Peo. Ex Rel. Jewelers' Publishing Co. v. . Roberts , 155 N.Y. 1 ( 1898 )

The appellant is the publisher of a weekly paper known as "The Jewelers' Circular and Horological Review," and now seeks to be relieved from the franchise tax assessed by the comptroller, upon the ground that it is a manufacturing corporation within the meaning of the statute, and, therefore, exempt from the payment of the tax assessed. Upon the argument of this appeal it was contended that the publishing of a newspaper by a corporation, or a joint stock company, was manufacturing. An interesting discussion has taken place on this question in the courts of sister states, resulting in a conflict of views. While we have given the question some attention, we have reached the conclusion that we are not called upon to determine it in this case. Upon the assumption that the printing of a newspaper is manufacturing within the meaning of the statute, the relator would still be entitled to no relief. It does not own or operate any plant for the printing of its paper. The type is set and the paper printed by third persons at a price agreed upon, and no part of the work is done by the relator, farther than to have a foreman who overlooks and watches the work as it progresses in the hands of the contractor. This does not constitute the relator a manufacturer.

The comptroller, in taxing the relator, imposed the rate of one-quarter of a mill for each one per centum of the dividends declared upon its capital stock at its par value. It is now contended that the comptroller adopted an improper basis of assessment. The statute provides that "Every corporation * * * shall be liable to and shall pay a tax, as a tax upon its franchise or business, into the state treasury annually, to be computed as follows: If the dividend * * * declared * * * during any year ending with the first day of November, amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of one-quarter mill upon the capital stock for each one per centum of dividends so made or declared; or if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to six per centum upon the par value of said capital stock, then the tax to be at the rate of one and one-half mills upon each dollar of the valuation of the said capital stock, made in accordance with the provisions of the first section of this act." (L. 1880, ch. 542, as amended by L. 1890, ch. 522.) It will be observed that when the tax is based upon dividends, it is upon the capital stock at par value, but, when no dividends have been declared, it must be assessed upon the appraised capital. It appears to us that the meaning of this statute is clear. The distinction made between share stock and capital stock in other cases in the construction of other statutes is in this statute fully recognized. Capital stock on its par value is known in other cases as share stock, while appraised capital is known as capital stock. (People exrel. Singer Mfg. Co. v. Wemple, 78 Hun, 63; affirmed, 150 N.Y. 46;People ex rel. A.C. D. Co. v. Wemple, 129 N.Y. 558,564; People ex rel. Wiebusch and Hilger Co. v. Roberts,154 N.Y. 101.) Our conclusion, therefore, is that the relator is not exempt from the payment of the tax, and that the comptroller did not adopt an erroneous basis in levying the same.

The order appealed from should, therefore, be affirmed, with costs.

All concur, except O'BRIEN, J., not voting, and BARTLETT, J., not sitting.

Order affirmed.