A proceeding for a mandamus is "a suit" within the meaning of
that term as employed in Rev.Stat. § 709.
A federal question, which was decided in the court below, is
involved in this suit.
The statute of June 13, 1848, c. 448, "to meet war expenditures,
and for other purposes," does not forbid an express company, upon
which is imposed the duty of paying a tax upon express matter, from
requiring the shipper to furnish the stamp or the means of paying
for it.
The Attorney General of the State of Michigan, on the relation
of George F. Moore and others, commenced proceedings in the Circuit
Court of Wayne County, Michigan, against the American Express
Company. The company was described as
"a joint stock association organized and existing under the laws
of the State of New York and having its principal business office
located in the City of New York, in said state."
It was averred that the company complied with the requirements
of certain statutes of the State of Michigan, and had obtained the
necessary certificate authorizing it to carry on an express
business in that state, and in order to conduct such business, had
a large number of agents and offices in the state. The petition
then alleged that, on June 13, 1898, the Congress of the United
States passed an act commonly designated as the "War Revenue Act,"
by which it was made the duty of express companies on receiving a
package for carriage to issue a receipt for such package, and
providing that the receipt thus issued should bear a one-cent
stamp. After referring to the text of the act of Congress on the
above subject, it was alleged that, by the provisions of the law in
question, the primary and absolute duty was imposed upon express
companies to provide the receipt, and to affix and cancel the
one-cent stamp as required by law. The following averments were
then made:
"That by reason of a desire of the respondent (the express
company) to avoid the payment of the stamp tax, so called, and to
impose such obligation on the shipper, the respondent
Page 177 U. S. 405
herein refuses to accept any goods for transportation unless
such shipper attaches the stamp to the said bill of lading,
manifest, or other evidence of receipt and forwarding for each
shipment, or furnishes the money or means for that purpose to the
said company, and that the said company thereby not only avoids its
duty under said act of Congress to pay and bear its proportion of
the revenues to meet war expenditures as provided by said act, but
violates its duty as a common carrier to receive, accept, and
deliver such goods, wares, and merchandise so offered and tendered
to it for that purpose."
A number of instances were specified where it was averred the
express company, on the tender to it of packages for transportation
as a common carrier, had refused to receive the same and to issue
receipts therefor "unless a stamp of the value of one cent was paid
or provided" by the shipper. It was charged that the conduct of the
express company was in violation of the obligations imposed upon it
by the act of Congress in question, and constituted a refusal to
perform its duty as a common carrier. The prayer was for a mandamus
commanding the company to receive packages for transportation by
express, and issue a receipt with stamp duly cancelled thereon,
without seeking to compel shippers who might tender packages for
carriage either to pay for the one-cent stamp or to provide the
means for so doing.
The answer of the express company admitted that it required
persons who tendered packages for carriage by express either to pay
or provide the means for defraying the cost of the one-cent stamp,
but denied that its conduct in so doing was a violation of the act
of Congress by which the one-cent tax on express receipts was
imposed. On the contrary, it was averred that the act of Congress,
when properly construed, although imposing the absolute duty to
issue a receipt for every package as therein provided, left the
question of who should pay for the stamp free for adjustment
between the shipper and the express company. By the act of
Congress, it was asserted, the express company had therefore the
right or privilege of insisting that those who offered packages to
be carried by express should either furnish the one-cent stamp or
provide the means of paying
Page 177 U. S. 406
for it. It was, moreover, alleged that the company had in effect
but increased its rates on each shipment by adding to the previous
rates the sum of the stamp tax. And it was averred that this
increase the company was not forbidden to make by the act of
Congress imposing the one-cent stamp tax, and that the rate as
increased by exacting that the one-cent stamp should be furnished
or that its value be paid for by the shipper was just and
reasonable, and was not in conflict with the act of Congress. The
answer was in effect demurred to as not stating a defense. The case
was submitted for decision on petition and answer. The court
ordered the mandamus to issue substantially as prayed for. The
cause was then removed by writ of certiorari to the Supreme Court
of the State of Michigan, where the judgment of the trial court was
affirmed. 118 Mich. 682. By an allowance of a writ of error, the
judgment of the supreme court of the state is before us for
review.
