
    The People ex rel. Edison Electric Light Co., App’lt, v. Edward Wemple, Comptroller, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed April 4, 1892.)
    
    1. Taxes—Domestic coup orations—Chap. 642, Laws op 1880—Capital. employed within state.
    The capital stock of the relator, a domestic corporation, was invested in patents extending over the United States and other countries. It received its income from the sale of licenses under its patents in various cities and villages in this and other states. The system adopted by it was to procure the formation of local corporations, and convey to them the right to use its patents over certain territory, and in payment take the stock of such local corporations. Held, that relator’s capital wTas employed in this-state and liable to taxation under chap. 542, Laws of 1880, as amended.
    2. Same.
    The word “employed,” as used in the statute, should be construed tornean employed by the relator.
    3. Same.
    The statute does not mean invested, it means used, kept at work or busy by the relator.
    Certiorari to review decision of defendant in assessing taxes-on relator for the years ending November 1, 1889, and November-1, 1890.
    
      Eaton & Lewis {Eugene II. Lewis, of counsel), for app’lt; S. W. Eosendale, attorney-general, for resp’t.
   Putnam, J.

This is a proceeding by certiorari to review the-action of the comptroller in imposing a tax upon the relator for the years ending November 1, 1889 and 1890, under the provisions of chap. 542, Laws of 1880, as amended, or added to, by chap. 361, Laws of 1881, chap. 151, Laws of 1882, and chap. 501 of 1885.

The substance of the provisions of said act, as far as they bear upon the questions involved, are as follows:

Section 1 provides that certain corporations shall make annual reports to the comptroller, on or before November 15th, of the amount of capital stock paid in, etc., and in cases where no dividends are made or dividends less than six per cent, that the officers,of the corporations shall, between the 1st and 15th of November in each year, appraise and estimate the value of the stock of said corporations and furnish the comptroller a certificate of the said value of such stock, under oath of its officers. Under § 3, “ every corporation * * * incorporated * * * in this state shall be liable to and pay a tax, as a tax upon its franchise or business, unto the State Treasurer annually, to be computed as follows: * * * The tax to be at the rate of one and one-half mills upon each dollar of the valuation of the said capital stock made in accordance with the provisions of the first section of this act.” Section 11 of said act, added by laws of 1882, as amended by chapter 501 of 1885, provides that, “ The amount of capital stock which shall be the basis of the tax under * * * § 3 * * * shall be the amount of capital stock employed within this state.”

It will be seen, therefore, that where no dividends are made, as in this case, the tax is to be imposed by the comptroller upon the value of that part of the capital of the corporation employed within this state.

The Edison Electric Light company was incorporated on December 31, 1886, under the laws of this state, having its office in the city of New York, with a paid up capital in 1889 of $1,500,000 and in 1890, $1,600,000, divided into shares of $100 each, the value of which the comptroller finds in 1889 was $135 per share and in 1890 at $170 per share, although no dividends had ever been paid.

The capital stock of the corporation was used in purchasing patents, defending the same .in litigations, experimenting and exploiting. In fact, substantially the whole capital of the relator was invested in its patents extending over the United States and other countries. It had in 1889 and 1890 received income from the sale of licenses under its patents in various cities and villages in this and other states. The system adopted by relator in the transaction of its business was as follows: It procured the formation of local corporations in desirable localities and conveyed to such local corporations the right to use its patents over certain territory, and in payment of such conveyances took the stock of such local companies.

In 1889 it held of such stock of various local corporations in this state $556,700, and in those outside of this state $1,453,673, amounting in all to $2,010,373. In 1890 the relator owned stock of companies in this state $1,399,950, and in those outside of the state $1,757,531, amounting to $3,157,481.

In the years 1889 and 1890, therefore, the Edison Electric Company’s capital was invested in local stock of various corporations in the state of New York and elsewhere to the amount as above specified, represented, we may properly assume, by certificates of stock in possession of relator at its office in New York, and also in its patent rights extending over that part of the United States and over other countries where it had not by any -conveyances sold its right to such patents.

The capital of the company being invested as above, its business in the years mentioned was the selling of the rights to use its patents to local corporations formed or being formed for a consideration which the relator received in stock of such local companies.

The question to be determined in this case is, did the comptroller reach k correct conclusion in holding that in the years 1889- and 1890 the whole capital stock of the relator was employed, within this state.

He so held, and fixed the value thereof at the sum as above-specified. Assuming that he reached the correct conclusion in determining that all of said capital stock was employed in the-state, his finding as to the value of such stock should be deemed conclusive. People ex rel. American C. & D. Co. v. Wemple, 42 St. Rep., 404.

