Opinion of the Court.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

As, under Rev. Stat. § 709, a writ of error will go from this court only to the final judgment of the highest court of the State in which a decision in the suit can be had, it is evident that our jurisdiction in this case cannot be sustained, unless an order of a judge at chambers remanding a prisoner in a habeas corpus proceeding, can be regarded as an order of a "court" within the meaning of this section.

We held, however, in Carper v. Fitzgerald, 121 U. S. 87, that an appeal did not lie to this court from an order of a Circuit Judge of the United States, sitting as a judge and not as a court, discharging a prisoner brought before him on a writ of habeas corpus, for the reason that the act of March 3, 1885, c. 353, 23 Stat. 437, gave an appeal to this court in habeas corpus cases only from the final decision of a circuit court; and that Rule 34 did not make his decision as judge a decision of the court, the purpose of that rule being to regulate appeals to the Circuit Court from the final decision of any court, justice, or judge inferior to that court, as well as appeals from the final decision of such Circuit Court to the Supreme Court. As a writ of error from this court can only go to the highest court of a State, it follows by analogy that it will not lie to review the order of a judge at chambers.

The jurisdiction of this court was treated in the brief of plaintiff in error as if it turned upon the question whether, under the practice in Ohio, a writ of error lay from the Supreme Court of that State to an order of a circuit judge at chambers -the argument being that it did not, and hence that such judge was the highest court of the State in which a decision. in the suit could be had, and a writ of error would, therefore, lie from this court. In this view, petitioner should at least have applied to that court for a writ of error, or had the order of the circuit judge at chambers made the order of the circuit court. If it be true that, under the laws of Ohio, the final order of a circuit judge at chambers be the judgment or decree of a circuit court, then it is undoubtedly reviewable by the

Syllabus.

Supreme Court of Ohio, which is the highest tribunal of Ohio, and is expressly given jurisdiction by statute to review the judgments and orders of the circuit court. But, if this order be not a judgment or decree of a court, then it is not reviewable here, because this court, under § 709, is given authority to review only the judgment and decree of the highest court of the State. In other words, the order cannot be the order of a judge to defeat the jurisdiction in error of the Supreme Court of Ohio, and at the same time an order of a court to confer jurisdiction upon this court to issue a writ of error. The argument in reality defeats itself. Its very strength is also its weakness. By proving that a writ of error will lie from this court, it also proves that a writ of error will lie from the Supreme Court of Ohio, and this fact of itself defeats the jurisdiction of this court. Whether the principle of this case applies to other than habeas corpus cases we do not undertake to determine.

The writ of error must, therefore, be

Dismissed.

POSTAL TELEGRAPH CABLE COMPANY v. ADAMS.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI.

No. 649. Submitted December 3, 1894.- Decided January 21, 1895.

While a State cannot exclude from its limits a corporation engaged in interstate or foreign commerce, or a corporation in the employment of the general government, by the imposition of unreasonable conditions, it may subject it to a property taxation incidentally affecting its occupation in the same way that business of individuals or other corporations is affected by common governmental burdens. The tax imposed by the laws of Mississippi, (Code of 1880, c. 10, § 585; Sess. Laws 1888, c. 3,) when enforced against a telegraph company organized under the laws of another State, and engaged in interstate commerce in Mississippi, being graduated according to the amount and value of the company's property measured by miles, and being in lieu of taxes directly levied on the property, is a tax which it is within the power of the State to impose; and the exercise of that power, as expounded by the highest judicial tribunal of the State, does not amount to a regulation of interstate commerce, or put an unconstitutional restraint thereon.

Statement of the Case.

