Opinion of the Court.

276 U.S.

its highways by motor vehicles so employed, Hendrick v. Maryland, 235 U. S. 610; Kane v. New Jersey, 242 U. S. 160; Clark v. Poor, supra, and there is no evidence that the tax here is in itself an unreasonable charge for the privilege. But it is said that the particular scheme of taxation adopted by Connecticut imposes this tax in addition to statutory charges already made for the use of the highways in interstate commerce, and both in purpose and in effect discriminates against appellant and in favor of those operating motor vehicles in intrastate

commerce.

The state has adopted a system of financing its highway construction and maintenance under which about 80% of the cost is collected from fees for the registration of motor vehicles and for operators' licenses, from taxes on the sale of gasoline and from fines and penalties for violations of the motor vehicle laws. The balance of the cost is paid from general appropriations by the state legislature and a certain amount received under federal aid legislation. Appellant, it is conceded, pays certain taxes imposed alike on those engaged in intrastate and interstate commerce. These include a personal property tax upon its motor cars used in the state, a registration or license fee for each vehicle so used, and also, it is urged, a tax of two cents a gallon on the sale of gasoline within the state which in practice is absorbed by the consumer in the purchase price.

But no mileage tax like that imposed by Part II § 1 is levied upon those using motor vehicles in intrastate commerce. Instead, Part I, § § 2 and 3 of the act under discussion subject all companies engaged in intrastate motor bus transportation to an excise of 3% of their gross receipts less such taxes as they have paid locally on their "real and tangible personal estate." By Part I § 6 this excise is declared to be in lieu of all taxes on intangible personal property. Moreover, those who pay it are exempt

245

Opinion of the Court.

from the income tax of 2% imposed generally on corporations, including, apparently, the appellant. Conn. Gen. Stat., c. 73, as amended. It, like the mileage tax, is devoted to the maintenance of highways.

To show that the mileage tax is discriminatory appellant first points out the obvious differences between it and the gross receipts tax and, secondly, relies on an uncontradicted allegation in the bill of complaint that, apart from the mileage tax, it already contributes to the maintenance of the highways of the state in the same manner and to the same extent as others in the payment of the personal property tax, the license tax on buses and the shifted gasoline tax.

The two statutes are complementary in the sense that while both levy a tax on those engaged in carrying passengers for hire over state highways in motor vehicles, to be expended for highway maintenance, one affects only interstate and the other only intrastate commerce. Appellant plainly does not establish discrimination by showing merely that the two statutes are different in form or adopt a different measure or method of assessment, or that it is subject to three kinds of taxes while intrastate carriers are subject only to two or to one. We cannot say from a mere inspection of the statutes that the mileage tax is a substantially greater burden on appellant's interstate business than is its correlative, the gross receipts tax, on comparable intrastate businesses. To gain the relief for which it prays appellant is under the necessity of showing that in actual practice the tax of which it complains falls with disproportionate economic weight on it. General Tank Car Corp. v. Day, 270 U. S. 367; Hendrick v. Maryland, supra; Interstate Busses Corp. v. Holyoke Street Ry., 273 U. S. 45, 51. The record does not show that it made any attempt to do so.

That appellant is already contributing to highway maintenance is not in itself significant, for the state does

not exceed its constitutional power by imposing more than one form of tax as a charge for the use of its highways in interstate commerce. It is for appellant to show that the aggregate charge bears no reasonable relation to the privilege granted.

It is further objected that the provision of the state statute, Part II § 3, authorizing the suspension of registration as a remedy for the nonpayment of the mileage tax, is invalid in any case, since payment of even a lawful tax may not be enforced by the exclusion of the taxpayer from interstate commerce. Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530; St. Louis & Southwestern R. R. v. Arkansas, 235 U. S. 350. And it is not denied that appellees have threatened to invoke § 3 against appellant. But we need not consider here whether the principle relied on goes so far as to prevent a state from excluding from its highways a motor carrier which refuses to pay a charge for their use. Compare Hendrick v. Maryland, supra; Kane v. New Jersey, supra; Clark v. Poor, supra. Here the relief sought presupposes that the tax is unconstitutional. That point being determined against appellant we shall not assume that it will persist in its refusal to pay the tax.