The relator claims that not more than $50,000 of its capital is-employed in the state of New York. That the value of its patents for the state of New York does not'exceed one-twentieth of its entire value. That its capital invested in letters patent for all, the territory other than that of New York is not employed within the state. Also that where it has sold licenses for a local territory out of the state and taken stock in the local corporation it-has, as to each of those places, invested a part of its capital represented by such stock, which cannot be deemed capital employed in this state.

It is now settled that the action of the comptroller in such a case as this can be reviewed by cej'iiorari under § 463 of the Laws-of 1889. People ex rel. American C. & D. Co. v. Wemple, 42 St. Rep., 401. And, therefore, the question submitted by the parties above stated is properly before us and can be examined on its merits.

If the Edison Electric Light Company during 1889 and 18901 had been engaged in furnishing electric light at the various places outside of the state where the local corporations were formed, instead of said corporations, no doubt would exist that it would, in that case, have been engaged in a business outside of the state, and that a part of its capital was employed in such business. In such a supposed case the company would have occupied the same-position as the relator in People exrel. American C. & D. Co. v. Wemple, supra. But no such state of facts exists here as in that-case. This company’s only connection with business carried on outside of the state was to convey to local corporations formed for the purpose of using its patents the right to use the same for a. limited territory, receiving in payment for such right, instead of money, the stock of such corporations.

The relator might be deemed a wholesale dealer in electrical patents, doing business in New York, where it is incorporated, selling to local corporations all over the United States the right, to use its patents, and taking in payment the stock of such, corporations evidenced by certificates of stock, which we may assume are held by it at its office in New York. The cases of People v. American Bell Telephone Co., 117 N. Y., 241; 27 St. Rep., 459; and United States v. American Bell Telephone Co., 29 Fed. Rep., 44, determine that the Edison Electric Light Company is not doing business in the various places outside of the state where it has licensed local companies to use its patents. Those-cases hold that the owners of a patented article who have simply licensed the use of it to any other party for the purpose of carrying on a trade or business cannot be deemed liable to taxation on the theory that “it is carrying on the business.” Under the authority of the said cases the relator during the years of 1889 and 1890 only carried on a business in the state-of New York, and did not carry on any business outside of that state. This being so, was any part of its capital employed out of -the state ?

The claim of relator is that in every place where it has licensed local corporations, “ it has invested * * * a part of its capital, conveying a part of its patent rights, and taken in return for such investment certificates of stock evidencing and representing the same; and the letters patent owned by the. Edison Electric Light Company are properly invested and employed by it in territory co-terminous with the territory for which said letters patent were issued.”

As we have seen, the statute under which the comptroller acted authorizes him to levy a tax on the franchise or business-of the company at the rate of one and one-half mills on the-value of its corporate stock employed within the state. It will not be doubted that unless some part of its capital stock is-employed out of the state, all will be deemed under the act in question so employed within the state where the company is-incorporated, has its office and does its general business. It is important to determine what meaning shall be given to the word “employed” as used in the statute in question. Doubtless it should be construed to mean employed by the relator. Also, the statute does not mean invested. It means used, kept at work or busy by the relator.

It is not enough for the company to show an investment by it of a portion of its capital stock in the stock of a foreign corporation It must also show that that part so invested is employed by if out of the state. Suppose that the $2,010,373 owned by it in 1889 of local corporation stock and $3,157,401 in 1890 had been held in bonds of foreign states received in payment for its conveyance of patent rights; it would not be deemed to have that part of its capital employed out of the state of New York. So, the amount invested in the stock of the local corporations in various parts of the country is to be deemed a mere investment. The-amount of the relator’s capital so invested is not employed out of' the state. The doctrine laid down in the case of People v. American Bell Telephone Co., supra, determining that the relator is not engaged in any business in the various parts of the country outside of New York where it has licensed local corporations to use its patents, necessarily determines that the relator has not any capital employed where those local corporations exist. Unless the relator is engaged in the business carried on by said corporations it cannot be said to have its capital employed where said corporations, are located. The effect of the holding in the above cited cases is to-determine that the relation of relator to the local corporations-using its patents is that of a mere investor in the stock of such; ■companies. It is not engaged in the business of such corporations, and hence it has not employed its capital therein. Such capital may properly be deemed employed in the state where the -company is' located.

