143 U.S. 305
12 S.Ct. 403
36 L.Ed. 164
HORN SILVER MIN. CO.
PEOPLE OF STATE OF NEW YORK.
February 29, 1892.
The defendant below, the plaintiff in error here, the Horn Silver Mining Company, is a corporation created under the laws of the territory of Utah. The present action is brought by the people of the state of New York, upon the allegation that it was doing business within the state in 1881 and 1882, to recover certain taxes alleged to be chargeable on its 'corporate franchise or business' for those years, and the penalty prescribed for their non-payment in each year.
By the act of the legislature of New York, approved May 26, 1881, amending a previous act providing for levying taxes for the use of the state upon certain corporations, joint-stock companies, and associations, it was declared that every corporation, joint-stock company, or association then or thereafter incorporated or organized under any law of the state, or of any other state or country, and doing business in the state, with certain specified exceptions not important in this case, should be subject to a tax 'upon its corporate franchise or business,' to be computed in a mode specified, which was by a certain percentage upon its capital stock measured by the dividend on the par value of that stock, or, where there were no dividends, or its dividends were less than a certain percentage upon the par value of the capital stock, then according to a certain percentage upon the actual value of the capital stock during the year.
The complaint in the action alleges the facts necessary to charge the corporation under this act for both years; that the amount of tax due pursuant to its provisions for the year ending on the 1st day of November, 1881, was $7,500, and the additional sum of $1,500 as a penalty for the delay of the company in paying the tax for two years after it became due; and that the amount of taxes due for the year ending on the 1st day of November, 1882, was $30,000, with the further sum of $3,000 as a penalty of 10 per centum for the delay of the defendant in paying the same.
The defendant answered the various allegations of the complaint, denying them so far as they charge liability the people of New York, and setting up that it had been at all times a manufacturing corporation organized and existing under the laws of Utah; that it had never exercised any franchises or powers under the laws of New York; that its capital stock of $10,000,000 was issued in payment for real estate in Utah and Illinois, which consists entirely of mining property and improvements thereon, and a refinery; that during the years ending November 1, 1881 and 1882, it carried on in the state of New York the business of manufacturing bars of silver from Utah and Illinois into standard bars; that said business constituted but a small portion of its entire business, and was the only business carried on in the state of New York, except its financial business and correspondence; that its capital stock was only partially employed in New York; and that it paid taxes both in Utah and in Illinois. It insisted that the statute upon which the action was brought, was invalid and in operative as to it because of the facts set forth, and because it established an unjust and unequal system of taxation, and fixed the amount of tax wholly without regard to the extent of the corporate franchises exercised by it in the state, and withour regard to the amount of business done within the state, or the amount of capital employed or the amount of its capital stock held in the state, and the extent of the protection and benefits derived from its laws and agencies, and because it sought to tax property and persons not within the jurisdiction of the state or in any way subject to its authority, and violated the principles of equality and uniformity. It also insisted that the taxation attempted was, in effect, the taking of private property without just compensation, the denial to defendant of the equal protection of the laws, and a regulation of commerce among the several states, and taxing property and business without the jurisdiction of the state of New York. By consent of parties, the case was referred to a referee to hear and determine all the issues of law and fact therein. The referee found that the defendant was a corporation created and organixed under the laws of the territory of Utah, and was at all times mentioned in the complaint doing business in the state of New York, and liable to be taxed on its corporate business under the provisions of section 3 of the act of New York above cited. He also found, in substance, that the stock and capital of the defendant were properly appraised, and the amount of the tax was assessed in conformity with the provisions of that act, and that, accordingly, the sums above mentioned, amounting to $41,250, were due; and he directed a judgment to be entered therefor in favor of the plaintiff.
The referee also found that the defendant paid taxes, both in the territory of Utah and in the state of Illinois, in the years 1881 and 1882, and that the greater part of its business was out of the state of New York, as well as the greater part of the capital used in its business.
Upon the findings of the referee judgment was entered in the supreme court of the state for the amount reported, and the case, being taken to the court of appeals, was there affirmed. 11 N. E. Rep. 155. Being then remitted to the supreme court, and entered there, the case was brought, on a writ of error, to this court.
Julien T. Davies and Edward L. Short, for plaintiff in error.