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
We will first dispose of the claim that this Court is without
jurisdiction to review the judgment, and that hence the writ of
error should be dismissed. The contention is based upon the
following: (1) that the proceeding below, being for a mandamus was
not a "suit" within the meaning of that term as employed in section
709 of the Revised Statutes, and (2) because no federal question is
involved, and no such question was below decided.
The first proposition is not tenable.
McPherson v.
Blacker, 146 U. S. 1,
146 U. S. 24;
Hartman v. Greenhow, 102 U. S. 672.
The second is likewise without merit. From the summary of the
pleadings just made in the statement of the case, it is apparent
that the issue between the parties involved an assertion, on the
one side, that the act of Congress imposed on the express company
the absolute duty of furnishing the receipt, of
Page 177 U. S. 407
affixing the stamp thereto, and cancelling the same. The
argument was that it was hence a violation of the duty, imposed
upon the express company by the act of Congress, for the company
either to demand the stamp or the amount thereof from the shipper,
and that it was also a violation of the act of Congress for the
express company to increase its rates to the extent necessary to
accomplish the result of securing the reimbursement of the amount
of the one-cent stamp tax. On the other hand, the defense of the
express company was that, under the act of Congress, it had the
right, privilege, or immunity (which it specially set up and
claimed) of demanding the payment of the one cent or of increasing
its rates to the extent that the tax imposed a burden upon it,
provided only the rates charged were just and reasonable. The
question thus presented was in substance the only one decided by
the supreme court of the state. In stating the issues arising for
its decision, the court said: "The main question in the case
relates to the construction to be placed upon the act in question"
-- that is, the act of Congress. After a review of the provisions
of the statute, it was decided that under it, the express company
could not, in any event or by any means, transfer the burden of the
tax in question. Considering the right of the express company to
increase its rates to the extent necessary to secure the payment of
the tax by the shipper, the court said:
"It is contended, however, that the company has the right to
make new regulations and establish new rates to meet all this
burden. It is contended that the effect of this is to throw the
burden upon the shipper. It is apparent upon the face of this
proceeding that the very purpose of this change in the regulations
and the increase of rates is to avoid the payment of the tax, and
thus cast upon the shipper the burden which the act of Congress
puts upon the company. This is but an evasion and a subterfuge to
avoid the terms of the act."
The foregoing reasoning was supplemented by comment upon the
fact that the increase of rate resulting from the charge of one
cent on each package was made without reference to the distance
each package was to be carried. We do not, however, understand the
remarks on this subject as implying that the
Page 177 U. S. 408
court below decided that the rate as increased by the one cent
was intrinsically unreasonable without regard to the provisions of
the act of Congress, but only that the rate as so increased was
unreasonable because an attempt on the part of the express company
to shift the burden of the tax imposed upon it by the act of
Congress, and hence was by legal inference forbidden by that act.
No other view is possible when the state of the record is
considered. As we have seen, the controversy was submitted on
petition and answer. It is nowhere, however, averred in the
petition that the rates, with or without the addition of the tax,
were intrinsically unjust and unreasonable, while in the answer,
following an averment as to the enactment of the stamp act and its
resulting effects, it was averred as follows:
"Respondent therefore decided to raise, and did raise, its rates
of transportation to an amount reasonable and just, and only
necessary to meet the change of conditions made by said act, and
save itself from great loss of revenue and profits as compared with
its earnings before the passage of said act."
"And respondent submits and asserts that it had the full and
perfect right to make such change in its method of transacting its
business and in its former rates for transportation."
