I concur with Judge O'BRIEN as to that portion of the tax which was levied after the enactment of chapter 562, Laws 1894, for while this is an excise tax imposed on the corporation as authority for it to do business, the statute expressly prohibits the inclusion in the estimate of gross earnings for the basis of taxation "earnings derived from business which is of an interstate character." The tax for the years subsequent to 1894 seems to me to be levied on that basis, and upon no other.
As to so much of the tax, however, as was assessed upon relator for the years prior to 1894, and levied by virtue of section 6, chapter 361, Laws 1881, it seems to me the levy could stand under the authorities. That section authorizes a tax upon its corporate franchise and business in this state at the rate of five-tenths of one per centum upon the gross earnings within this state of said corporation or company or association. This court holds inPeople v. Equitable Trust Co. (96 N.Y. 388) that when such a tax is imposed on a domestic corporation it is a tax on its corporate franchise; *Page 202 when imposed on a foreign corporation it is a tax on its business, a distinction based on the fact that corporate franchises are only taxable within the jurisdiction which creates them, and where alone they can be said to have a situs. This holding is affirmed in terms in People ex rel. Penn. R.R. Co. v. Wemple (138 N.Y. 1, 8). Very recently we had before this court People ex rel. U.S. Aluminium P.P. Co. v. Knight (174 N.Y. 475) in which it is unanimously held that the capital of domestic corporations invested in letters patent, United States bonds or copyrights may be appraised for the purpose of ascertaining the amount of the franchise tax the same as other property. Judge VANN, in speaking of certain cases, says (174 N.Y. 482) that "they involve the principle that while a tax cannot be assessed upon property that is exempt by act of Congress, it may be imposed upon the franchise of a corporation to which such exempt property belongs and may be measured by the value thereof." Why does not the principle of that case apply to so much of this one as involves the tax prior to 1894? The state has no right to tax United States bonds, patent rights, copyrights or interstate commerce, but it may place an excise tax upon a domestic corporation for its right to do business as a corporation, and in measuring the amount of such tax there may be taken into consideration, as we hold in that case, the value of government bonds, patents or copyrights although non-assessable as such by the state. Why, therefore, may not be taken into consideration, in measuring the amount of an excise tax assessed as an authority for the corporation to do business in the state, the volume of interstate commerce business done by it?
But one answer to the question could result, it seems to me, from a careful reading of the statute of 1881 in the light of the authorities cited, but those of my associates that agree that the earnings of this corporation are of an interstate character are of the opinion that inasmuch as § 184 of the Tax Law, passed in 1894, provides that the comptroller shall settle the taxes levied under the act of 1881 for the two years immediately preceding 1894 by excluding the earnings of an *Page 203 interstate character, the legislature intended to prevent the collection of past taxes based on such earnings. As intention must be gleaned from the language of the statute it is difficult to reach that conclusion by the application of any of the rules of statutory construction inasmuch as the provision referred to embraces only the two years immediately preceding 1894. But as the legislature may have assumed that the taxes prior to that time had been collected I shall for the purpose of making a decision concur in the result reached by Judge O'BRIEN.