This is a certiorari proceeding to review assessments of taxes against the relator, made pursuant to section 186 of chapter 62 of the Laws of 1909, being the Tax Law (Consol. Laws, chap. 60), based upon its gross earnings, and upon excess dividends declared during the years ending October 31, 1911, October 31, 1913, October 31, 1914, and October 31, 1915. The law under which the tax was assessed reads as follows: “ Franchise tax on water-works companies, gas companies, electric or steam heating, lighting and power companies. Every corporation, joint-stock company or association formed for supplying water or gas, or for electric or steam heating, lighting or power purposes, shall pay to the State for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in this State, an annual tax which shall be five-tenths of one per centum upon its gross earnings from all sources within this State, and three per centum upon the amount of dividends declared or paid in excess of four per centum upon the actual amount of paid-up capital employed by such corporation, joint-stock company or association. The term ‘ gross earnings ’ as used in this section means all receipts from the employment of capital without any deduction.” Under protest relator paid to the State Treasurer $7,994.60, being five-tenths of one per centum upon its total gross earnings of $1,598,921.06 during the years given, and $4,964.46, being three per centum upon the amount of dividends in excess of four per centum paid out during such years.
The relator is a foreign corporation organized under the laws of the State of Pennsylvania. It produces, and purchases natural gas produced, from the natural gas fields of the State of Pennsylvania, and transports and distributes *38the same, through a system of pipe lines, to consumers in the State of New York. It produces no gas within the State of New York, and neither purchases, sells nor distributes any gas so produced, but deals exclusively in natural gas piped from Pennsylvania. All of the gas distributed by it reaches its consumers in the course of a continuous, uninterrupted transportation, directly from the Pennsylvania gas fields to the New York buildings where the same is burned. From the time that the gas leaves the fields to the moment of its ignition and consumption, it remains a subject of interstate commerce. (Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229; Matter of Pennsylvania Gas Company, 184 App. Div. 556.) We have, therefore, a case in which the gross earnings and dividends taxed through percentage assessments thereon, were derived from interstate commerce.
A State may impose upon a corporation of its own creation a tax or charge for a corporate franchise bestowed, and may measure the charge by the volume of the capital of its corporate creature however and whenever that capital may be invested. In Home Insurance Co. v. New York (134 U. S. 594), a New York corporation under a New York statute, for the privilege of doing business in a corporate capacity, was required to pay a franchise tax equal to a certain per cent of its capital stock. Although the greater part of the capital of the corporation was invested in non-taxable United States bonds, it was nevertheless held that the tax was properly measurable thereby. Mr. Justice Field, writing for the court, said: “No constitutional objection lies in the way of a legislative body prescribing any mode of measurement to determine the amount it will charge for the privileges it bestows.” In Kansas City Railway v. Kansas (240 U. S. 227) a railroad corporation organized under the laws of Kansas was held to be subject, under a law of Kansas exacting license fees from domestic corporations, to a tax measured by a percentage upon its corporate capital, though that capital was invested in railways extending into several States. Mr. Justice Hughes said: “ In the present case, the tax is not laid upon transactions in interstate commerce, or upon receipts from interstate commerce either separately or intermingled with other receipts. It does not fluctuate with the volume *39of interstate business. It is not a tax imposed for the privilege of doing an interstate business. It is a franchise tax — on the privilege granted by the State of being a corporation.” We are dealing here with a tax upon a foreign corporation, not a domestic corporation, and, therefore, not with a franchise tax.
Whether a State may exact a license fee, occupational or excise tax from a foreign corporation, for the privilege of doing business within its borders, to be measured in part by a percentage upon capital employed by it beyond the boundaries of the taxing State, or in interstate commerce, is a question of some difficulty which has been variously answered. The cases which hold such a tax to be permissible are grounded upon the proposition that a State, having the absolute right to exclude foreign corporations from doing business within its borders, may exact, for the privileges granted them, whatever it chooses, measured by any formula which it may select. In Paul v. Virginia (8 Wall. 168) it was said of the States: “They may exclude the foreign corporation entirely; they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The. whole matter rests in their discretion.” In Horn Silver Mining Co. v. New York (143 U. S. 305) a tax assessed under a New York statute for the privilege of doing business within that State against a mining corporation employing its capital chiefly in the State of Utah, on the basis of a percentage upon its entire capital, was held to be legal. In this case, however, it was said by Mr. Justice Field that the following qualification existed in respect to taxing foreign corporations for doing business within the borders of the taxing State: “ One of these qualifications is that the State cannot exclude from its limits a corporation engaged in interstate or foreign commerce.” In People v. Equitable Trust Co. (96 N. Y. 388) it was held that under a statute of the State of New York a percentage tax upon all the capital of a foreign corporation, employing its capital chiefly in other States, was properly imposed for the privilege conferred upon it of doing business within the State of New York. The court in that case *40remarked that the tax thus imposed was in some respects “ arbitrary, oppressive and unjust.” It may be observed that since this decision our statutes have been amended so that the tax under consideration in that case is now measured by capital employed solely within the State. (Laws of 1909, chap. 62, § 182.) In New York State v. Roberts (171 U. S. 658) the statute considered in People v. Equitable Trust Co. (supra) was again under consideration, and the same conclusion as to its validity was