As, therefore, upon the submission of the cause upon the
pleadings, there was no controversy as to the intrinsic
reasonableness of the increased rates, it follows that if we were
to hold that the court below had decided that the increased rates
were unreasonable in themselves, we would conclude that the court
below had so held, although it was substantially admitted on the
record by both parties that the increase of rates was just and
reasonable if not forbidden by the act of Congress. But such action
cannot be attributed consistently with reason and justice. This
being the state of the case, the federal question presented is
wholly unaffected by what was said by the court on the subject of
the right of the corporation to increase its charges by the amount
of the tax. As there was no allegation that the rates existing
prior to the imposition of the one-cent stamp tax were
unreasonable, it would follow that the rates which were otherwise
reasonable were decided not to be so solely because there was added
to the charge for each package
Page 177 U. S. 409
the exact amount of the increased cost for transporting the
package, occasioned as to each package, by the specific imposition
on each by the act of Congress of the one-cent stamp tax. But to
cause rates which were conceded to be reasonable to become
unreasonable because alone of such increased charge, the assumption
must be made that the act of Congress not only imposed the burden
of the tax solely on the express company, but also forbade its
shifting the same by any and every method. And no other view is, in
reason, possible when the averments of the answer are borne in
mind. It hence results that the federal question, although changed
in form of statement, remains in substance the same. In the changed
form, it is as follows: did the act of Congress deprive the express
company of the right to shift the burden of the tax by increasing
the rate by the exact amount distinctly and separately imposed by
the act upon each shipment, and hence render the charge
unreasonable, which would be, in itself, reasonable, except for the
hypothesis that the act of Congress renders all efforts to shift
the tax illegal.
It follows that the case as made by the pleadings, and which was
decided below, involved a right, privilege, or immunity under the
act of Congress, which was specially set up and claimed by the
express company, to contract with the shippers for the payment of
the tax provided by the act of Congress, or to increase its rate,
within the limit of reasonableness, to the extent of such tax,
which right, privilege, or immunity was denied and held to be
without merit by the court below. There is therefore jurisdiction.
Rev.Stat. § 709.
The controversy which is contained in the merits of the cause is
resolvable into three questions: First. Does the act of Congress
impose upon the express company the duty of making a receipt for a
package tendered to it, and does it also forbid the express company
from requiring the shipper to furnish the stamp to be affixed to
the receipt, or of supplying the means of paying for the same?
Second. If the act of Congress does impose such duty on the express
company, and does inhibit it from requiring that the shipper
furnish the stamp or the means of paying for it, does the act
further forbid the express company
Page 177 U. S. 410
from seeking to cast the burden on the shipper by an increase of
rates? Third. And, as a corollary of the second proposition, does
an increase of rate by an express company which is otherwise just
and reasonable become unlawful, under the act of Congress, because
such increase is made with the purpose of shifting the burden of
the one-cent tax from its own shoulders to that of the shipper?
The first proposition is unnecessary to be considered, since,
even although it be conceded that the act of Congress imposes on
the express company the duty of paying the one-cent stamp tax, this
admission would not be at all decisive of the cause unless also it
be ascertained under the second proposition, that the act of
Congress also forbids the express company from shifting the burden
of the tax by means of an increase of rates. And no necessity for
passing on the first proposition arises from the mere fact that the
decision of the second proposition requires a consideration of the
provisions of the statute which it would be necessary to take into
view if the first proposition was under consideration.
It is also to be observed that the second and third
propositions, which involve, the one the right to shift the burden
of the tax by exacting that the one cent be provided and the other
the power to increase rates within the limits of the requirement
that the charges as increased be reasonable, both depend upon the
same considerations.
Indeed, the question into which all the issues are ultimately
resolvable is whether the right exists to shift the burden -- of
course, ever circumscribed by the duty of not exceeding reasonable
rates. If it does not -- that is, upon the hypothesis that it not
only can be, but is, forbidden -- then it must result that all
methods adopted to attain the prohibited result are void. On the
contrary, if the right to seek to shift the burden obtains, then
the substantial result of what is done becomes the criterion, and
the mere fact that the motive, announced, for a reasonable increase
of rates, is declared to be a shifting of the burden cannot prevent
the exercise of the lawful right.
