
    People ex rel. Southern Cotton Oil Co. v. Wemple, Comptroller.
    
      (Supreme Court, General Term, Third Department.
    
    July 11, 1891.)
    .1. Certiorari—Contradictory Return—When Too Late.
    Where a writ of certiorari was awarded on the petition of a corporation against the comptroller of the state of New York to review his action in assessing taxes against petitioner, a foreign corporation doing business in the state of New York, and the return showed facts justifying the comptroller’s finding, it was too late, five months after the return, and after hearing and argument, for petitioner to file affidavits contradicting the return.
    -2. Taxation—Foreign Corporation—When Liable.
    A return in such case that petitioner maintained a sales agency, stored its prod- , uots, and kept a bank-account in the city of New York, sold the products of its mills in New York state, and refined its crude oil there, sufficiently showed that petitioner was doing business in New York state, within Laws N. Y. 1880, c. 542, s 3, (2 Rev. St. N. Y., 8th Ed., p. 1153,) imposing atax on foreign corporations “doing business in this state. ”
    iS. Same—Tax on Privilege.
    A tax-imposed on a foreign manufacturing company doing business in the state of New York is a tax on a privilege, and not a tax on property, and is not liable to objection under 2 Rev. St. N. Y. tit. 2, art. 1, § 5, (8th Ed.) p. 1094, which provides that the products of any state of the United States, consigned to agents in New York for sale on commission, shall not be assessed to such agents, nor under Laws N. Y. 1855, c. 37, § 1, which provides that all associations doing business in the state of New York, not residents thereof, shall be taxed on all sums invested in the business as if they were residents of the state.
    -4. Constitutionality of Tax—Interstate Commerce.
    The imposition of a tax on foreign corporations doing business in the state of New York (Laws N. Y. 1880, c. 542, | 3) is not an interference with interstate commerce, and is therefore not unconstitutional.
    
      Certiorari at the relation of the Southern Cotton Oil Company to review 'the proceedings of Edward Wemple, comptroller of the state of New York, in making an assessment of taxes on relator under the corporation tax-laws -of New York, 1880 and 1881. Laws N. Y. 1880, c. 542, § 3, provides, among other things, that “every corporation, joint-stock company, or association whatever, now or hereafter incorporated or organized under any law of this -.state, or now or hereafter incorporated or organized by or under the laws 'of any other state or country, and doing business in this state, except,” etc., “shall .be subject to and pay a tax as a tax upon its corporate franchise or business.” Banks’ St. (8th Ed.) pp. 1152, 1153. Law’s N. Y. 1851, c. 176, provides, ■among other things, that the products of any state of the United States, consigned to agents in any town or ward of this state for sale on commission for • the benefit of the owner thereof, shall not be assessed to such agents, nor shall such agents of moneyed corporations or capitalists be liable to taxation ■ under this section for any moneys in their possession or under their control, -transmitted to them for the purposes of investment or otherwise. Banks’ St. ■ (8th Ed.) p. 1094. Laws N. Y. 1855, c. 37, § 1, provides that “all persons and associations ‘ doing business’ in the state of New York as merchants, -bankers, or otherwise, and not residents of this state, shall be assessed and taxed on all sums invested in any manner in said business, the same as if ■-they were residents of this state; and said taxes shall be collected from the property of the firms, persons, and associations to which they severally belong. ”
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      Tracey, Macfarland, Ivins, Boardman & Platt, (W. W. Macfarland and William Parkin, of counsel,) for relator. Charles F. Tabor, Atty. Gen., (I. H. Maynard, Dep. Atty. Gen., of counsel,) for respondent.
   Learned, P. J.

In my own opinion, this writ should be quashed, for reasons which I will briefly state. The revision and readjustment of this tax was made by the comptroller September 2, 1890, and his order thereon was served that day on the relator. The petition for a certiorari was made December 29th, and was presented to the court December 30th, and the writ was issued the 31st. No papers or notice has been served on the comptroller, and nearly three months had elapsed since service of the order on the relator. Sections 19 and 20, added to the corporation tax-law by chapter 463, Laws 1889, now form a part of it; and the whole act, including section 17, is to be construed as one enactment. Section 17, added by chapter 361, Laws 1881, is not repealed. It prescribed certain conditions only on which a writ of certiorari to review could be granted. No certiorari can now be granted to review the original adjustment and settlement of the tax by the comptroller. People v. Wemple, 11 N. Y. Supp. 246. But a certiorari may issue to review the readjustment and resettlement provided for by section 19. Therefore the conditions imposed by section 17 on the issuing of a certiorari in proceedings under this tax-law must now refer to the certiorari under section 19. There is no other certiorari to which they can refer; and, as they have not been repealed, we have no right to disregard them. There is no reason why the legislature should not require the same conditions for a certiorari to review the resettlement which were required for a certiorari to review the original •settlement. The relator has had an opportunity to be heard before the comptroller, and to state his views. If he is still dissatisfied, it is proper that his certiorari should be taken with the same promptness and on the same terms as would have been required when lie sought to review a decision where he had not been heard. If the legislature thought that those terms were too strict, they would easily have repealed or modified them at the time when they added sections 19 and 20. But there was nothing in those sections which indicated an intention to repeal. It was desirable to specify in section 20 that a certiorari might be issued, because section 1 of the original act had provided for an appeal to state officers. Such right of appeal might be thought to prevent a certiorari. Code, § 2122. The limitations of four months in section 2125 of the Code would cause too much delay in the collection of this tax. Therefore I think that this certiorari was too late, and was improperly granted. But a majority of the court are of the opinion that a contrary doctrine was held by them in People v. Wemple, (May, 1891,) 14 N. Y. Supp. 859, hence I proceed to examine the merits.