reached. The same holding seems also to have been made in Baltic Mining Co. v. Massachusetts (231 U. S. 68). On the other hand, it was held in Leloup v. Port of Mobile (127 U. S. 640) that a telegraph corporation doing business in the various States of the Union could not be penalized for doing in the State ■ of Kansas an intrastate and interstate business, when it had not paid a license tax under the laws of that State therefor. Mr. Justice Bradley said: “ The question is squarely presented to us, therefore, whether a State, as a condition of doing business within its jurisdiction, may exact a license tax from a telegraph company, a large part of whose business is the transmission of messages from one State to another,” and “ Ordinary occupations are taxed in various ways, and, in most cases, legitimately taxed. But we fail to see how a State can tax- a business occupation when it cannot tax the business itself. Of course, the exaction of a license tax as a condition of doing any particular business, is a tax on the occupation; and a tax on the occupation of .doing a business is surely a tax on the business.” In Allen v. Pullman Co. (191 U. S. 171) a license tax assessed, pursuant to a statute, against a sleeping car corporation, for the privilege of doing business within a State, on a basis of the cars employed by it within the State, was held illegal. In Western Union Telegraph Co. v. Kansas (216 U. S. 1, 34) the State of Kansas sought to enjoin a telegraph company, doing business in the various States of the Union, from maintaining any offices in that State because of its failure to pay to the State a fee to be determined by a percentage upon its entire capital stock. Mr. Justice Harlan, writing for the court, answered in the negative a question which he propounded as embodying the issue in the case. “ Whatever may be the extent of the State’s authority over *41intrastate business, was it competent for the State to require that the telegraph company — which surely had the right to enter and remain in the State for interstate business — as a condition of its right to continue doing domestic business in Kansas should pay, in the form of a fee, a specified per cent of its capital stock representing the interests, property and operations of the company not only in Kansas, but throughout the United States and foreign countries? ” If, as was held in this case, and in Leloup v. Port of Mobile (supra), a telegraph company doing both an intrastate and interstate business, could not be excluded from maintaining offices within the State where such business was done, for failure to pay a license fee for doing intrastate business therein, how then could this relator be excluded from conducting an interstate business within this State? And if it could not be so excluded, how could it be charged for the privilege of doing such business herein when that privilege is enjoyed as a matter of right?
When we come to the question whether a license fee, occupational tax, or excise tax, measured by the gross receipts of a foreign corporation engaged in interstate commerce, can be exacted from such a corporation for the privilege of doing business within a particular State, we find a less difficult problem. Such a tax clearly falls directly upon a subject of interstate commerce, and, therefore, upon interstate commerce itself. It fluctuates with the volume of interstate business, with the rise and fall in prices of commodities shipped between States, and when such commodities are sold it immediately attaches to the proceeds, and seizes a fractional portion thereof. That a tax so measured is not constitutional has been held almost without exception. In Fargo v. Michigan (121 U. S. 230), a percentage tax imposed by a State on the gross receipts of a transportation company employing cars for interstate transportation was held to be illegal. In Philadelphia Steamship Co. v. Pennsylvania (122 U. S. 326) a percentage tax imposed by a State upon the gross receipts of a steamship company plying between States was held to be illegal. In Ratterman v. Western Union Telegraph Company (127 U. S. 411) a percentage tax imposed by a State upon the receipts of a telegraph company engaged in interstate commerce was held to be illegal. In Lyng v. *42Michigan (135 U. S. 161) a tax upon sales of liquor at wholesale while remaining the subject of interstate commerce was held to be illegal. In Maine v. Grand Trunk R. Co. (142 U. S. 217) the holding in the case of Philadelphia Steamship Co. v. Pennsylvania (supra) was approved. In Galveston, Harrisburg, etc., R. Co. v. Texas (210 U. S. 217) it was said of the same case: “ In Philadelphia & Southern S. S. Co. v. Pennsylvania, 122 U. S. 326, it was decided that a tax upon the gross receipts of a steamship corporation of the State, when such receipts were derived from commerce between the States and with foreign countries, was unconstitutional. We regard this decision as unshaken, and as stating established law.” In that case a tax imposed by a State upon all railway companies, which was equal to one per cent of their gross receipts, was held to be illegal. In Oklahoma v. Wells, Fargo & Co. (223 U. S. 298) it was held that a tax on gross receipts from all sources, when the corporation taxed did both an interstate and an intrastate business, was illegal. In Minnesota Rate Cases (230 U. S. 400) Mr. Justice Hughes said: “ Thus, thStates cannot tax interstate commerce, either by laying the tax upon the business which constitutes such commerce or the privilege of engaging in it, or upon the receipts, as such,. derived from it.” In Kansas City Railway v. Kansas (240 U. S. 227) it was said by Mr. Justice Hughes: “ It must be assumed, in accordance with repeated decisions, that the State cannot lay a tax on interstate commerce ' in any form/ by imposing it either upon the business which constitutes such commerce or the privilege of engaging in it, or upon the receipts as such derived from it.” In the case of Crew Levick Co. v. Pennsylvania (245 U. S. 292) a statute of the State of Pennsylvania which required every wholesale vender of goods, wares and merchandise to pay a tax of one-half mill on every dollar of gross business transacted annually was held to be unconstitutional. Mr. Justice Pitney, writing for the court, said: “ It bears no semblance of a property tax, or a franchise tax in the proper sense; nor is it an occupation tax except as it is imposed upon the very carrying on of the business of exporting merchandise. It operates to lay a direct burden upon every transaction in commerce by withholding, for the use of the State, a part of every dollar received in such trans*43actions.” The language thus used is singularly applicable to the present discussion.