The special provisions of the law upon which the case turns are
the first paragraph of section 6 and the express and freight
Page 177 U. S. 411
clause of Schedule A, forming a part of section 25. 30 Stat.
451, 459.
The paragraph of section 6 referred to is as follows:
"SEC. 6. That on and after the first day of July, eighteen
hundred and ninety-eight, there shall be levied, collected, and
paid for and in respect of the several bonds, debentures, or
certificates of stock and of indebtedness, and other documents,
instruments, matters, and things mentioned and described in
Schedule A of this act, of for or in respect of the vellum,
parchment, or paper upon which such instruments, matters, or
things, or any of them, shall be written or printed by any person
or persons, or party who shall make, sign, or issue the same, or
for whose use or benefit the same shall be made, signed, or issued,
the several taxes or sums of money set down in figures against the
same, respectively, or otherwise specified or set forth in the said
schedule."
Now there is nothing in the provisions just quoted which, by the
widest conjecture, can be construed as expressly forbidding the
person upon which the taxes are cast from shifting the same by
contract or by any other lawful means. An inference to the contrary
arises from the fact that the duty is imposed in the alternative on
"any person or persons, or party, who shall make, sign, or issue
the same, or for whose use or benefit the same shall be made,
signed, or issued."
The language of the express and freight clause of Schedule A is
as follows:
"EXPRESS AND FREIGHT: It shall be the duty of every railroad or
steamboat company, carrier, express company, or corporation, or
person whose occupation is to act as such, to issue to the shipper
or consignor or his agent, or person from whom any goods are
accepted for transportation, a bill of lading, manifest, or other
evidence of receipt and forwarding for each shipment received for
carriage and transportation, whether in bulk or in boxes, bales,
packages, bundles or not so enclosed or included, and there shall
be duly attached and cancelled, as is in this act provided, to each
of said bills of lading, manifests, or other memorandum, and to
each duplicate thereof, a stamp of the value of one cent:
Provided, That but one bill of lading
Page 177 U. S. 412
shall be required on bundles or packages of newspapers when
enclosed in one general bundle at the time of shipment. Any failure
to issue such bill of lading, manifest, or other memorandum as
herein provided shall subject such railroad or steamboat company,
carrier, express company, or corporation or person to a penalty of
fifty dollars for each offense, and no such bill of lading,
manifest, or other memorandum shall be used in evidence unless it
shall be duly stamped as aforesaid."
The argument is that as it is made the duty of the express
company to make and issue
"a bill of lading, manifest, or other evidence of receipt and
forwarding for each shipment, . . . and there shall be duly
attached and cancelled, as in this act provided, to each of said
bills of lading, manifests, or other memorandum and to each
duplicate thereof, a stamp of the value of one cent;"
therefore the obligation is imposed absolutely on the express
company not only to make and furnish the receipt, but to issue it
with the stamp duly cancelled. But, as we have said, though the
correctness of the claim be,
arguendo, taken for granted,
such concession does not suffice to dispose of the essential
issues. They are that, by the statute the express company is
forbidden from shifting the burden by an increase of rates,
although such increased rates be in themselves reasonable. As no
express provisions sustaining the propositions are found in the
law, they must rest solely upon the general assumption that because
it is concluded that the law has cast upon the express company the
duty of paying the one-cent stamp tax, there is hence to be implied
a prohibition restraining the express company from shifting the
burden by means of an increase of rates within the limits of what
is reasonable. In other words, the contention comes to this -- that
the act in question is not alone a law levying taxes and providing
the means for collecting them, but is moreover a statute
determining that the burden must irrevocably continue to be upon
the one on whom it is primarily placed. The result follows that all
contracts or acts shifting the burden, and which would be otherwise
valid, become void. To add by implication such a provision to a tax
law would be contrary to its intent, and be in conflict with the
general object which a law levying taxes
Page 177 U. S. 413
is naturally presumed to effectuate. Indeed, it seems almost
impossible to suppose that a purpose of such a character could have
been contemplated, as the widest conjecture would not be adequate
