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VÒL. CXXXIV-38

Opinion of the Court.

terested, or over which she had any control. The words "in any wise entitled" are sufficient to cover not only property which she held in her own full right, but also property which she held in a limited right under her mother's will. The word "property" was the very word used by her mother in describing, in her will and codicil, the estate and interest which she had given to Mrs. Clemson. Thus, in clause 20 of the will of Mrs. Calhoun, which gives to Mrs. Clemson for life a share in the residue of the estate, she speaks of "the property" given to Mrs. Clemson in that clause and in the second clause of the will, the latter clause containing only a devise and bequest to Mrs. Clemson for life of certain real estate and personal property. Therefore, Mrs. Clemson, in using the words "the entire property and estate to which I am now in anywise entitled," must be regarded as referring to that in respect to which she had the power of disposition by the will of her mother. Otherwise, we have the case of a reference to legacies left to Mrs. Clemson under her mother's will, and to her power of disposing of them, which is meaningless unless the language of the devise and bequest which follows covers the property in regard to which she had such power of disposition. At the time of her death, in September, 1875, she had received all that she was entitled to receive from the estates of her sister and her brother, and there was nothing then left except the property which had come to her under her mother's will, namely, the interest in the bond and mortgage and the portrait of her grandmother.

The decree of the Circuit Court was right, and it is

Affirmed.

Statement of the Case.

HOME INSURANCE COMPANY v. NEW YORK STATE.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 1. Argued March 18, 19, 1890. Decided April 7, 1890.

A tax which is imposed by a state statute upon "the corporate franchise or business" of all corporations incorporated u er any law of the State or of any other State or country, and doing busines within the State, and which is measured by the extent of the dividends of the corporation in the current year, is a tax upon the right or privilege to be a corporation and to do business within the State in a corporate capacity, and is not a tax upon the privilege or franchise which, when incorporated, the company may exercise; and, being thus construed, its imposition upon the dividends of the company does not violate the provisions of the statute exempting bonds of the United States from taxation, 12 Stat. 346, c. 33, § 2, although a portion of the dividends may be derived from interest on capital invested in such bonds.

Such a tax is not in conflict with the last clause of the first section of the Fourteenth Amendment to the Constitution of the United States declaring that no State shall deprive any person within its jurisdiction of the equal protection of the laws.

The validity of a state tax upon corporations created under its laws, or doing business within its territory, can in no way be dependent upon the mode which the State may deem fit to adopt in fixing the amount for any year which it will exact for the franchise.

McCulloch v. Maryland, 4 Wheat. 316, 436; Weston v. City Council of Charleston, 2 Pet. 449; Henderson v. Mayor of New York, 92 U. S. 259; and Brown v. Maryland, 12 Wheat. 419, in nowise conflict with the points decided in this case; and the court fully assents to those cases, and has no doubt of their correctness in any particular.

THIS case was first heard at October term, 1886. On the 15th of November, 1886, it was affirmed by a divided court, and was reported in 119 U. S. 129, to which reference is made for the reporter's statement of the case at that hearing, including the text of the New York statute and the agreed case. On the 7th of February, 1887, on motion of the counsel for the plaintiff in error, that judgment was rescinded and annulled, and the cause restored to its place on the docket, to be heard by a full bench. 122 U. S. 636. With its present opinion the

Statement of the Case.

court handed down a statement of the case now made, which is as follows:

The plaintiff in error, The Home Insurance Company of New York, is a corporation created under the laws of that State. Its capital stock during the year 1881 was three millions of dollars, divided into thirty thousand shares of the par value of one hundred dollars each, all fully paid. In the months of January and July of that year a dividend of $150,000. was declared by the company, making together ten per cent upon the par value of its capital stock. A portion of that capital stock was invested in bonds of the United States, amounting, when the dividend was declared in July, 1881, and also on the first of November of that year, to $1,940,000.

