author: Mayham, P. J. Putnam, J. Herrick, J.

text:
    The People ex rel. George C. Carter, App’lt, v. Frank Rice, Secretary of State, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 22, 1892.)

    Elections—Apportionment—Mandamus.
    On motion for a mandamus to compel the secretary of state to issue notices for the election of assemblymen under the apportionment of 1879, on the ground that the apportionment of 1892 is unconstitutional, Held, that such mandamus should be denied.
    Motion for mandamus.

      Risky & Robinson (Edwin H. Risley, of counsel), for app’lt; Simon W. Rosendale, Attorney General, for resp’t.
   Mayham, P. J.

—This was a motion for a peremptory mandamus requiring the secretary of state to immediately issue notices to the several county clerks of the state, stating the facts required by § 5 of chapter 680 of the Laws of 1892, and directing him to include in such notices the number of members of assembly from each, county directed, required and allowed by the apportionment law as contained in chapter 208 of the laws of 1879.

The motion further asks to restrain the secretary of state from receiving, filing or recognizing certificates of the division of the counties into assembly districts as prescribed by chapter 397 of the Laws of 1892, and also restraining him from canvassing election returns from assembly districts other than those created in pursuance to the apportionment made by chapter 208 of the Laws of 1879.

This application is based chiefly upon the affidavits of the relator, wherein it is alleged that the secretary of state is about to,, and has issued notices of election to the county clerks of the several counties of the state for the election of members of assembly at the general election to be held in November, 1892, in pursuance of the provisions of chapter 397 of the Laws of 1892, by which the number of members of assembly to be chosen in some of the counties in the state were changed from that provided by chapter 208 of the Laws of 1879.

The alleged ground upon which the application is made is that the enumeration of inhabitants upon which the apportionment of 1892 was made was unconstitutional and that the apportionment based upon such enumeration was therefore unconstitutional and void, and that the apportionment was unequal and therefore not in conformity with the requirements of that instrument, and is for that reason unconstitutional and void.

The main points urged against the constitutionality of this enumeration and apportionment are :

First. That the time of making the enumeration was unauthorized by the constitution.

Second. That the enumeration itself was unconstitutional in that it did not contain a statement of the number of persons of color not taxed.

Note.—A majority of the court did not concur on the constitutional question, hut only in the result.—[Ed.

Third. That the time of making the redistricting or apportioning of the assembly districts was not that prescribed by the state constitution.

Fourth. That °the .assembly apportionment designated by the ■act of 1892 was not so arranged as to contain as nearly as may be .an equal number of inhabitants.

The first ground of objection above specified, viz.: that the ■enumeration was not taken at the termination of the first decadel period after the enumeration of 1875 does not seem to be strenuously urged by the learned counsel for the relator, and it seems to be conceded that as the legislature of 1885 failed to perform the duty imposed upon them by § 4 of article 3 of the constitution in neglecting to provide for the enumeration of the inhabitants in that year, that that duty might be performed by a subsequent legislature at any time before the expiration of the decade for which it was to be taken.

The manifest object of the constitutional provisions in providing for frequent enumeration of the people being for the purpose of equalizing representation between different localities and political divisions of the state, presents a strong argument in favor of the performance of that duty by a subsequent legislature when the body upon which the duty was directly charged failed in its performance.

This principle has been established and sustained by a uniform current of judicial decisions. People v. Supervisors of Ulster County, 34 N. Y., 271; Rumsey v. The People, 19 id., 50; Smith v. Jones, 1 Barn. & Adol., 328-334; Ex parte Heath et al., 3 Hill, 42.

In the case last cited Cowen, J., at page 47, says : “ Nothing is better settled as a general rule, than that when a statute requires an act to be done by an officer within a certain time for a public purpose the statute shall be taken to be merely directory, and though he neglect his duty by allowing the time to go by, if he afterwards perform, the public shall not suffer by the delay."

■ In People v. Supervisors of Chenango County, 8 NI Y., 330, the question was, whether a board of supervisors which had neglected Ao perform a duty which they were required to perform at the annual meeting could be compelled -to perform it at a later period, and in the discussion of that question Judge Willard says: “ Their neglect to perform their duty at the time required cannot nullify the statute. They or their successors are bound to do what was required, and a failure to perform it may be compelled by mandamus.”

In the People v. The Board of Police, 46 Hun, 296; 11 St. Rep., 403, it was held that when the statute directed that the board of police should make appointments of inspectors of election in the months of August and September in each year, their failure to do so did not invalidate an appointment made after that time. The principle above enunciated seems so well settled that further citation of authorities is unnecessary. The same rule of construction which applies to statutes is equally applicable to constitutional provisions of similar character. In the People v. Enoch L. Fancher, 50 N. Y., 288, Allen, J., says: “The same general rules which govern the construction and interpretation of statutes and written instruments generally apply to and control the interpretation of written constitutions.” Within the above principles and* authorities, it would seem that the legislature of 1892 might lawfully perform the constitutional duty of providing for an enumeration of the inhabitants of the state which the legislature of 1885 neglected and refused to do, and that the law authorizing the enumeration in 1892 was constitutional.