to foreshadow the far-reaching consequences which would ensue from
it. To declare upon what person or property all taxes must
primarily fall is a usual purpose of a law levying taxes. To say
when and how the ultimate burden of a tax shall be distributed
among all the members of society would necessitate taking into view
every possible contract which can be made, and would compel the
weighing of the final influence of every conceivable dealing
between man and man. A tax rests upon real estate. Can it be said
that, by the law imposing such a tax, it was intended to prevent
the owner of real property from taking into consideration the
amount of a tax thereon in determining the rent which is to be
exacted by him? A tax is imposed upon stock in trade. Must it be
held that the purpose of such a law is to regulate the price at
which the goods shall be sold, and restrain the merchant therefore
from distributing the sum of the tax in the price charged for his
merchandise? As the means by which the burdens of taxes may be
shifted are as multiform and as various as is the power to contract
itself, it follows that the argument relied on, if adopted, would
control almost every conceivable form of contract, and render them
void if they had the result stated. Thus, the price of all
property, the result of all production, the sum of all wages, would
be controlled irrevocably by a law levying taxes if such a law
forbade a shifting of the burden of the tax and avoided all acts
which brought about that result. It cannot be doubted that to adopt
by implication the view pressed upon us would be to virtually
destroy all freedom of contract, and in its final analyses would
deny the existence of all rights of property. And this becomes more
especially demonstrable when the nature of a stamp tax is taken
into consideration. A stamp duty is embraced within the purview of
those taxes which are denominated indirect, and one of the natural
characteristics of which is, although it may not be essential, that
they are susceptible of being shifted from the person upon whom in
the first instance the duty of
Page 177 U. S. 414
payment is laid. We are thus invoked by construction to add to
the statute a provision forbidding all attempts to shift the burden
of the stamp tax when the nature of the indirect taxation which the
statute creates suggests a contrary inference. And in this
connection, although we have already called attention to the
consequences which must generally result from the application of
the doctrine contended for, it will not be inappropriate to refer
to certain of the provisions of the act now under consideration
which more aptly serve to make particularly manifest the
consequences indicated. Thus, perfumery, patent medicines, and many
other articles are required by the statute to be stamped by the
owner before sale. The logical result of the doctrine referred to
would be that the price of the articles so made amenable to a stamp
tax could not be increased, so as to shift the cost of the stamp
upon the consumer. Yet it is apparent that such a construction of
the statute would be both unnatural and strained.
The argument is not strengthened by the contention that, as the
law has imposed the stamp tax on the carrier, public policy forbids
that the carrier should be allowed to escape his share of the
public burdens by shifting the tax to others who are presumed to
have discharged their due share of taxes. This argument of public
policy, if applied to a carrier, would be equally applicable to all
the other stamp taxes which the law imposes. Nor is the fact that
the express company is a common carrier and engaged in a business
in which the public has an interest, and which is subject to
regulation, of importance in determining the correctness of the
proposition relied upon. The mere fact that the stamp duty is
imposed upon a common carrier does not divest such tax of one of
its usual characteristics or justly imply that the carrier is, in
consequence of the law, deprived of its lawful right to fix
reasonable rates. Unquestionably a carrier is subject to the
requirement of reasonable rates, but, as we have seen, no question
of the intrinsic unreasonableness of the rates charged arises on
this record or is at issue in this cause. As previously pointed
out, to decide as a matter of law that rates are essentially
unreasonable from the mere fact that their enforcement will operate
to shift the
Page 177 U. S. 415
burden of a stamp tax would be in effect but to hold that the
act of Congress by the mere fact of imposing a stamp tax forbids
all attempts to shift it, and consequently that the carrier is
deprived by the law of the right to fix rates, even although the
limit of reasonable rates be not transcended. This reduces the
contention back to the unsound proposition which we have already
examined and disposed of.