By the revenue laws of Mississippi certain taxes were levied as privilege taxes on various corporations, such as express companies, telegraph companies, insurance companies, sleepingcar companies, banks of deposit or discount, gas companies, and the like; and on taverns, hotels, restaurants, brokers, auctioneers, pedlers, liquor sellers, dealers in malt liquors, and so on. Code Miss. 1880, c. 10, § 585; Sess. Laws Miss. 1888, 8, act of March 8, c. 3. The tax required to be paid by telegraph companies was $3000 on each telegraph company operating within the State one thousand miles or more of wire, and on each telegraph company operating less than one thousand miles of wire a tax of one dollar per mile, and the tax thus levied was "in lieu of other state, county, and municipal taxes." During the fiscal years 1890 and 1891 the Postal Telegraph Cable Company, a corporation chartered under the laws of New York, operated within the State of Mississippi three hundred and ninety-one and twenty-eight hundredths miles of wire. The telegraph lines, equipment, and property appertaining thereto, owned and operated by the company within the limits of eighteen counties of the State, were during these years worth and valued at the sum of $41,967.54. The tax levied on the company by the law of March 8, 1888, under the name of privilege tax, amounted annually to $391.28, or an aggregate for the two years of $782.56. Under the general revenue laws of the State the ad valorem tax on the property of the company for the two years would have been $1188.56 for state and county purposes only, not including what might have been assessed and collected by municipalities in the way of ad valorem taxes for municipal purposes. For the years 1890 and 1891 the company failed to pay its taxes, and Adams, the state revenue agent of the State of Mississippi, brought suit in the Circuit Court of Hinds County, August 16, 1892, against the company therefor. The first count of the declaration was for the privilege taxes and the second count for ad valorem taxes in the several counties which it was alleged had been duly levied for state and county purposes. The company demurred to the second count and pleaded specially to the first count in substance,

VOL. CLV-44

Statement of the Case.

and so far as essential here, that it was a telegraph company duly incorporated and organized under the laws of the State of New York, and was on the 1st days of January, 1890, 1891, and 1892, respectively, engaged in and still continued, to carry on the business of a telegraph company, having offices in various cities and towns in the State of Mississippi, for the purpose of receiving and sending telegraphic messages and maintaining and operating certain lines of telegraph on the various post roads, public roads, and railroads extending over, across, leading into and from the State of Mississippi to the State of Alabama, and other points in other States of the United States and the Dominion of Canada. That it was also the lessee of the Atlantic Postal Telegraph Cable Company, a corporation duly organized under the laws of the State of New York, and by its charter authorized to construct and operate lines of telegraph in and between the various States of the Union, including the State of Mississippi. That as such lessee and owner it was engaged in the general public telegraph business of transmitting messages for commercial purposes by, along, and over its lines, within, from, through, and across the State of Mississippi, and many other States and Territories of the Union, and had offices for the receiving and sending of messages by telegraph in each and every State and Territory wherein the lines leased or owned by it extended, including the State of Mississippi. That on or about the 6th day of March, 1886, the company duly filed its written acceptance with the Postmaster-General of the United States of the restrictions and obligations of the act of Congress entitled "An act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military, and other purposes," approved July 24, 1866, now Title 65 of the United States Revised Statutes, and that in pursuance thereof it had been designated by the Postmaster-General as one of the telegraph companies that must transmit messages for the United States at a price and rate to be fixed by the said Postmaster-General. That defendant was engaged as a governmental agent of the United States, at the times mentioned, in transmitting messages for

Argument for Plaintiff in Error.

the government of the United States between its various offices, not only from points within the State of Mississippi to points without the State of Mississippi, but also for such government officers from points wholly within the State of Mississippi to other points also wholly within the State of Mississippi; and that all of the roads upon which the lines of said company were constructed were post roads of the United States.

Plaintiff demurred to the special pleas. The case came on to be heard upon these demurrers, and the Circuit Court sustained defendant's demurrer to the second count and plaintiff's demurrer to defendant's pleas to the first count, with leave to defendant to plead over. This, defendant declined

to do, and judgment was thereupon entered against the company for the amount of the so-called privilege taxes for the years 1890 and 1891, with interest and costs. From this judgment an appeal was taken to the Supreme Court of Mississippi, and the judgment affirmed. The opinion of that court will be found reported in advance of the official series in 14 Southern Rep. 36. A writ of error was then allowed to this

court.

Mr. T. Moultrie Mordecai and Mr. Philip H. Gadsden for plaintiff in error.

I. The tax sought to be collected from the Postal Telegraph Cable Company is a license tax for the privilege of exercising its franchises within the State of Mississippi.

The Supreme Court of the State, in the course of its opinion in this case, says: "It will be thus seen at once that this is a tax imposed upon a telegraph company in lieu of all others as a privilege tax."

II. Such a tax, imposed upon a foreign corporation, engaged in interstate commerce and in transmitting messages for the government of the United States, for the privilege of exercising its franchises within the State, is unconstitutional and void.

This court has decided in a large number of cases that no