But relator insists that “from the very nature of patent rights, It is self evident that the capital of the relator invested in letters patent for a territory other than that of this state, is not, and cannot be, employed within the state.” And counsel quotes an expression made by Mr. Justice Curtis in Stevens v. Gladding et al., 17 How., U.S., 451, that “ These incorporeal rights do not exist in any particular state or district; they are-coextensive with the United States.” *

In other words, a corporation like that of Edison Electric 'Light Company who organize in this state with a capital of $1,500,000 paid up in cash under the act of 1880, as amended, might in the first instance be taxed by the comptroller for the whole amount of its capital stock. But the amount it purchased with its capital patent rights, although doing its entire business in New York city, can only be taxed under the act in question ■for the proportionate value of said patent rights for the state of New York. That only such proportionate part of the value would be deemed employed in this state.

The answer to this proposition is that although relator owns patent rights extending over the United States and over other countries, it is a New York corporation, only doing business in this state, and that, therefore, it does not employ its capital except in this state. A sale in New York of the patent right for South America or other territory outside of this state is doing business in New York, and not in South America or such other territory.

Under § 3 of the act of 1880 the tax imposed is not on prop■erty, but a tax upon the corporate franchise or business of the ■corporation. People ex rel American C. & D. Co. v. Wemple, 42 St. Rep., 403; People ex rel Southern Cotton Oil Co. v. Wemple, id, 634; People ex rel Edison Ill. Co. v. Wemple, 39 id, 608. In the case last cited the court remarked: “Although a part of •the relator’s capital stock was invested in patent rights, no deduction should be made to the tax on that account. The tax is declared by the statute to be upon the corporate franchise or business. * * * It cannot be affected in any way by the ■character of the property in which the capital stock was invested.” See also People v. The Home Ins. Co., 92 N. Y., 328. In People ex rel Edison El. Ill, Co. v. Wemple, supra, I infer that no deduction was made for the proportionate value of that part of the patent out of the state. In People ex rel American Bell Telephone Co., supra, although the point cannot be deemed decided, I infer from the language of the learned judge who delivered the opinion of the court, that he considered the amount of the capital of the Bell. Telephone Company invested in patents employed in Massachusetts, where that company was located. (See pages 255-6.)

In my judgment"a corporation chartered under our laws and doing its entire business in our state is liable to pay the license tax under the act of 1880 on its whole capital whether invested, in patents or otherwise.

As we have said, and as was held in People ex rel. Edison El. Ill. Co. v. Wemple, 39 St. Rep., 608, the comptroller could levy a tax under the act of 1880, though relator’s capital was invested-in patent rights. Those rights, it is true, extend over the United States and over other countries, authorizing the patentee or its grantees to use the patent inventions over all such territory. But the relator never did use or employ its patent rights outside of this state. The aforesaid local corporations, its licensees or grantees only used said patent rights. The only way .that relator-employed its capital so invested in patents was to sell patent rights at its office in the state of New York, and, therefore, it employed its whole capital at that place.

Counsel for relator cites the case of People ex rel American C. & D. Co. v. Wemple, 14 N. Y. Supp., 859; 38 St. Rep., 17, above referred to. That case is not similar to the one we are considering. There the relator was engaged in an actual business outside of the-state. In fact the greater part of its business was without the state. If the Edison Electric Light Company were engaged in actually-doing business now carried on by the various local corporations to which it has sold licenses, this case would be similar to the-case so cited.

The several authorities to which our attention is called where ■ the Pacific Mail Steamship Co. was relator against the commissioners of taxes, I do regard as parallel to this case. Without attempting to discuss those cases at length it is sufficient to say that they arose under a different statute. The taxes there held illegal were taxes against property, and not, as under the law of 1880, a tax on the franchise of business of the corporation. The same may be said as to the case or the People ex rel. Trowbridge v. The Commissioners of Taxes, 4 Hun, 395, and People ex rel. Panama R. R. Co. v. Commissioners of Taxes, 104 N. Y. 240; 5 St. Rep., 647. As stated in People ex rel. Edison Ill. Co. v. Wemple, supra, the tax being upon a corporate franchise is not affected in any way by the character of the property in which the corporate stock is invested.

The burden was upon the relator in this case to show that the-tax imposed by the comptroller of which he complains was not authorized by the act of 1880. He must affirmatively establish that proposition. People ex rel. Brush Ill. El. Co. v. Wemple, 39 St. Rep., 616. I think it has failed to do so, and hence that the action of the comptroller should be confirmed and the writ of certiorari granted therein be quashed, with fifty dollars costs and disbursements against the relator.

Herrick, J. concurs.  