The second objection taken to the unconstitutionality of the-enumeration is that it failed to enumerate and tabulate persons of color not taxed.

The constitution of the state relating to senate districts provides that: “ Each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens and_ persons of color not taxed.” Article 3, § 4 of the constitution. Section 5 of the same-article provides that: “ The members of assembly shall be apportioned among the several counties of the state by the legislature, as nearly as may be, according to the number of their respective inhabitants, excluding aliens, and shall be chosen by single districts.”

It will be seen by this provision that persons of color not taxed are not to be excluded from the enumeration in the designation of assembly districts, but the enumeration for the apportionment is to embrace all except aliens, and it is difficult to see how an apportionment of members of assembly can be made to conform to that provision of the constitution without embracing all the inhabitants except aliens.

This, the petition expressly alleges, was done by the legislature in making the apportionment by chapter 680 of the Laws of 1892.

Ro question is raised in the notice of motion in this case as to the formation of senate districts, and we are only called upon in this proceeding to examine the constitutionality of the law as applied to assembly districts. By the theory of the constitution, the formation of senate and assembly districts are entirely distinct.

Senate districts are formed by the legislature, while the legislature only apportions the number of assemblymen to which counties are entitled, where entitled to more than one, between the different counties, leaving the districts to ■ be formed by the boards of supervisors.

The formation of the assembly districts is in no way dependent upon the population or boundaries of the senate districts, and it would seem from the different constitutional provisions as to the persons to be excluded from the enumeration if the color line is still in force, that they are composed of different classes of persons ; to wit, persons of color not taxed to be included in assembly enumerations, and excluded in senatorial enumerations.

As the senate and assembly districts are in no way identical and the formation and erection of one in no way depends upon the other, it would follow that if the apportionment as to senate districts was unconstitutional by reason of the failure to exclude from the apportionment persons of color not taxed, because that class of persons are excluded in senatorial apportionment by the constitution, that fact could not render the formation of assembly districts unconstitutional, when the constitution in express terms requires that class of persons to be included in the enumeration.

if the enumeration is constitutional as to the assembly districts, and unconstitutional as to the senate, the former will be upheld; while on a proper application the other might be set aside.

Where parts of an act of the legislature, not dependent upon each other, are held, one to be constitutional and another unconstitutional, the part held to be constitutional will be upheld, while the part unconstitutional will be overthrown.

In Wynehamer v. People, 13 N. Y., 442, Selden, J., says: When part of a law is in conflict with the constitution, and that part is entirely separable from the residue, so that other portions of the law can be enforced without reference to it, then the unconstitutional part only will be condemned.”

In Presser v. Illinois, 116 U. S., 252, the court say: “That statutes that are constitutional in part only will be upheld so far as they are not in conflict with the constitution, providing the allowed and prohibited parts are separable,” and similar doctrine is laid down in Packet Co. v. Keokuk, 95 U. S., 80; Penniman’s Case, 103 id., 714; Unity v. Burrage, 103 id., 459; Baldwin v. Franks, 120 id., 679.

It is urged with great force by the learned attorney-general that by the effect of the 13th and 14th amendments of the federal constitution, and the legislation in this state arising out of the provisions of those amendments, there no longer exists in this state a class of persons known as “ persons of color not taxed ? ” That by the enfranchisement of persons of color, without regard to property qualifications, all that class became citizens, and taxable, at least subject to poll tax, and the color line was expunged from our constitution by force of the provisions of the federal constitution.

But the views we have taken of this question would seem to uphold the constitutionality of the assembly district apportionment, and that, as we read the notice of motion, is the only question now before us, and we are not called upon to consider that question on this motion.

The next question for consideration is whether the apportionment can constitutionally be made at an extraordinary session of the legislature during the same year that the enumeration is taken and by the same legislative body.

The only constitutional restriction or limitation on the time for making the apportionment is that it is required to be made at “ the first session after the return of every enumeration.”

There is no direct requirement in the constitution that it shall be át a regular session of the legislature, nor is there any constitutional prohibition against its occurrence at an extraordinary session of the legislature, provided such session is the first one occurring after the enumeration.

It. is true that it has been held that the provision of the constitution as to the time of making the apportionment is not mandatory, and the failure of the legislature to make the same at the first succeeding session would not render an apportionment at a later period void. In Rumsey v. People, 19 N. Y., 41, Strong, J., in delivering the opinion of the court, uses this language: “ It has been objected to the acts constituting the assembly apportionment and the senate districts that they were not passed at the first session after the return of the enumeration made in 1885, according to the direction in the constitution. Articles three and four. That direction has not generally been considered so peremptory as to prohibit the performance of those acts at another time.

It is apparent that no such restriction was designed as to the time when such apportionment of assembly districts and formation of senate districts would be established.”

