A careful consideration of this appeal leads me to concur with the chief judge. Chapter 542 of the Laws of *Page 7 1880, as amended by chapter 501 of the Laws of 1885, prescribes, in its third section, that every corporation organized under the laws of any other state, "and doing business in this state," shall be subject to a tax. Section eleven prescribes that "the amount of capital stock which shall be the basis for tax under the provisions of section three of this act * * * shall be the amount of capital stock employed within this state." It is too clear for argument that it is not sufficient that a foreign corporation shall be merely doing business in this state, in order to subject it to taxation, and the condition must exist that its capital stock, or some part of it, is employed within this state. If that condition is not met by the facts of the case, then the basis, which the law assumes as justifying the imposition of the tax, does not exist. This proposition is not disputed; but it is argued that in the present case the relator did employ its capital within this state, because its business was done here, viz., the business of looking after the investment made of its capital in the purchased shares of stock of the Illinois corporation. Whether the relator was doing business here, or what that business may have been, I do not consider important to discuss. The fact is that the whole capital of the relator had already been employed in the purchase of the shares of the Illinois corporation, and remained so invested. All that was done by the relator at its New York office was to receive and distribute the dividends, or income, from the Illinois investment. The intention of the legislature was, undoubtedly, to compel foreign corporations, when employing their capital within this state in the conduct of their business, to pay a tax in return for the privilege of doing so. Such a policy is justifiable and should be given the fullest effect by the courts; but, unless the condition in fact exists, which the statute contemplates, there can be no ground upon which to predicate a liability to assessment.
I think it would be straining the law beyond its capacity for construction to hold, where there has been an employment of its capital stock by a foreign corporation, as in the present case, in a business investment without the state, that in the *Page 8 maintenance of an office within the state for purposes of convenience in the distribution of the money proceeding from its foreign investment, there had been an employment of capital here. Its capital is not here in any sense. The relator may be here itself for many corporate purposes; but it was not here for any purpose connected with an employment of its capital stock.
I think this case fairly falls under the authority of theHarlan Hollingsworth Case (139 N.Y. 68), and I agree with the chief judge in his reasoning and in the conclusion that the determination of the comptroller was erroneous and that there should be a reversal of the order appealed from.