We think the proceedings of the commissioners should be affirmed, for the following reasons :
First. The relators are a corporation created by the laws of the state, and having their principal place of business in the city of New York. As a corporation their residence is in New York.
The ships included in the present assessment are registered at the port of New York, under and pursuant to the United States registry act, and the city of New York is their home port; they have and can have no other, and are not taxable elsewhere. Their situs is at the home port for all the purposes of taxation. In the case of Morgan agt. Parham, the supreme court of the United States have very emphatically settled these questions, and reaffirmed the case of Hays agt. The Pacific Mail Steamship Company, under which the relators escaped taxation on these or similar vessels in California (See Morgan agt. Parham, 16 Wallace, 471; Hays agt. The Pacific Mail Steamship Company, 17 Howard, 596).
But it is insisted that, under our statute, the property of the relators, to be taxable, must be physically within the territory of the state; and, therefore, it is not enough that its legal situs and ownership are here. We think this position not sound, for several reasons. Of course, ships at sea are not, in a strict sense, within the territory of the state in which they have their home port, but in legal contemplation they are themselves part of the territory (so to speak) of the *170country of which their owners are citizens or subjects; and they retain all the rights that flow from that fact while engaged in commerce between foreign ports, for undefined periods, without any interval of return to the home port.
But it is not, perhaps, upon this ground that they are deemed within this state, when owned by citizens of the state, for the purposes of taxation. It is rather because of the peculiar character of- the property, which, though it be used abroad in the business of the owner, does not blend with the business and commerce of any foreign state or territory. The business of the relators’ ships in the Pacific is all the while a part of the business carried on in Hew York, under which the charter of the company, whence the general management and direction emanate, and to which point returns of all results are made. The ownership and nature of the business control to establish the home port where the corporation resides as the situs of the ships themselves, and in legal contemplation we think the vessels used in the business, which have their home port under the law at Hew York, are within the jurisdiction and territory of the state within the meaning of the general statute declaring what property is taxable.
But for the decisions of the court when this case was before under consideration, we should deem this an immaterial question. ,
The relators, under the statute of 1857 (laws of 1857, chap. 456), are taxable only upon their capital stock, which is to be assessed at its actual value, with certain exceptions specifically named or referred to in the act.
The subject of taxation under this act is the capital stock of the company, and that is at all times within the state,' although, for .the purpose of conducting the business of the company, a portion of its capital may be invested in ships whose commerce is carried on in remote parts of the world. The question to which the commissioners were to look, under the law, was not the locus or situs of items of property *171owned by the corporation, but of the company itself, and of its capital stock, and they are in Hew York, both in law and in fact.
It would require a special exemption by statute to authorize the commissioners, in determining the actual value of the capital stock of the company, to strike out the value of property used in the general business of the company and contributory to the actual value of the capital stock, because its use was outside the state and the articles of property were therefore not territorially within the state. We think nothing of that kind was in contemplation under the act of 1857, which intended to create a special system of taxation applicable to corporations, and, sub modo, to modify all previous general laws; but this is not, perhaps, an open question.
In respect to the money invested in building the ships in Delaware, nothing was shown before the determination of the commissioners to require them to treat the ships in process of building as the property of the company. Before the motion for rehearing, the commissioners had made and filed with the comptroller their certificate.
The application for rehearing came too late; but, if it did not, the refusal to rehear is not a subject of review on this application.
The proceedings should be affirmed.
Daniels and Westbrook, JJ., concurred.