There is a special provision of the law which grants
affirmatively the right to add the tax to the cost of an
instrument, and hence it is urged this express authority in one
case is pregnant with the denial of a right to do so in other
cases. The clause in the statute referred to is found in a
paragraph of Schedule A whereby a stamp tax is imposed on "bill of
exchange (inland), draft, certificate of deposit drawing interest
or order for the payment of any sum of money. . . ."
The second and concluding sentence of the paragraph reads as
follows:
"And from and after the first day of July, eighteen hundred and
ninety-eight, the provisions of this paragraph shall apply as well
to original domestic money orders issued by the government of the
United States, and the price of such money orders shall be
increased by a sum equal to the value of the stamps herein provided
for."
Without the provision last quoted, authority would have been
wanting to increase the cost of a government money order, by adding
the sum of the tax imposed upon such order to the charge therefor,
because the charge for a money order was fixed by law. This at once
explains the necessity for conferring authority to add to the cost
of the money order the amount of the stamp tax. Instead, therefore,
of giving rise to the suggestion that the right to shift the burden
of other stamp taxes was taken away in all cases where there was
liberty and power to contract, the provision relied on is
persuasive to the contrary. For clearly the express authority
conferred to do that which the law otherwise forbade in consequence
of the want of power in a government official cannot with reason be
held to imply a prohibition against doing that which was not
forbidden by law. The argument in effect amounts to this and
nothing more --
Page 177 U. S. 416
that, because it was imperatively necessary to confer a power
upon a government officer which, owing to statutory restriction, he
otherwise would not have possessed, therefore the legal deduction
must be drawn that freedom of contract as between those who had the
right to contract was destroyed.
But it is asserted that the War Revenue Act of 1898 was modeled
upon the Act of July the 1, 1862, providing internal revenue tax,
12 Stat. 432, and as the act of 1862 plainly manifested the purpose
of Congress to impose a stamp tax on express companies and to
forbid them from shifting the burden arising from such tax,
therefore the act under consideration should be construed as having
the same effect. The fact that the present act was modeled upon the
act of 1862 is undoubted (
see section 94 of the act of
1862, 12 Stat. 475), but the text of the act of 1862 expressed no
restraint upon the power of shifting by contract or by an increase
of rates within the limit of the requirement that they should be
reasonable. It follows that testing the present act by that of 1862
throws no additional light upon the controversy. The claim that the
act of 1862 contained a prohibition against shifting is thus
inferred. By the act of 1862, a stated percentum of tax was imposed
upon the gross receipts of railroads, steamboats, and ferryboats,
as well as toll bridges. Section 80, 12 Stat. 468. After providing
for the levy and collection of the taxes in question, the following
proviso was applied to the section by which the taxes just referred
to were levied:
"
Provided, That all such persons, companies, and
corporations shall have the right to add the duty or tax imposed
hereby to their rates of fare whenever their liability thereto may
commence, any limitations which may exist by law or by agreement
with any person or company which may have paid or be liable to pay
such fare to the contrary notwithstanding."
This express authority to shift the burden of the tax on gross
receipts, it is claimed under the rule of
inclusio unius,
justifies the implication that the power to shift did not exist as
to taxes imposed by other portions of the act of 1862 to which the
proviso did not apply.
In passing, it is worthy of remark that by the Act of March
3,
Page 177 U. S. 417
1863, 12 Stat. 713, it was enacted (sec. 10) that on and after
the 1st day of April, 1863,
"any person or persons, firms, companies, or corporations,
carrying on an express business shall, in lieu of the tax and stamp
duties imposed by existing laws, be subject to pay a duty of two
percentum on the gross amount of all the receipts of such express
business, and shall be subject to the same provisions, rules, and
penalties as are prescribed in section 80 of the act to which this
is an amendment."
