
    The People of the State of New York ex rel. Railway Advertising Company, Relator, v. James A. Roberts, as Comptroller of the State of New York, Respondent.
    
      Corporation—tax on the amount of its capital stock employed in this State—suck amount cannot exceed the amount of the capital stock cmthorized by the chcvrter— a surplus employed in the business is not taxable.
    
    In a proceeding to review by certiorari a determination of the Comptroller in set-, tling, for the purposes of taxation, the amount of the capital stock of the rela^ tor, employed within this State, it appeared that the relator was- a foreign corporation, with a fully paid capital stock authorized by its charter of §5,000, and was engaged in an advertising business in this State in which it employed §40,000, from which it realized a net profit of §80,000 a year. The Comptroller fixed the amount of the capital stock employed in this State at §40,000,
    
      Held, that the determination was erroneous;
    That however great the aggregate property of a corporation was, its “ capital stock,” made by statute the basis of taxation, could not exceed the amount authorized by its charter;
    That such corporation might, if it chose, employ its surplus in business instead: of increasing its capital stock, and such surplus would not be taxable.
    Certiorari issued out of the Supreme Court and attested on the 29th day of October, 1895, directed to James A. Roberts, Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in regard to the settling of the amount of the capital stock of the relator employed by it in the State of New York and fixing the tax and penalty thereon for the year and ten months ending with November 1, 1894.
    
      L. G. Reed and John M. Bowers, for the relator.
    
      G. D. B. Hasbrouck, Deputy Attorney-General, for the respondent.
   Landon, J.:

' The relator was organized under the laws of West Virginia. The amount of capital stock authorized by its charter is $5,000, all of which has been fully paid in to the company. It does an advertising business in this State,, and employs, as the Comptroller has found upon ample evidence, $40,000 in such business, and - makes a net.profit thereby of at least $20,000 per year. It is liable to taxation “ upon its franchise or business ” upon the basis of “ the amount of capital stock employed within this State.” The Comptroller is authorized, for the purposes of the tax, to ascertain and determine the amount of such capital stock employed within this State. (See People ex rel. Singer Manufacturing Co. v. Wemple, 78 Hun, 63, for citation of the various statutes.) The Comptroller fixed the amount of capital stock thus employed in this State for the year and ten months ending November 1, 1894, at $40,000.

The relator claims that it could not in any event exceed $5,000.

We think it is settled by authority that “the amount of capital stock” made by statute the basis' of taxation, cannot exceed the amount authorized by its charter. (People ex rel. Union Trust Co. v. Coleman, 126 N. Y. 433; Williams v. Western Union Telegraph Co., 93 id. 188.) It is held that the money or property which a corporation may acquire or employ in its business may" greatly exceed the amount of its capital stock; such property consists of capital stock, surplus and franchise; the capital stock, however great the aggregate property, cannot exceed in amount, though it may in value, the amount permitted by its charter. (Id.)

Ordinarily the amount of the capital stock of a foreign corporation, doing business in this State which is employed within this State, is less than the amount authorized by its charter. In such case the Comptroller, in order to ascertain the amount employed within this State, may need to examine as to the extent and details of its business within the State. (People ex rel. Roebling's Sons’ Co. v. Wemple, 138 N. Y. 582; People ex rel. Seth Thomas C. Co. v. Wemple, 133 id. 323.) Rules applicable to ascertaining the part of the whole afford no warrant for assessing the whole above the amount of its fixed limit. It is said in Einstein v. Rochester Gas & Electric Co. (146 N. Y. 53), that “no acts of the officers or agents of the company are competent to enlarge the capital stock ; nor can the stockholders do so, save in the particular manner pointed out by the statute.” The relator may employ its surplus in its business if it chooses, instead of increasing its capital stock. The statute does not include in this particular field of taxation such surplus thus employed.

The determination of the-Comptroller should be reversed, with costs, the tax against the relator be fixed upon the basis of $5,000, its capital stock enrployed within this State.

All concurred.

Determination of the Comptroller modified, with fifty' dollars costs and disbursements, with directions that the tax against the relator be fixed upon the basis of $5,000, the capital stock employed within this State.  