In the case Johnson, 0. J., uses this- language: “¡Now, as to senate districts and assembly apportionment they had power to act in 1857, as the neglect of their imperative duty in 1856 would not make void the apportionment in 1857.”

From this case it appears that the constitutional provision is not mandatory that the apportionment shall be made at the next regular session of the legislature chosen at the succeeding election, as is strenuously contended by the counsel for the relator.

That being so, if the extraordinary session at which this apportion was made was a legal and constitutional session of the legislature, then it could properly make this apportionment The governor by his proclamation assumed to convene the legislature in extra session under the provisions of § 4 of article four of the constitution. This article gave the governor power to convene the legislature in extraordinary session, and from the very nature of this provision he must be the judge as to what constitutes the extraordinary occasion. But if- we are to look for facts constituting an extraordinary occasion, it can bye found in the neglect of previous legislatures to provide for an enumeration upon which an apportionment could be made, and the gross inequality of representation of the different portions of the state in the legist la turc, which was not only a matter of public notoriety, but abundantly appears in the papers on this motion, furnishes such extraordinary occasion.

But it is urged that the proclamation did not set forth the object for which the legislature was convened and that for that reason it was irregular, and did not authorize the legislature to make an apportionment.

The constitution provides that: “At extraordinary sessions no subject shall be- acted upon except such as the governor may recommend for consideration. Article 4, § 4.

There is nothing in 'this constitutional provision that requires the governor to recommend any subject to the legislature in the proclamation convening the legislature in extraordinary session.

But under this provision, the legislature after convened would .be.powerless,to act if the governor failed to recommend a subject for. their action. This, however, the governor did on the conven- , ing of the legislature by a message addressed to them in which they were specifically limited to the making of an apportionment. It cannot, therefore, be. said that, the legislature acted without the authority upon which alone the constitution empowers them to act They, therefore, in fact legislated upon the subject recommended by the governor, and the objection to their acts upon that ground necessarily falls.

The only remaining question upon this point is, was the extraordinary session a session of the legislature ?

If it was, then it was clearly the first session after the enumeration, and one at which the apportionment could constitutionally be made. Most undoubtedly it was a session of the legislature, and came within the language of the constitution. This was clearly shown by Justice Macomber, in his opinion lately handed down in the People ex rel. Pond v. The Monroe Supervisors, 47 St. Rep., 456. He says : “ There may be more than one session oí the legislature during the legislative year, and that an extraordinary session may be the next session after the return of the enumeration to the legislature, if the governor interpose his discretionary .power so as to reconvene that body, though in the same legislative year, is, I venture to think, well shown by the constitution itself, taken as a whole.”

This view is strengthened when we find that where the constitution requires that any act shall be submitted to a legislature subsequently chosen, as in proposing amendments to the constitution, it is expressly provided that the proposed amendment must be submitted to a legislature subsequently to be chosen by the people. It is fair to argue and infer, therefore, that if the apportionment was required to be passed by a legislature subsequently chosen, the constitution would have so expressly provided.

I am, therefore, clearly of the opinion that it was competent, within the constitution, for the legislature to make this apportionment at the session at which it was made.

It remains to consider whether the assembly apportionment, in the act under consideration, is such as to authorize the court to set the act aside as unconstitutional and void.

Section 5 of article 8 of the constitution provides that the members of assembly shall be apportioned among the several counties of the state by the legislature, as nearly as may be, according to the number of the respective inhabitants.” It is clear that the words “ as nearly as may be ” are words conferring a discretion upon the legislature; they were not in the original constitution, and first became a part of the fundamental law by the amendment of 1801. That amendment could have had no. other purpose than that of conferring a discretion on the legislature in making the apportionment. -

But we .are not without judicial guide in determining what this phrase “ as nearly as may be signifies. In Ind. & St. L. R. R. Co. v. Horst, 3 Otto, U. S., 300, 301, Judge Swayne, in speaking as to the conformity of the pleadings. and practice of that court to the practice of the state court, when the action is prosecuted in the United States courts in a state, in construing the statute of the United States, containing these words,says: “ The conformity is required to be as near as may be, not as near as may be possisible, or as near as may be practicable.”

This indefiniteness may have been suggested by a purpose; it devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as congress doubtless expected they would do, any subordinate provision in such state statutes which in their judgment would encumber the administration of the law, or tend to defeat the ends of justice in their tribunals.

The constitution of the state of Maine provides that “ The districts shall conform as near as may be to county lines, and be apportioned according to the number of inhabitants.” And Judge Whitman in construing that language says: “ The words as near as may be showed that something was left to the discretion of the legislature, and are to be regarded as in some measure discretionary, and not containing a mandate of a nature so explicit as that obedience mnst follow without consideration.”

The language of the constitution in that state is even more explicit than in the New York constitution, for it provides that the apportionment shall be made “ according to the number of inhabitants," and yet the court in the 18 Maine, 460, in declining to interfere with an apportionment, say, “ If such power should be abused in any case the remedy is with the people. Those guilty of any such outrage will be likely to become in time the victims of their own misconduct. In popular governments this, and the right which it maybe believed the people will, exercise, of displacing bad servants, are great checks upon the abuse of power.”