[Argument of Counsel from pages 308-312 intentionally omitted]
Chas. F. Tabor, Atty. Gen., for the People.
Mr. Justice FIELD delivered the opinion of the court.
A corporation being the mere creature of the legislature, its rights, privileges, and powers are dependent solely upon the terms of its charter. Its creation (except where the corporation is sole) is the investing of two or more persons with the capacity to act as a single individual, with a common name, and the privilege of succession in its members without dissolution, and with a limited individual liability. The right and privilege, or the franchise, as it may be termed, of being a corporation, is of great value to its members, and is considered as property separate and distinct from the property which the corporation itself may acquire. According to the law of most states, this franchise, or privilege of being a corporation is deemed personal property, and is subject to separate taxation. The right of the states to thus tax it has been recognized by this court and the state courts in instances without number. It was said in Delaware Railroad Tax, 18 Wall. 206, 231, that 'the state may impose taxes upon the corporation as an entity existing under its laws, as well as upon the capital stock of the corporation or its separate corporate property. And the manner in which its value shall be assessed, and the rate of taxation, however arbitrary or capricious, are mere matters of legislative discretion;' except. we may add, as that discretion is controlled by the organic law of the state. And, as we there said also, 'it is not for us to suggest in any case that a more equitable mode of assessment or rate of taxation might be adopted than the one prescribed by the legislature of the state. Our only concern is with the validity of the tax. All else lies beyond the domain of our jurisdiction.'
The granting of the rights and privileges which constitute the franchises of a corporation being a matter resting entirely within the control of the legislature, to be exercised in its good pleasure, it may be accompanied with any such conditions as the legislature may deem most suitable to the public interests and policy. It may impose as a condition of the grant, as well as also of its continued exercise, the payment of a specific sum to the state each year, or a portion of the profits or gross receipts of the corporation, and may prescribe such mode in which the sum shall be ascertained as may be deemed convenient and just. There is no constitutional inhibition against the legislature adopting any mode to arrive at the sum which it will exact as a condition of the creation of the corporation or of its contimued existence. There can be therefore no possible objection to the validity of the tax prescribed by the statute of New York, so far as it relates to its own corporations. Nor can there be any greater objection to a similar tax upon a foreign corporation doing business by its permission within the state. As to a foreign corporation,—and all corporations in states other than the state of its creation are deemed to be foreign corporations,—it can claim a right to do business in another state, to any extent, only subjedt to the conditions imposed by its laws.
As said in Paul v. Virginia, 8 Wall. 168, 181,'the recognition of its existence even by other states, and the enforcement of its contracts made therein, depend purely upon the comity of those states,—a comity which is never extended where the existence of the corporation or the exercise of its powers is prejudicial to their interests or repugnant to their policy. Having no absolute right of recognition in other states, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely, they may restrict its business to particular localities, or they may exact such security for the preformance of its contacts with their citizens as, in their judgment, will best promote the public interest. The whole matter rests in their discretion.'
This doctrine has been so frequently declared by this court that it must be deemed no longer a matter of discussion, if any question can ever be considered at rest.
Only two exceptions or qualifications have been attached to it in all the numerous adjudications in which the subject has been considered, since the judgment of this court was announced more than a half century ago in Bank v. Earle, 13 Pet. 519. One of these qualifications is that the state cannot exclude from its limits a corporation engaged in interstate or foreign commerce, establishd by the decision in Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 12. The other limitation on the power of the state is where the corporation is in the employ of the general government,—an obvious exception, first stated, we think, by the late Mr. Justice BRADLEY in Stockton v. Railroad Co., 32 Fed. Rep. 9, 14. As that learned justice said, 'if congress should employ a corporation of ship-builders to construct a man-of-war, they would have the right to purchase the necessary timber and iron in any state of the Union.' And this court, in citing this passage, added, 'without the permission and against the prohibition of the state.' Mining Co. v. Pennsylvania, 125 U. S. 181, 186, 8 Sup. Ct. Rep. 737.
