Henry Billings Brown

“ If this tax be sustainable at all, it must be upon the theory adopted by the court that the municipality has the right to tax the company for the use of its streets. While I have no doubt of its right to impose a reasonable tax for such use, the tax must be such as to appear to have been laid bona fide for that purpose. It seems to me, however, that the imposition of a tax of $5 upon every pole erected by the company throughout the entire municipality is so excessive as to indicate that it was imposed with a different object. ”

“ While, as stated in the opinion of the court, $5 per pole would not be excessive if laid upon poles in the most thickly-settled business section of the city, the court will take judicial notice of the fact that all the territory within the boundaries of our cities is not densely populated; that such cities include large areas but thinly inhabited; and that a tax which might be quite reasonable if imposed upon a few poles would be grossly oppressive if imposed upon every pole within the city. ”

“ If she cannot levy a duty or tax from the master or owner of a vessel engaged in commerce graduated on the tonnage or admeasurement of a vessel, she cannot effect the same purpose by merely changing the ratio, and graduating it of the number of masts, or of mariners, the size and power of the steam engine, or the number of passengers which she carries. ”