By an act of the legislature of New York, passed May 26, 1881, c. 361, amending a previous act providing for the taxation of certain corporations, joint stock companies and associations, it was declared that every corporation, joint stock company or association, then or thereafter incorporated under any law of the State, or of any other State or country, and doing business in the State, with certain designated exceptions not material in this case, should be subject to a tax upon “its corporate franchise or business," to be computed as follows: if its dividend or dividends made or declared during the year ending the first day of November amount to six per cent or more upon the par value of its capital stock, then the tax to be at the rate of one-quarter mill upon the capital stock for each one per cent of the dividends. A less rate is provided where there is no dividend, or a dividend less than six per cent and also where the corporation, company or association has more than one kind of capital stock -as, for instance, common and preferred stock — and upon one of them there is a dividend amounting to six or more per cent and upon the other there is no dividend or a dividend of less than six per cent. The purpose of the act is to fix the amount of the tax each year upon the franchise or business of the corporation by the extent of dividends upon its capital stock, or, where there are no dividends, according to the actual value of the capital stock during

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Citations for Defendant in Error.

the year. We are concerned in this case, however, only with the tax where the amount is computed by the extent of the dividends.

The tax payable by the Home Insurance Company, estimated according to its dividends, under the above law of the State, aggregated $7500. The company resisted its payment, assuming that the tax was in fact levied upon the capital stock of the company, and contending that there should be deducted from it a sum bearing the same ratio thereto that the amount invested in bonds of the United States bears to its capital stock, and that the law requiring a tax without such reduction is unconstitutional and void. An agreed case was accordingly made up embodying a statement of the facts, between the company and the attorney general of New York representing the State, and submitted to the Supreme Court of the State. That court gave judgment in favor of the State against the company, which on appeal to the Court of Appeals of the State was affirmed. 92 N. Y. 328. The judgment of the latter court, having been remitted to the Supreme Court and entered there, the case is brought to this court for review on writ of

error.

Mr. Benjamin II. Bristow, for plaintiff in error, argued the case on his former brief, which is reported at length in 119 U. S. 133-143.

Mr. Charles F. Tabor, Attorney General of the State of New York, for defendant in error, argued the case on a brief which embodied the substance of the brief of his predecessor, Mr. O'Brien. 119 U. S. 143-147.

In addition to the cases cited under Point I in that brief, Mr. Tabor cited: State Tax on Railway Gross Receipts, 15 Wall. 284; Webber v. Virginia, 103 U. S. 344, 350; Mercantile Bank v. New York, 121 U. S. 138, 158; Kittanning Coal Co. v. Commonwealth, 79 Penn. St. 100; Philadelphia Contributionship v. Commonwealth, 98 Penn. St. 48; and, in addition to those cited under Point II: Commonwealth v. Delaware Division Canal Co., 123 Penn. St. 494.

Opinion of the Court.

Under the first point in his brief (not in the former brief) — that the decision of the Court of Appeals on the construction. of the constitution and statutes of New York will be followed by this court- Mr. Tabor cited: Elmwood v. Marcy, 92 U. S. 289; Fairfield v. Gallatin County, 100 U. S. 47; Louisville, New Orleans & Texas Railway v. Mississippi, 133 U. S. 587; Hamilton Company v. Massachusetts, 6 Wall. 632; Detroit City Railway v. Guthard, 114 U. S. 133; Phila delphia Fire Association v. New York, 119 U. S. 110.

Under the fourth point in his brief (also not in the former brief) that this court has in many cases indicated the restrictions, limitations and qualifications which are to be applied to the words: "nor shall any State deny to any person within its jurisdiction the equal protection of the laws,” showing clearly that they cannot be given the broad construction sought for them under the decision in San Mateo v. Southern Pacific Railroad, 13 Fed. Rep. 722- Mr. Tabor cited: Kirtland v. Hotchkiss, 100 U. S. 491; Memphis Gas Co. v. Shelby County, 109 U. S. 398; Barbier v. Connolly, 113 U. S. 27, 32; Soon Hing v. Crowley, 113 U. S. 703; Missouri Pacific Railroad v. Humes, 115 U. S. 512; Davenport Bank v. Davenport, 123 U. S. 83; Missouri Railway Co. v. Mackey, 127 U. S. 205; Minneapolis Railway Co. v. Beckwith, 129 U. S. 26; Bank of Redemption v. Boston, 125 U. S. 60.

On the rules governing the construction of statutes, he cited: Amy v. Watertown (No. 1), 130 U. S. 301; Parsons v. Bedford, 3 Pet. 433; Grenada County Supervisors v. Brogden, 112 U. S. 261; Presser v. Illinois, 116 U. S. 252, 269; Ogden v. Saunders, 12 Wheat. 213, 270.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

The contention of the plaintiff in error is that the tax in question was levied upon its capital stock, and therefore invalid so far as the bonds of the United States constitute a part of that stock. If that contention were well founded there would be no question as to the invalidity of the tax.

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