
    The People ex rel. The Southern Cotton Oil Co. v. Edward Wemple, Comptroller.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    1. Corporations—Foreign—Taxes.
    A foreign corporation which maintains a sales agency in the city of New York, sells the products of its mills in this state, refines its crude oil here, maintains a deposit of its products and keeps large sums on deposit in banks of this state for the carrying on of its business, does business in this state within the meaning of § 3 of chap. 542, Laws 1880, and is liable for the tax imposed thereby.
    2. Same—Constitutional law.
    Said act is not unconstitutional as interfering with inter-state commerce.
    3. Certiorari.
    Where several months have elapsed since the return to a writ of certiorari, the general term will not permit the introduction of affidavits contradicting its statements after the argument.
    Certiorari to review the proceedings of defendant as comptroller of the state of New York in making an assessment of taxes upon relator under the corporation tax laws of 1880 and 1881, and the acts amendatory thereof.
    
      Tracy, MacFarland, Ivins, Boardman & Ptatt (W. W. MacFarland, of counsel), for app’lt; Charles F. Tabor (I. H. Maynard, of counsel), for resp’t.
   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 29, and was presented to the court December- 30, 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 of 1889, now form a part of it, and the whole act, including § 17, is to be construed as one enactment

Section 17, added by chapter 361, Laws of 1881, is not repealed.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 ex rel. Edison Electric Illum. Co., 11 N. Y. Supp., 246; 33 N. Y. State Rep., 29. But a certiorari may issue to review the readjustment and resettlement provided by § 19. Therefore the conditions imposed by § 17 on the issuing of a certiorari in proceedings under this tax law must now refer to the certiorari under § 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 its views. If it is still dissatisfied, it is proper that its certiorari should be taken with the same promptness, and on the same terms as would have been required when it sought to review a decision where it 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 §§ 19 and 20. But there was nothing in those sections which indicated an intention to repeal. It was desirable to specify in § 20 that a certiorari might be issued because § 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 limitation of four months in § 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 ex rel. American Contracting & Dredging Co. v. Wemple, Comptroller, May, 1891, 38 N. Y. State Rep., 17. 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, § 3, chap. 542, Laws of 1880. The relator maintained a sales agency in the city of Hew York; sold the product of its mills in this state; refined crude oil m this state; maintained a deposit or storage of its products, and kept on deposit in the banks of Hew York large sums of money for the use of the relator and for carrying on its business. Such are the statements in the return." People ex rel. v. Fire Commissioners, 73 N. Y., 437; People ex rel. Peck v. Commissioners, 106 id., 64; 8 N. Y. State Rep., 634; Code, § 2138. It is suggested by the relator that under § 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. Horn Silver Mining Co., 105 N. Y., 76, at p. 83 ; 6 N. Y. State Rep., 495, shows that the company was doing business in this state. Such was the conclusion of Judge Wallace in Southern Cotton Oil Co. v. Comptroller, MS., 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, chapter 176, and the act of 1855, chapter 37, and Parker Mills v. Commissioners of Taxes, 23 N. Y., 242, construing the latter act, and, also, People ex rel. Bank of Montreal v. Commissioner of Taxes, 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. Home Insurance Co. v. New York, 134 U. S., 594; S. C., 92 N. Y., 329; People v. Equitable 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. American Bell Telephone Co., 117 N. Y., 241; 27 N. Y. State Rep., 459, and the distinction taken in that case confirms 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. Shelby Taxing District, 120 U. S., 489; Asher v. Texas, 128 id., 129; Leloup v. Mobile, 127 id., 640. But this is well answered by Judge YTallace 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 domicil 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 for Savings v. Coite, 73 U. S., 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 cases in which a citizen of one state goes into another and carries on business there. In the latter class of cases there seems to be lacking that 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 judges of the highest court 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 No argument is presented- as to the amount of the tax, in case the relator is taxable.

Decision of the comptroller confirmed, with fifty dollars costs and disbursements.

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