In Prouty v. Stover, 11 Kansas, 261, the court in discussing this question say: “An apportionment cannot be overthrown because the representatives are not distributed with mathematical accuracy according to the population. Something must be left to the discretion of the legislature, and it may, without invalidating the apportionment, make one district of a larger population than another. It may rightly consider the compactness of territory, the density of population, and we think the probable changes of the future, in making the distribution of representatives.”

It will be seen that in construing constitutional provisions like the one under consideration, where the legislature have a discretion in making the apportionment, the courts have not regarded themselves as authorized to review that discretion.

' Any other construction would make the apportionment to depend upon the discretion of the courts, which have not been invested by the constitution with any discretionary power upon this subject, and take the same from the legislature, where the constitution has so plainly lodged it.

Again, this discretion has always heretofore been exercised by the legislature without interference from the judicial department of the state, which furnishes a strong' reason for holding that the

people by universal consent have considered that that power is lodged with the legislature, and that • too when the enumeration showed greater inequalities of representation than any" of which the relator in this case complains.

In the apportionment of 1875, Orange Co., with a population of 82,225, was awarded two members of assembly, while St. Lawrence Co., with a population of 78,014, was awarded three members. Suffolk Co., having a population of 50,350, was given one member, while Cattaraugus, having only 45,737, was given two members,,, and Washington, with a population of 46,330, was given two members, and Niagara, with 47,620, Otsego, with 48,987, and Wayne, with 47,567, were each given two members; so the list might be multiplied.

From these figures it will be seen that the - legislature has uniformly exercised this discretion, and that, too, without their acts being questioned in the courts as unconstitutional. Eeference to these inequalities is not made for the purpose of offsetting one wrong against another, but rather to show that such irregularities, have not been regarded as such an abuse- of the discretionary power vested in the legislature as to render their apportionment unconstitutional and -void.

I am not unmindful of the fact that a different conclusion has been reached by a majority of the judges of the general term of the fifth department upon some of the questions involved in this motion. But that decision did not involve the restraining of a state officer from the discharge of a statutory duty imposed upon him, the performance of which is a necessary prerequisite to the holding of an annual election in the state' for the election of members of assembly.

It is true that the motion before us asks the mandatory process of this court, compelling the secretary of state to issue notices of election of members of assembly in pursuance of the provisions of chapter 208 of the Laws of 1879, but we have already seen that if chapter 397 of the Laws of 1892 is unconstitutional by reason of the inequalities of representation, that the provisions of chapter 208 of the Laws of 1879, based upon the enumeration of 1875 as the population of the state then was,, would be subject to the same criticism and condemnation.

In a matter of such grave importance, so far reaching in its consequences, the court should not resort to this extraordinary power of injunction and mandamus against a co-ordinate department of the government except in a case where the unconstitutionality of the law under which the administrative officer is required to act is free from reasonable doubt

In Ex parte McCollum, 1 Cow., 550, Savage, J., says : “Before the courts will deem it their duty to declare an act of the legislature void, a case must be presented in which there can be no rational doubt.

“An act of the legislature cannot be set aside as unconstitutional unless its incompatibility with the constitution is manifest and unequivocal”

In People v. Draper, 15 N. Y., 532-545, the court say : “ There is room for much bad legislation within the pale of the constitution, but whenever this happens the remedy which the constitution provides^ by the opportunity of frequent election of legislative bodies, is far more efficient than any which can be afforded by the judiciary.” The courts cannot impute to the legislature any other than public motives for their acts. In People v. Supervisors, 17 N. Y., 235, the court uses this language: “Some respect is due to the opinions of a co-ordinate power of the government. A legislative act is not to be declared void upon mere conflict of interpretation between' the legislature and the judicial power. Before proceeding to annul by judicial sentence what-has been enacted by the law-making power, it should clearly appear that the act cannot be supported by any reasonable intendment or allowable presumption.”

Within these rules of interpretation it is difficult to see how this act can be declared unconstitutional and void by this court

I am, therefore, of the opinion that this motion should be denied.

Motion denied, with costs and printing disbursements.

Putnam, J.

the submission of -this case I have been inconstant attendance at general term, and unable to consider the important questions involved, or even read the elaborate briefs-presented, or the opinions of Justices Rumsey, Lewis, Dwight, and Macomber on the “ Monroe ” case.

My associates, comprising a majority of the court, have reached the conclusion that the motion for a mandamus should not be granted. Counsel suggest that ah early decision of the case by this court is necessary in order that the opinion of the court, of appeals may be seasonably taken upon the question submitted to us.

Without an opportunity to examine the case, I am neither able to concur with, or dissent from, the conclusion of my associates. Inasmuch as my opinion, concurring or dissenting, would not change the result, and in order that the matter may be at once submitted to the court of appeals, I deem it advisable not to retain the case for examination.