In other words, when in 1863 the stamp tax relating to express
companies was abrogated and a tax on gross receipts substituted
therefor, the express companies were authorized to add the result
of the gross receipt tax to their charges, any law or contract to
the contrary. But the implication deduced from the authority
conferred by the statute of 1862 to shift the burden of the tax on
gross receipts levied on railroads, etc., by an increase of charges
is unsound. Indeed, the proviso in question, when properly
construed, gives rise to an inference contrary to the one sought to
be drawn from it.
The tax imposed under the section in question was not in form a
stamp tax, but on gross receipts, and the proviso referred to may,
from abundance of caution, have been inserted to leave no room for
the assumption that a tax thereby imposed was a direct tax, and not
subject to be shifted. Besides, the whole context manifests the
purpose not to declare a rule in violation of public policy as to
particular corporations, but to enable such corporations to possess
the power to shift the tax by increasing its charges, even although
contracts or restrictions previously imposed might otherwise
prevent.
The right to shift by an increase of rates within what is
reasonable can only be held to be illegal upon the assumption that
public policy forbids it. If such be taken to have been the
principle of public policy embodied in the act of 1862, that act
must be held to have repudiated, by the proviso to section 80, the
very public policy by the light of which it is contended the act
must be interpreted. If there was a rule of public policy giving
rise to the assumption that stamp taxes relating to express
companies could not be shifted, it becomes impossible in reason to
understand why, when the taxation was changed
Page 177 U. S. 418
by the act of 1863 from a stamp tax to one on gross receipts,
the express companies should have been brought within the proviso
to section 80 of the act of 1862. Clearly if the rule of public
policy which is relied on existed, it would have been as cogently
applicable to the one form of tax as to the other.
In the
State Freight Tax
Case, 15 Wall. 232, the Court was called upon to
notice a state law conferring a right to charge over by an increase
of rates the sum of tax imposed. In considering the subject (pp.
82 U. S.
273-274), it was said:
"The provision is as follows:"
"Corporations whose lines of improvements are used by others for
the transportation of freight, and whose only earnings arise from
tolls charged for such use, are authorized to add the tax hereby
imposed to said tolls, and to collect the same therewith."
"Evidently this contemplates a liability for the tax beyond that
of the company required to pay it into the treasury, and it
authorizes the burden to be laid upon the freight carried, in
exemption of the corporation owning the roadway. It carries the tax
over and beyond the carrier to the thing carried. Improvement
companies, not themselves authorized to act as carriers but having
only power to construct and maintain roadways, charging tolls for
the use thereof, are generally limited by their charters in the
rates of toll they are allowed to charge. Hence the right to
increase the tolls to the extent of the tax was given them in order
that the tax might come from the freight transported, and not from
the treasury of the companies. It required no such grant to
companies which not only own their roadway, but have the right to
transport thereon. Though the tolls they may exact are limited,
their charges for carriage are not. They can therefore add the tax
to the charge for transportation without further authority."
Other contentions as to the construction of the act based upon
various other provisions have been pressed with great earnestness,
but we deem it unnecessary to consider them, as the foregoing
considerations dispose of the case. It follows that the court below
erred in holding that by the act of Congress, the express company
was forbidden from shifting the burden of the stamp tax by an
increase of rates which were not in themselves unreasonable.
Page 177 U. S. 419
The judgment below rendered must therefore be reversed, and
the case be remanded for further proceedings not inconsistent with
this opinion, and it is so ordered.
MR. JUSTICE HARLAN and MR. JUSTICE McKENNA dissenting:
We are of opinion that the act of Congress imposed upon the
express company the duty not only of affixing at its own expense
the required stamp upon any receipt issued by it to a shipper, but
of cancelling such stamp -- thus giving to the shipper a receipt
that could, when necessary, be used as evidence. Whether the
company, having issued a receipt duly stamped and cancelled, could
increase its charges against the shipper for the purpose, whether
avowed or not, of meeting this additional expense, is not, in our
opinion, a federal question, and upon that point this Court need
not express an opinion.