It may be said in the case before us that the tax imposed is not such a tax, for the reason that the statute imposing it denominates it a “ Franchise tax,” and imposes it upon a corporation “ for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in this State.” In nearly all the cases above cited, which deal with taxes measured by gross receipts, the taxes were expressly imposed for the privilege of doing business within the State where laid. The suggestion finds its answer in Galveston, Harrisburg, etc., R. Co. v. Texas (supra) where Mr. Justice Holmes said: “ Neither the State courts nor the Legislatures, by giving the tax a particular name or by the use of some form of words, can take away our duty to consider its nature and effect. If it bears upon commerce among the States so directly as to amount to a regulation in a relatively immediate way, it will not be saved by name or form.” And in Kansas City Railway v. Kansas (240 U. S. supra), where Mr. Justice Hughes says: “ And, further, in determining whether a tax has such a direct relation to interstate commerce as to be an exercise of power prohibited by the commerce clause, our decision must regard the substance of the exaction — its operation and effect as enforced — and cannot depend upon the manner in which the taxing scheme has been characterized.”
It is contended that this court, having held in Matter of Pennsylvania Gas Company (184 App. Div. 556) that the charges of relator for gas sold to customers in the State of New York are subject to regulation by a Public Service Commission of the State, must necessarily hold that the relator is subject to taxes upon its gross receipts derived from such charges. This argument fails to note the distinction between local regulation of interstate commerce, permissible in certain instances, and local taxation of interstate commerce, which is never permissible. This court rested its decision in the case referred to, among other authorities, upon Port Richmond Ferry v. Hudson County (234 U. S. 317), where it was held that local authorities in the State of New Jersey could, under a statute of that State, regulate the fares charged *44for passengers by a ferry company plying between Bergen Point, N. J., and Staten Island, N. Y., for trips to and fro between the States. The court stated that the interstate commerce involved was of a character, in default of congressional action, to permit and require local regulations of rates. It, nevertheless, made the following statement: “ It necessarily follows that whatever may properly be regarded as a direct burden upon interstate commerce, as conducted by ferries operating between States, it is beyond the competency of the States to impose. This was definitely decided in Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196.” In the case thus referred to a tax imposed upon interstate ferries, on the basis of their corporate stock, was held to be illegal, the court saying: “ It [the ferry] must, therefore, be conducted without the imposition by the States of taxes or other burdens upon the commerce between them. Freedom from such impositions does not, of course, imply exemption from reasonable charges, as compensation for the carriage of persons, in the way of tolls or fares.” The reasons advanced in these authorities, on the one hand justifying local regulation, and on the other forbidding local taxation, of interstate commerce, in an identical instance, apply with full force to the cases of taxation and regulation involving this relator which we have considered.
In so far, therefore, as the assessments consistéd of sums determined by a percentage upon the gross earnings of the relator they were illegal. In arriving at this conclusion it is not necessary to determine whether “ gross earnings from all sources within this State,” as used in section 186 of the Tax Law, include “ gross earnings,” which, though received within the State, actually have their source in interstate commerce. If they are so included we have an unconstitutional act authorizing a tax directly upon interstate commerce. If they are not so included, the assessments are illegal because not within the statute. In so far as the assessments consist of sums determined by a percentage upon excess dividends, it is unnecessary here to determine whether they, are to be classed as percentage taxes upon capital, which in the case of a corporation doing both an intrastate and interstate business might be constitutional, or as taxes upon gross earnings, which would clearly be unconstitutional for the *45reason, well recognized in the decisions, that neither one form of tax nor the other could be exacted from this relator, a foreign corporation doing interstate business exclusively and having within this State property and agents exclusively engaged in the furtherance of that business. (People ex rel. Pennsylvania R. R. Co. v. Wemple, 138 N. Y. 1; People ex rel. Connecting Terminal R. R. Co. v. Miller, 178 id. 194; International Text Book Co. v. Tone, 220 id. 313.)
For all these reasons the determination should be annulled.
Woodward, J., concurred.
Determination confirmed, with fifty dollars costs and disbursements.