Herrick, J.

—-The relator asks that a mandamus be issued by this court directing the defendant to issue election notices to the-clerks of the respective counties of the state, and that he embrace in said election notices the number of members of assembly re- . quired and allowed to be voted for under the apportionment act of 1879, known as chapter 208 of the Laws of 1879, and that he be restrained from accepting and filing certificates of the division-of the counties into assembly districts under the apportionment act of 1892, known as chapter 397 of the Laws of 1892, and restraining him from doing anything to carry into effect said chapter 397 of the Laws of 1892, upon the ground that said act is unconstitutional and void.

The defendant, bythe attorney general of the state, maintains the-constitutionality of the act of 1892, and calls attention to the fact. that the act of 1879 is subject in some respect to the same criticism that is passed upon the act of 1892.

It will be seen at once that the questions involved are of grave moment and of great public importance. The public interests imperatively demand a final determination of this controversy by the court of last resort at as early date as is consistent with due and proper deliberation.

The election is to be held November 8th ; the court of appeals meets October 3d.

This court is now in session engaged in hearing cases, and will be so engaged for some time to come; to wait until it adjourns and then take up this case for examination and determination will postpone the decision until too late a date to permit of its being taken to the court of appeals in time to have it heard and decided before election. Neither can I, during the term of the court, make such an examination of the case as its importance demands, or in justice to the court of which I am a member attempt during the session to formulate an opinion upon questions of law so grave as are here involved.

The general term of the fifth department, in the case of the People ex rel. Pond v. the Board of Supervisors of Monroe County, by a divided court has decided some, but not all, of the questions involved in this proceeding. I have read the very» able and learned opinions by the several members of the court in that case, but am not prepared without further examination and reflection to either concur in or dissent from the determination arrived at in that case.

But if the court is correct in its reasons for its decision in that case, it seems to me that it must necessarily dispose of this, because, as was pointed out by the attorney-general, the same vice as to inequality in the apportionment' of members of .assembly exists in the apportionment act of 1879 as is alleged in regard to the act of 1892. If the act of 1892 is void because the members of assembly have not been “apportioned among the several counties of the state * * * ' as nearly

as may be, according to the number of their respective inhabitants ” (§ 5, article 3, of Constitution), then the act of 1879 is void for the same cause, and there is no reason why the court should command the secretary of state to proceed under that act instead of the one passed in 1892.

Without, then, at this time expressing any opinion as to the constitutionality of either law, and for the purpose of expediting the final determination of the questions involved, I unite with Mr. Justice Mayham in deciding against the application for a mandamus.

Let a decree be entered accordingly.


source: Caselaw Access Project

author: Herrick, J. Mayham, P. J.

license: Public Domain

text:
    The People ex rel. The Pennsylvania Railroad Co., Pl’ff., v. Edward Wemple, Comptroller, Def’t.

      (Supreme Court, General Term, Third Department,

      Filed September 22, 1892.)

    Taxes—Corporations—Foreign, carrying on interstate commerce.
    Relator is a foreign corporation, carrying, on interstate commerce and having terminal facilities in New York city, where it receives- and discharges passengers and freight, leases buildings, employs help and keeps a. bank account. Held, that these things were mere incidents of its interstate business, and did not constitute business within the state so as to render relator liable to a tax on its business.
    Certiorari to review the decision of the comptroller of the; state of New York settling an account against and assessing a tax: upon the relator of $40,836.83 under the alleged authority of chap. 542, Laws 1880, and the various acts amendatory thereof and supplementary thereto.
    The facts appear fully in the opinion of Mayham, P. J.

      Robinson, Bright, Biddle & Ward (Edmund Randolph Robinson and Charles M. Hough, of counsel), for relator; Simon W. Rosendale, attorney general (Charles F. Tabor, of counsel), for def’t.
   Herrick, J.

—Concededly the tax imposed by the comptroller upon the relator is not a franchise tax, nor a tax upon its property located in this state. It is a tax upon its business. Whafe is that business ? The relator is engaged in transporting freight, and passengers through the states of New Jersey and Pennsylvania ; it has terminal facilities in the city of New York, where it discharges freight and passengers brought over its lines from, without the state, and receives freight and passengers to be transported over its lines to places beyond the state, but none to be transported to points within the state. The only business that is done within the state by the relator is to receive freight and passengers to be sent out of the state, and to receive freight and passengers shipped from without the state to this state.

The business described is commerce between the states, and a tax upon it is illegal. Gloucester Ferry Co. v. Penn., 114 U. S., 196; Robbins v. Shelby Co. Taxing Dist., 120 id., 489; Leloup v. Mobile, 127 id, 640.

