The point upon which the final judgment was rendered in the case was the one considered and adjudged in the decision given on the demurrer to the declaration. The tax was not a property tax, because, under the constitution of Tennessee, all property must be taxed according to its value, and this tax was not measured by value, but was an arbitrary charge. What was done by the plaintiff was taxed as a privilege, it being assumed by the state authorities that the legislature had the power, under the constitution of Tennessee, to enact the sixth section of the act of 1877, and that the plaintiff had done what that section declared to be a privilege. By the decisions of the supreme court of Tennessee, cited in the opinion of the circuit court on the demurrer, it is held that the legislature may declare the right to carry on any business or occupation to be a privilege, to be purchased from the state on such conditions as the statute law may prescribe, and that it is illegal to carry on such business without complying with those conditions. In this case the payment of the tax imposed was a condition prescribed, without complying with which what was done by the plaintiff was made illegal. The tax was imposed as a condition precedent to the right of the plaintiff to run and use the 36 sleeping cars owned by it, as it ran and used them on railroads in Tennessee. The privilege tax is held by the supreme court of Tennessee to be a license tax, for the privilege of doing the thing for which the tax is imposed, it being unlawful to do the thing without paying the tax. What was done by the plaintiff in this case, in connection with the use of the 36 cars, if wholly a branch of interstate commerce, was made by the state of Tennessee unlawful unless the tax should be paid, and, to the extent of the tax, a burden was placed on such commerce; and, upon principle, the tax, if lawful, might equally well have been large enough to practically stop altogether the particular species of commerce.
What was that commerce? The plaintiff, by its contract, furnished sleeping cars to the railroad company, to be used by the latter 'for the transportation of passengers,' sufficient in number to meet the requirements of travel on the road. The plaintiff kept in order and renewed the carpets, ukpholstery, and renewed the carpets, upholstery, and renewals made necessary by accident or casualty, but all damages to the cars by accident or casualty were repaired by the railroad company. The plaintiff furnished employes on each car to collect fares for the accommodations furnished by the car, and to wait upon passengers and provide for their comfort. Those employes were governed by the rules adopted by the railroad company to govern its own employes, and the railroad company was liable for personal injury to, or the death of, any such employee of the plaintiff to the same extent only as if such employe was in fact an employe of the railroad company, and the latter was indemnified by the plaintiff for all liability in excess thereof. The railroad company carried free on its line such employes of the plaintiff and its general officers when on duty for it, and the plaintiff carried free in the cars it so furnished the general officers of the railroad company. In consideration of the use of such cars, the railroad company hauled them on the passenger trains on its line in such manner as best accommodated passengers desiring to use the cars, and furnished, at its own expense, fuel for them, and materials for the lights, and washed and cleaned them, and kept them in good order and repair, including renewals of worn-out parts, and all things appertaining to them necessary to keep them in first class condition, with the exceptions before specified in regard to carpets, upholstery and bedding, and furnished room and conveniences for airing and storing bedding. The plaintiff collected from every person occupying the car compensation for its accommodations in seats and couches. The railroad company permitted the plaintiff to place its tickets for seats and couches on sale in the ticket offices of the railroad company, the sale to be a part of the general duties of the ticket agents of the latter, and to be without charge to the plaintiff, but the proceeds of sales to be at its risk. The contract was made an exclusive on for 15 years, and the plaintiff agreed to protect the railroad company against all liability for the infringement of any patent in the construction and use of the cars, and there was a provision for the termination of the contract by either party on a breach of it by the other.