Objections of less moment, which we have considered, do not require comment.

Affirmed.

WESTERN UNION TELEGRAPH COMPANY v.

PRIESTER.

CERTIORARI TO THE COURT OF APPEALS AND THE SUPREME COURT OF ALABAMA

Nos. 183 and 189. Argued January 17, 1928.-Decided February 20, 1928.

1. Where the supreme court of a State, in denying a petition for certiorari to an intermediate appellate court, on the face of the record did not pass upon the merits, the writ of certiorari from this court is properly directed to the intermediate court. P. 258.

252

Argument for Petitioner.

2. A provision in the tariff filed by a telegraph company pursuant to the Interstate Commerce Act as amended June 15, 1910, fixing a lower rate for an unrepeated message and limiting the liability of the company for mistake in its transmission to the amount received for sending it, represents the entire liability of the company for a mistake of that kind. The liability being statutory, can not be enlarged by the courts upon the ground that the mistake was due to "gross" negligence. P. 258.

21 Ala. App. 587, reversed.

CERTIORARI, 274 U. S. 727, to a judgment of the Court of Appeals of the State of Alabama affirming a recovery in an action against the Telegraph Company for damages resulting from a mistake in the transmission of a telegram. The Supreme Court of the State had declined to review the judgment of the court below, 215 Ala. 435. For earlier proceedings in the same case, see 18 Ala. App. 531; 20 Id. 388; 212 Ala. 271.

Mr. Francis R. Stark, with whom Mr. Ray Rushton was on the brief, for petitioner.

There has been no independent expression of opinion by this Court in the case of Primrose v. Western Union, 154 U. S. 1, or in any other case, to the effect that there was any magic in the term " gross " negligence that would invalidate the message contract.

This Court has consistently refused to recognize that there was any legal distinction between the different degrees of negligence, and has apparently inclined to, if not definitely adopted, the view that gross negligence is nothing but negligence with the addition of a vituperative epithet. The degree of negligence is immaterial since the Act of 1910. Western Union v. Esteve Bros., 256 U. S. 566.

This case involves a simple error in an unrepeated message, and the applicable clause of the published tariffs is that which limited the company's liability to the amount received for sending the message. Western Union v Czizek, 264 U. S. 281.

Argument for Respondent.

276 U.S.

There was no evidence that the negligence was "gross," as distinguished from simple, if that question were at all material.

If it is said that the mere error in transmission makes a prima facie case of simple negligence, that may be granted; but it is not gross negligence unless all negligence is gross, and unless this Court erred in its carefully considered opinion in Postal Telegraph Co. v. Warren Godwin Lumber Co., 251 U. S. 27, and in its reversal, per curiam, of Western Union v. Southwick, 255 U. S. 565.

If the degree of negligence were at all material, it was fatal error to charge the jury that they might find the defendant liable if it failed to "Bestow the care and skill which the situation demanded"—i. e., if the defendant was guilty of nothing more than simple negligence.

In any event, the plaintiff could not possibly have been entitled to more than $50, the amount at which the message was valued. Western Union v. Czizek, 264 U. S. 281.

Mr. D. M. Powell for respondent.

The rules of the telegraph company relieving it from liability beyond the cost of sending the unrepeated message do not apply where the company is guilty of wilful wrong or gross negligence. Primrose v. Western Union, 154 U. S. 1; Western Union v. Esteve Bros., 256 U. S. 569; Milwaukee R. R. Co. v. Arms, 91 U. S. 495; Preston v. Prather, 137 U. S. 608.

Gross negligence was not defined in the Primrose case, but we assume the Court must have had in mind the definition given in the Arms and Preston cases, supra. Be that as it may, the doctrine of gross negligence has been applied by both state and federal courts to cases where the facts were similar to the facts in this case. Ex parte Priester, 212 Ala. 273; Strong v. Western Union, 18 Idaho 389; Postal Telegraph Co. v. Nichols, 159 Fed. 647; White v. Western Union, 14 Fed. 710; Redington v.