The leasing of property in which to carry on its business, the? employing and paying workmen, clerks and agents within the state, and paying them here, the keeping of money in New York banks, depositing and drawing out the same from time to time, do not constitute a business within the state; all of these things are but incidents of the business carried on by the relator, the machinery by which it is transacted; it is not the business itself. There is a clear distinction between this case and that of the Southern Cotton Oil Co., 61 Hun, 83; 39 St. Rep., 738; there the court said the company maintained a sales’ agency in the city of New.York; sold the products of its mills in this state; refined crude oil in this state; maintained a deposit or storage of its products, and kept on deposit in the banks of New York large sums of money for the use of the relator, and for carrying on its business.”

That describes a business, not the incidents to, or the means by which it is carried on, but the business itself, all of which was done,whhin this state.

This is not' the case of a co-partnership or corporation having its principal place of business in Mew Jersey, or some other state, establishing a branch house in this state, and carrying on business here, bringing its property here, and mixing it with the general mass of property and commercial capital of the state. All corporations engaged in transporting freight and passengers between .and through the states must have the means to effect such trans-, portation, and must have terminal facilities; and while the property owned by them in the several states, and used to carry on ■such business, may be subject to a property tax by the respective states, yet the business itself cannot be. And the caring for and maintaining the means or instruments of transportation, the accruing, leasing or management of depots, warehouses or ■docks, the employing of men necessary to carry on such transportation, is not a separate and distinct business which can be taxed.

Of course, some part of the relator’s business is carried on in this state; necessarily so; it would not be interstate commerce if part of it was not carried on in different states; but, on the other hand, it appears that none of the relator’s business is carried' on wholly within this state, that is, none of its transporting business ; that which is done wholly within this state is not business, but merely the necessary incidents of business. Commerce between the states being the only business in which the relator is engaged and the tax in question being levied not as a property or franchise tax, but as a tax upon its business, I think the determination of the comptroller was erroneous and should be reversed.

Let an order be entered accordingly, with ten dollars costs and printing and other disbursements.

Putnam, J., concurs.

Mayham, P. J.

—The relator is a foreign corporation, incorporated under the laws of the state of Pensylvania as a .raih-oad company, with an authorized capital stock of $151,700.00, having terminal facilities in the state of Mew York, and owning and leasing real estate therein, where it receives goods and passengers for transportation in the transaction of its business as a carrier, and has been since January 1, 1880, engaged in business in the state of'Mew York, which business is not of the class or kind exempted from taxation under chap. 542 of the Laws of 1880.

1 . From 1880 to 1889 the relator declines to make any return to the comptroller of this state under the act last referred to, except "that*it was engaged in interstate commerce, and that any tax im- . posed upon its business or franchise únder this act was. in violation of article 1, § 8 subd. 3 of the Constitution of the United States.

In 1889 the comptroller appointed a special commissioner to examine into the business and capital stock of the relator situate and employed in the state of Mew York.

On the filing of the report of such commissioner the comptroller imposed and settled a tax upon the corporation for each year from 1880 to 1889, both inclusive, based upon the value of the capital stock employed in the state of Mew York as per report filed, which amounted in the aggregate to the sum of $87,169.90, to which he added a penalty of ten per cent, and gave written notice thereof to said corporation, annexed to which was a statement of the tax so settled.

The corporation after receiving the notice from the comptroller of the settlement of this tax applied on petition and affidavit to that officer for a revision and readjustment of the several accounts for taxes settled against it, and the comptroller on the 29th day of September, 1891, made an order declining to make any revision or readjustment of the same, whereupon the relator sued out this writ of certiorari.

It can hardly be denied that from the petition, return and evidence in the case the relator is shown to be a foreign corporation, doing business in this state and as such is liable under the provisions of § 3 of chapter 542 of the Laws of 1880 as amended by chapter 501 of the Laws of 1885, to the tax upon the amount of its capital stock used in its business in this state, unless as such corporation it has immunity from such tax under the Federal constitution relating to interstate commerce. The petition of the relator alleges that no part of its line or lines owned, leased or* operated by it is within the state of Mew York, but admits that it owns and leases lands in the state of Mew York, which it uses in its business. The answer of the defendant denies that the relator during the years for which the tax is imposed was wholly engaged in commerce in states other than the state of Mew York and between different states, and between the state of Mew York and different states, and that it is not in any way engaged in carrying freight and passengers within the state of Mew York, and alleges that it appears from the official certificate of the secretary of internal affairs of Pennsjdvania that the eastern terminus of its vast system of transportation is in the city of Mew York where it has extensive and valuable terminal facilities and carries on a substantial and important part of its business.

This allegation of the answer seems to be supported by the evidence of one of the officers of the relator’s company, taken before the commissioner appointed by the comptroller and made a part of the record of this case. Within the letter of this act, we do not think the relator a foreign corporation doing business in this state. People v. Wemple, 61 Hun, 85; 39 St. Rep., 738.

The statute under which the comptroller assumes to act authorizes a tax upon the franchises or business of a corporation organized under the laws of any other state or country and doing business in this state, and the comptroller in this case in settling the account of this tax, expressly states that the same is “ for .tax on franchise or business, based on the value of the capital stock employed in New York state, per chapter 542, Laws of 1880, as amended by chapter 361, Laws of 1881; chapter 151, Laws of 1882 ; chapter 359 and chapter 501, Laws of 1885, and chapter 353, Laws of 1889, for ten years ending November 1, 1889.

