In Matter of 436 W. 34th Street Corporation v. McGoldrick,288 N.Y. 346, decided herewith, we have construed New York City Local Law No. 80 of 1940, to impose the City's utility tax on a landlord's receipts from his incidental business activity of sub-metering electric current to his tenants. So construed, that Local Law is not, we have held, unconstitutional. In the present case we have for review the annulling, by the Appellate Division, Third Department, of a determination of the State Tax Commission that such receipts of a landlord from such sub-metering operations, are taxable under section 186-a of the Tax Law (Cons. Laws, ch. 60), as amended in 1941. As applied to this respondent landlord's sales of sub-metered electric current to the tenants of his "professional building," there is no substantial difference between the taxing provisions of the Local Law passed on in Matter of 436 W. 34th Street Corporation v. McGoldrick (supra) and section 186-a of the Tax Law. Although the Local Law separately describes as "vendors" those who sell electricity as an incident to other businesses, and the State statute uses no such terminology, nevertheless the 1941 amendments to the State statute, like the 1940 additions to the Local Law, tax, in clear language, every person "who sells gas, electricity * * *, regardless of whether such activities are the main business of such person or are only incidental thereto * * *." (L. 1941, ch. 137, § 2.) The language of the 1941 amendments to section 186-a and the elaborate "Declaration of Legislative Intent" which serves as a preamble to the amendments, makes it certain that the sub-metering receipts of landlords, like this petitioner-respondent, are made taxable. *Page 357
We have, however, in this case another question not presented by Matter of 436 W. 34th Street Corporation v. McGoldrick (supra). When the Legislature in 1941 amended section 186-a of the Tax Law in the manner above described, it was not content to bring sub-meterers within the fold for the future; it attempted to atone for past omissions by making the new provisions retroactive to 1937. This it sought to accomplish through a declaration that the 1941 amendments were to have the same force and effect as if enacted on May 7, 1937, the date when the original State utility tax law (L. 1937, ch. 321) first took effect. Under the circumstances we hold that this provision for full retroactivity "is so harsh and oppressive as to transgress the constitutional limitation." (Welch v. Henry,305 U.S. 134, 147.) We do not think this is a case where "adequate forewarning" answers the question.
"Whether a statute which by its express terms is retroactive will be sustained is usually a question of degree." (People exrel. Beck v. Graves, 280 N.Y. 405, 409.) The situation here is sufficiently like that in People ex rel. Beck v. Graves (supra) to require a similar result. The provisions of the 1941 amendments which make the newly-levied tax retroactive, all the way back to the birth of the utility tax, are invalid. There must be put to use, therefore, the saving clause of the 1941 amendments, which clause, looking to possible invalidity of the retroactive features, says that, in the event of a finding of such invalidity, the tax shall be applicable "to recent transactions since January first, nineteen hundred forty" (as to taxing "prior but recent" transactions, see Cooper v. UnitedStates, 280 U.S. 409, 411). This limited retroactivity is not so oppressive as to be unconstitutional.
The order of the Appellate Division should be modified and the determination of the State Tax Commission reinstated insofar as it involves taxes on transactions since January 1, 1940, otherwise such determination of the Tax Commission should be annulled, without costs.
The order of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed, without costs.