The first question on the merits is whether the relator is “doing business in this state” within the meaning of the corporation tax-law, (section 3, c. 542, Laws 1880.) The relator maintained a sales agency in the city of New York; sold the product of its mills in this state; refined crude oil in this state; maintained a deposit or storage of its products; and kept a deposit in the banks of New York of large sums of money for the use of the relator, and for carrying on its business. Such are the statements in the return. People v. Commissioners, 73 N. Y. 437; People v. Commissioners, 106 N. Y. 64, 12 N. E. Rep. 641; Code, § 2138. It is suggested by the relator that under section 2139 the court should now permit it to introduce affidavits contradicting these allegations.' The return was made in January; and, whatever might be our power to hear contradicting affidavits, we do not think that at so late a time, and after argument, we should take the course suggested. Taking, then, this return of the facts, we think that the decision in People v. Silver Mining Co., 105 N. Y. 76, at page 83, 11 N. E. Rep. 155, shows that the company was doing business in this state. Such was the conclusion •of Judge Wallace in Cotton-Oil Co. v. Wemple, 44 Fed. Rep. 24, where this •company brought an action in equity to restrain the collection of the taxes, in which action the relator set forth in affidavits the nature of its business here. The relator, to enforce its view, cites the act of 1851, c. 175, and the act of 1855, c. 37, and Parker Mills v. Commissioner, 23 N. Y. 242, construing the latter act; and also People v. Commissioner, 59 N. Y. 40. But those laws and those decisions respect the taxation of property in this state. They do not touch the question now involved. This present law is not a tax on property. Insurance Co. v. New York, 134 U. S. 594, 10 Sup. Ct. Rep. 593, 92 N. Y. 329; People v. Trust Co., 96 N. Y. 387. It is a tax on the privilege of doing business here. State Railroad Tax Cases, 92 U. S. 575. The subject was again considered in People v. Telephone Co., 117 N. Y. 241, 22 N. E. Rep. 1057, and the distinction taken in that case cun Brins the views above expressed.

The relator further insists that this law, in its effect on corporations of other states, is unconstitutional, as an interference with interstate commerce. (Robbins v. Taxing Dist., 120 U. S. 490, 7 Sup. Ct. Rep. 592; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. Rep. 1; Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. Rep. 1380;) but this is well answered by Judge Wallace in the case just referred to. He says that the state could not tax the privilege of soliciting orders here in behalf of sellers doing business in other states. “But a foreign corporation which establishes a business domicile here, and brings its property within this jurisdiction, and mingles it with the general mass of commercial capital, is taxable here; and the power of the state is ample to tax its property, or to lay a tax on its privilege of doing business.” It seems to us that this is a sound distinction, and that it shows that the present case does not come within the decisions condemning interference with interstate commerce. See Society v. Coite, 6 Wall. 607. There is a clear distinction between the cases in which a citizen of one state sends agents or drummers into another, and the state into which they are sent imposes a license fee on them, and other eases in which a citizen of one state goes into another and carries on business there. In the latter class of eases there seems to be lacking tliat element of interstate commerce which a majority of the court discovered in the Robbins’ Case. The argument of the relator seems to go so far that the state could never, under this statute, tax a corporation of another state for any business which it should .do in this state, coming here and carrying on such business; and when we consider that it is the privilege of doing business here as a corporation on which this law imposes a tax, we shall see that the law is not subject to the criticisms made by the relator. It may not be easy to draw the line between such laws as do and such laws as do not interfere with the constitutional right that congress alone shall control interstate commerce. The views of the j udges of the highest courts of the country vary, and many of the cases show very able dissenting opinions. But from the best examination which we can give of this case, and of the decisions referred to by the relator’s counsel, we think the action of the comptroller was correct. Ño argument is presented us to the amount of the tax in case the relator is taxable. Decision of the comptroller confirmed, with $50 costs and disbursements.

Landon and Mayham, JJ., concur on the merits.  