It will be seen that this assessment or tax is upon the franchise or business of the relator in this state based upon the value of the capital stock employed therein, and is at the rate per cent per annum allowed by that act, depending upon the dividends declared ■upon the stock for these years, as the amount of stock and dividends appear from the report of the special commissioner appointed by the comptroller.

Before the amendment of 1885 above referred to, the whole amount of capital stock of the corporation could be taken as the basis of estimating and making the account of this tax by the comptroller. By that amendment nine additional sections were added to the original act of 1880. By § 11, which is the first of the added sections, the comptroller is “authorized"and empowered to ascertain, fix and determine the amount of capital stock employed within the state and to settle an account of the taxes and penalties due thereon.”

In the case of the People ex rel. Southern Cotton Oil Co. v. Wemple, 42 St. Rep., 634, O’Brien, J., says: “ The basis of the tax is the amount or proportion of the capital used here in the transaction of its ordinary business. How much that may be in any particular case is generally a question of fact to be determined by the comptroller under the procedure pointed out by the •statute.”

If this corporation is within the taxing power of the state, and rthe statute under which it is sought to be taxed when applied to it is not in conflict with the provisions of the federal constitution, which confers upon congress the exclusive power to regulate ■commerce between the states, then, we think that the determination of the comptroller upon the question of fact as to what proportion of the capital of the relator was used in this state in the transaction of its business should not be disturbed by this court

The rule has long been settled that when a taxing officer is •charged with the duty of determining the amount of an assessment for taxation his determination will not be disturbed, unless clearly shown to have been erroneous. Runk v. St. John, 29 Barb., 585; Bank v. LaCombe, 84 N. Y., 367, 385; Kelly v. Crapo, 45 id., 86; People v. Wemple, 60 Hun, 234; 38 St. Rep., 17; affirmed and the doctrine restated, People ex rel. American Contracting & Dredging Company, 129 N. Y., 558, 565; 42 St. Rep., 400.

We are then left to consider the remaining question, as to the power of the state to tax the relator on its franchise or business, based upon its capital and stock employed in this state. If we are right in the conclusion we have reached above, the only ground upon which this tax can be set aside in these proceedings is that of want of power in the state to impose tax upon the relator on the ground that the relator’s only business in this state is that of conducting interstate commerce.

It is clear that a tax on a foreign corporation doing business cannot be taxed in this state on its franchise, as the franchise is not granted in this state, and would no more be the subject of taxation here than would its property owned and used by it in another state. In People v. Equitable Trust Co., 96 N. Y., 393, it was held, that non-resident’s property having no legal situs here, and business not carried on here, are beyond the jurisdiction of this state and not subject to taxation here, and a defendant being a foreign corporation, could not be taxed here in reference to its. property situate out of the state, and its business not done here.

Nor could it be taxed on account of its corporate franchise, as that was not given by our laws, was dependent upon the laws of the state of its creation, and had no existence separate therefrom.

This seems to be conceded by the defendant’s counsel and also conceded that the tax imposed by the comptroller is not imposed upon its property, but for the privilege which is extended to it by the state, of doing business here, as a corporation, in its corporate name. People ex rel. Oil Co. v. Wemple, supra.

In this case the court also holds that “the state has the power to exclude corporations of other states from doing business within its jurisdiction. If, however, it permits them to come here and transact business, it may impose a tax upon them for this privilege, and this is not a regulation by the state of interstate commerce, but a lawful exercise of the power of taxation upon corporate bodies, that for the time being are within its jurisdiction for that purpose.

The learned judge in this opinion, in a brief but comprehensive manner, defines the boundary line between state and federal jurisdiction, as follows: “The only limit upon the power of the state to exclude foreign corporations from doing business within its limits, or to exact conditions for such privilege, arises where the corporation is in the employ of the federal government, or where its business is strictly commerce, interstate or foreign.”

It is not pretended that the relator is in the employ of the federal government. Nor can it, we think, be successfully maintained that its business is not “strictly commerce( interstate or foreign.” The petition, return and evidence disclose that a large per cent of its business in the state of New York is delivering freight and passengers from other states into this state, and receiving passengers and freight from this state for transportation to other states, yet as a corporation it keeps a large number of workmen, clerks and agents employed in this state, owns and uses in its business a large amount of real estate in this state, and leases and uses in its corporate business, and for the same use and purposes leases and occupies, valuable real estate in this state, keeps for the use of its corporate business large balances in banks in this state, and does other acts in the conduct of its corporate business, and it was suggested by the learned counsel for the defendant on the argument, that as between the state of New Jersey and New York the jurisdiction of Hew York extended to the centre of the Hudson river, the relator’s transportation line extended through the territorial jurisdiction of this state from, that point to the docks and slips in Hew York city, and that therefore all the business done by the relator in Hew York was carried by it through Hew York territory, and that the allegation of the petition that “ no part of relator’s line or of the line leased or operated by it is within the state of Hew York, and that the compensation which it receives is. entirely for transportation in states of the Union other than the state of Hew York, or transportation between the state of Hew York and other states of the Union,” is not sustained by the facts.