Having the absolute power of excluding the foreign corporation, the state may, of course, impose such conditions upon permitting the corporation to do business within its limits as it may judge expedient; and it may make the grant or privilege dependent upon the payment of a specific license tax, or a sum proportioned to the amount of its capital. No individual member of the corporation, or the corporation itself, can call in question the validity of any exaction which the state may require for the grant of its privileges. It does not lie in any foreign corporation to complain that it is subjected to the same law with the domestic corporation. The counsel for the appellant objects that the statute of New York is to be treated as a tax-law, and not as a license to the corporation for permission to do business in the state. Conceding such to be the case, we do not perceive how it in any respect affects the validity of the tax. However it may be regarded, it is the condition upon which a foreign corporation can do business in the state, and in doing such business it puts itself under the law of the state, however that may be characterized.
The only question, therefore, open to serious consideration in this case is one of fact: Did the Horn Silver Mining Company do business as a corporation within the state? The referee found such to be the fact, as a conclusion from many probative circumstances in the case. That finding was never set aside, but stands approved by the courts of New York. If the correctness of the conclusion could be questioned, and held not justified by the facts in evidence,—and they should be considered as showing only transactions of interstate commerce, and not business in the state independently of such commerce,—it would be impossible to overcome the force of the answer of the defendant, in which it alleges that in the years 1881 and 1882 it was a manufacturing company carrying on manufactures within the state of New York. The admission is conclusive that the corporation was engaged in business in the state in those years, though, we are clear, not in such a business as rendered it a manufacturing corporation exempt from the tax prescribed by the statute.
To dispose of the position that the plaintiff in error was a manufacturing corporation, and therefore excepted from taxation under the statutes cited, it is only necessary to refer to the articles of association of the company. By them it appears that it was organized to conduct the business of buying, selling, leasing, and operating mines and mining claims in the territory of Utah, and smelting, reducing, and refining works there and elsewhere; of conducting a general mining, milling, and smelting business in all its branches, including buying and selling mineral ores and bullion; of carrying on a general mercantile business by buying and selling such goods, merchandise stores, and miners' supplies as are usually kept in and required by the wants of a mining camp or settlement; of building and operating all such roads, tramways, and transportation routes as may be convenient in transporting the products of its business or procuring supplies; of purchasing, hiring, and holding all such real and personal property, wherever situate, as may be required in carrying on any of its business, and, when no longer required for business purposes, of leasing, selling, or exchanging the same; and generally to do all acts and things incidental to a general mining business, or to any of the aforesaid pursuits. They also declare that it was primarily formed for the immediate purpose of working and developing the esteate, property, and premises known as the 'Horn Silver Mine,' and the treatment and reduction of the ores and metals therein contained. There is in the business thus detailed nothing that would characterize the corporation as a manufacturing company, and in no proper sense was it engaged in a manufacturing business within the state. The bullion taken by the company from its mines was shipped to Chicago, and, after being refined and the silver separated from the lead, it was forwarded to the United Statesassay office in the city of New York, where it had an office, not for occasional business transactions, but where its transfer books were kept, its dividends declared and paid, and other business done by it such as is usually performed by corporations where their principal office of business is situated. It is true, the greater part of the business of the company was done out of the state, and the greate, part of its capital was also without it, but the statute of New York does not require that the whole business of a foreign corporation shall be done within the state in order to subject it to the taxing power of the state. It makes, in that respect, no difference between home corporations and foreign corporations, as to the franchise or business of the corporation upon which the tax is levied, provided it does business within the state, as such corporation.
There seems to be a hardship in estimating the amount of the tax upon the corporation, for doing business within the state, according to the amount of its business or capital without the state. That is a matter, however, resting entirely in the control of the state, and not a matter of federal law, and with which, of course, this court can in no way interfere.
Since this tax was levied, the law of the state has been altered, and now the tax upon foreign corporations doing business in the state is estimated by the consideration only of the capital employed within the state. It is said that against nearly all other foreign corporations, except this one, the taxes upon their franchises have been computed upon the basis of the capital employed within the state; but as to that we can only repeat what was said in the court of appeals of the state, that, if this be true, the defendant may have reason to complain of unjust discrimination, and may properly appeal for relief to the legislature of the state, but that it is not within the power of the court to grant any relief, however great the hardship upon it.
The extent of the tax is a matter purely of state regulation, and any interference with it is beyond the jurisdiction of this court. The objection that it operates 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 products of the mine can be brought into the state, and sold there without taxation, and they can be exhibited there for sale in any office or building obtained for that purpose; the tax is levied only upon the franchise or business of the company.
Mr. Justice HARLAN dissented.