterman. because it was interstate commerce, and the State could lay no tax upon it." In the case of the Telegraph Co. v. Texas, 105 U. S., on page 465, the court say: "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 the 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 government 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 decided in M'Culloch v. 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." In that case a judgment was rendered by the state court against the telegraph company for the tax on the messages within the State, and for the messages which were wholly interstate commerce. And this court held that, so far as the judgment included the tax on messages sent out of the State, or for the government, it was erroneous, and reversed the judgment, and remanded the case for proceedings in accordance with the opinion. In the case at bar the court's attention is called to what constituted the sum of $5206.90, which was the amount of the tax sought to be enjoined by the bill of the telegraph company. A part of that sum consisted of Argument for Ratterman. the tax levied on the personal property, the wires, batteries and poles of the company within the county of Hamilton. The remainder of the tax was what was assessed, as we claim, on the moneys received from the business, and treated as other personal property for taxation. There was no practical difficulty in the way of separation. There was no such intermingling of the receipts as made it impossible to separate the one class from the other. They were in fact separated by the court below. And yet it is claimed, though the separation is practicable, and has been made by the court below, though the amount can be ascertained to a cent of what was received from each class of business, yet the telegraph company has a right to perpetually enjoin, and thereby be released from the tax on the whole gross receipts, notwithstanding the admitted fact that the State may tax the gross receipts for the business done within the State. We know of no rule of construction of a statute that authorizes the holding of the whole tax invalid, because it was levied on property a part of which it is claimed the State had no right to tax. It will be remembered by this court that the tax laid on railway gross receipts, held to be valid in 15 Wall. included the receipts of both classes, and that in that case, as in the case of Fargo v. Michigan, 121 U. S., the receipts were separated, although the law in one of the cases was general in its terms, as in the case at bar. The rule applicable to the granting of relief by way of injunction, which was what was sought in the case at bar, is to be found in the case of Frazer v. Seibern, 16 Ohio St. 614. In that case, on page 624, the court say, after finding that the act itself, to the extent that it taxed banks in excess of the taxation levied on the state banks, was unconstitutional: "It by no means follows, however, that the plaintiffs are entitled to an unconditional injunction against the collection of the tax. They ask equity, and must do equity. They invoke the exercise of an extraordinary power of the court for their relief, and the court, in its discretion, should refuse that relief, except upon conditions that are equitable and just. We think, therefore, that the injunction should only be granted upon the condition that the plaintiffs, or their bank, shall first pay Opinion of the Court. to the treasurer of Hamilton County a sum that will be a pro rata equivalent for the tax imposed upon the State and independent banks under the act of 1861; that is to say, such sum as might lawfully have been assessed upon the plaintiffs, or their bank, under said act, had it been one of said state banks. If the parties cannot agree upon this sum, proceedings can be adopted to ascertain it by the court; and, if found necessary, the bank itself can be made a party." We submit, therefore, that should this court hold the law. of the State of Ohio unconstitutional, it can only do so to the extent that it taxes the moneys received from the interstate commerce business of the Western Union Telegraph Company. MR. JUSTICE MILLER, after stating the case, delivered the opinion of the court. The case has been fully argued before us upon all the matters properly presented by the record, and it seems probable from the amicable nature of the proceedings and the agreement as to a statement of facts upon which the case was to be tried, without any answer being filed to the bill, that the purpose was to obtain the judgment of this court upon the general subject of the liability of the corporation to taxation upon the amount of its receipts, and that the certificate of a difference of opinion has been used for that purpose. With regard to the question which is certified to us as dividing the opinions of the judges of the Circuit Court, we do not think that there is any difficulty, and can hardly see how it arose in the present case. That question is "whether a single tax, assessed under the Revised Statutes of Ohio, § 2778, upon the receipts of a telegraph company, which receipts were derived partly from interstate commerce and partly from commerce within the State, but which were returned and assessed in gross and without separation or apportionment, is wholly invalid, or invalid only in the proportion and to the extent that said receipts were derived from interstate commerce." We do not think this particular question is material in |