Ho point is made upon the defendant’s brief, and as the Hudson river is at the point where the relator’s line crosses a navigable stream, we will not stop to discuss that point. But independently of that suggestion, we think it sufficiently appears, as we have shown, that the sole business of the relator in the state is that of interstate commerce. As a great railroad corporation doing business in and between many states in the Union, with terminal facilities and property in the city of Hew York, it established offices, kept employees, made bank deposits, and in that manner facilitated its general interstate business, and thus took itself out of the taxing power of the state under chap. 542 of the Laws of 1880 and its amendments.

If this tax was aimed at the business of the relator transacted in this state other than that of commerce between different states, it is not in violation of the federal constitution and the power of this .state to tax it for the privilege of doing business has not- only been sustained by the state courts, but by the United States supreme court as well

In the People v. Home Ins. Co., 92 N. Y., 340-341, Ruger, J., says: “We have before seen that the state legislature had an undoubted right by virtue of its jurisdiction over corporations organized under its laws to levy such tax on their business and privileges aside from all property taxation as in its discretion it might deem just and proper in order to provide revenue for the state.”

In the same case on appeal to the United States supreme court, 134 U. S., 594, Field, J., says: “Ho constitutional objection lies in the way of the legislature prescribing any mode of measurement to determine the amount it will charge for the privilege it bestows.”

It is true that this was said in reference to the granting of a franchise, and the right to do business, to a domestic corporation, the same case being in the federal court on the question of the right to tax stock represented in government bonds. It is insisted by the relator that the United States supreme court in the case of Gloucester Ferry Co. v. Penn., 114 U. S., 196, is analogous to the case at bar and decisive of it.

In that case the sole business of the Ferry Co. was to carry passengers and freight across the Delaware river, from Gloucester, H. J., to Philadelphia, Penn. Under the laws of Pennsylvania, the state sought to tax the Ferry Company. There was no evideuce that the Ferry Company had any property, or did any business in the state of Pen'nsiyvania, and the court held that as the sole and exclusive business of the Ferry Company was to carry passengers and freight from one state to the other, it was clearly inter-state commerce, and its control was in the federal jurisdiction.

The business of the Ferry Company did not extend through several states, nor did it carry on a business • in the city of Philadelphia, and the case was therefore in that respect like the one at bar. In the federal courts it has been held that a license •cannot be charged in one state upon á drummer or peddler from another state, on the ground that such license is a restriction upon inter-state commerce, which belongs solely to the federal government.

But I have been referred to no case where that doctrine has been extended to corporations formed in one state and doing business in another except where the business is confined exclusively to inter-state commerce.

In the case of People v. Horn Silver Mining Co., 105 N. Y., 76; 6 St. Rep., 495, it was held that a foreign corporation organized under the laws of the Territory of Utah, for the mining and refining of silver, the business was all done in Utah and Chicago, but its products were sent to Hew York for further refining and sale ; it was held that it did not do a manufacturing business in Hew York so as to exempt it from taxation, but that as it was refining and selling here, it was doing business in the state so as to subject it to taxation under the law of 1880.

On appeal to the supreme court of the United States that court in affirming the judgment of the court of appeals uses this language. “ The objection that it (this tax), operated as a direct interference with interstate commerce, we do not think tenable. The tax is not levied upon articles imported nor is there any impediment to their importation. * * * The tax is only levied upon the franchise or business of the company.” . Thus holding that the tax may be imposed upon the business and at the same time holding that such a tax is not an undue interference by a state with inter-state commerce.

In the Western Union Telegraph Co. v. Mass., 125 U. S., 530; Mass. v. Western Union Telegraph Co., 141 id., 40; Pullman Car Co. case, id, 18; Maine v. Grand Trunk R. R. Co., 142 id., 217, the United States supreme court have upheld the right to tax companies doing business by the state authorities. It is true that the courts have in some instances been divided, and in some cases the decisions have been put upon the ground that a large part of the corporate property was in the state where the tax was imposed. In the case at bar it seems that the only actual business done by relator in this state was to receive and discharge freight and passengers carried between the states.

From the above references it is clear that- if the business of the relator transacted in this state is only an incident to its interstate carrying trade between this and other states, then it cannot be ■said that it is carrying on such a businesss within this state as to subject it to the taxing power of the state, and while it is difficult to determine the exact point at which the authority of the state ends, and the exemption under the federal authority commences, we are inclined to the opinion that the business transacted by the relator,in this state was not such a business carried on in this state as to bring it within the taxing power of the comptroller and that the writ of certiorari should, therefore, be sustained.

The assessment and order of the comptroller must be reversed, and the tax remitted to the relator, with costs.