Hyperlawhypertext legal database People ex rel. New York Phonograph Co. v. Rice 11 N.Y.S. 249

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People ex rel. New York Phonograph Co. v. Rice

11 N.Y.S. 249 Court N.Y. Gen. Term Decision date 1890-09-25 English

Delivered by Learned, P. J.

Contents

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p. 249
People ex rel. New York Phonograph Co. v. Rice.
(Supreme Court, General Term, Third Department.
September 25, 1890.)

Headnote

Corporations—Consolidation—Incorporation Tax.
A corporation, formed by the consolidation of previously existing corporations is liable to the tax of % of 1 per cent, on the amount of its capital stock, required by Laws K. Y. 1886. c. 143, § 1, to be paid on filing incorporation papers by “every corporation * * * incorporated by or under any general or special law of this state, having capital stock divided into shares, ” though each of the corporations so consolidated paid such tax on its own incorporation.
Appeal from special term, Albany county.
Application by The Hew York Phonograph Company tor a writ of mandamus to Prank Bice, secretary of state, commanding him to-file in his office
p. 250
certain papers for the consolidation of two corporations. From an order denying the application the relator appeals.
Argued before Learned, P. J., and Landon and Mayham, JJ.
Noah Davis and Adolph L. Pincoffs,, for appellant. Isaac H. Maynard for respondent.

Two corporations, the Ne.w York Phonograph Company and the Metropolitan Phonograph Company, were organized under the manufacturing act of 1848, and its amendments; the former for 50 years from October 4, 1888; the latter for 50 years from February 5, 1889. Each paid, on its organization, the tax of of 1 per cent. Upon its capital, pursuant to-chapter 143, Laws 1886. They entered into an agreement of consolidation in pursuance of chapter 960, Laws 1867. The name of the company thus to be formed is the New York Phonograph Company. Its capital is the same as the aggregate of the two consolidating companies. Its term of existence, 50 years from October 4, 1888. The consolidating companies presented to the secretary of state the requisite papers to be filed, as provided by the statute. The secretary refused to file them on the ground that the tax of ¿ of 1 per cent, on the capital of the company to be formed had not been paid. This present proceeding is for a mandamus to compel the filing. The motion for a mandamus was denied by the special term, and the relator appeals.

The question here involved arises under section 1, c. 143, Laws 1886. “Every corporation * * * incorporated by or under any general or special law of this state, having capital stock divided into shares, shall pay to the state treasurer, for the use of the state, a tax of one-eighth of one per centum, ” etc. There is no doubt that the corporation formed (or to be formed) by the aforesaid consolidation agreement has a capital stock divided into shares. Nor is there any doubt that it is incorporated (or to be incorporated) under a general law of the state. The right of the consolidated body to be a corporation comes from the law of the state permitting the consolidation. Without such law the two companies could not consolidate. And that law, calling the consolidated body “the new company,” specifies, in section 4, the corporate powers which it shall have. It is too plain for argument that, without such law, an agreement of consolidation would not create any body having corporate powers, but would be invalid. Hence it must be that the corporation is formed (or to be formed) under a general law of the state. But it is urged that the two consolidating corporations were corporate bodies, in full and vigorous life, entitled to their franchises which they had obtained from the state, and for which they had paid a tax, and that the new body is only a union of the two with no new corporate rights, and therefore liable to no new tax. It is true that the two consolidating bodies were corporations in full life, until they formed (or should form) the new corporation. Then they ceased (or will cease) to exist. It was for this very purpose that they executed the agreement; the purpose to end their own existence and to form a new person. Whenever they form the new corporation, their own corporate existence ceases. The new company is not a partnership of the „two old companies. It is entirely a new corporation. Shields v. Ohio, 95 U. S. 319 ; Railroad Co. v. Georgia, 98 U. S. 359 ; Railroad Co. v. Maine, 96 U. S. 499 . The fifth section of the consolidation act expresses this where it says that, “on the organization of such new company, * * * all and singular the rights, franchises, and interests of the said several corporations * * * shall be transferred to and vested in such new corporation * * * and such new corporation shall hold and enjoy the same and all rights of property, ” etc., “ * * * in the same manner and to the same extent as if the said several corporations so consolidated should have continued to retain the title,” etc. If there were not a new corporation, it would be unnecessary to declare that the rights and franchises of the consolidating corporations should be transferred to and

p. 251
vested in it. It is urged by the relator that, by payment of the tax, the consolidating companies purchased the right to be corporations and therefore that they ought not to be compelled to purchase it again. But the payment of the tax is not the purchase of a right. Under our constitution and laws, corporate rights are not special concessions by the state; but they are general privileges in the power of all citizens, and the tax is in no sense a purchase price. The companies have no greater rights when they have paid the tax than they had before. The companies which have paid the tax have no greater rights than those have which were incorporated before 1866, and therefore paid no tax. And this shows, further, that it is immaterial to the present inquiry whether, or not, the consolidating companies paid the tax. If these companies had been incorporated before 1866, and had entered into a similar agreement of consolidation, the legal question as to liability to this tax would be the same as in the present case. So, too, if one had been incorporated before, and the other after, 1866. The construction given to the law imposing the tax must be uniform. It cannot vary according as the consolidating companies have, or have not, been required to pay the tax.

In short, where the language of the statute is clear, it is not for the courts to say that a tax is unreasonable. It would have been easy for the legislature to insert in the consolidation act, or in the act imposing this tax, a clause exempting from such tax any corporation of which the consolidating companies, or one of them, had already paid a similar tax. But that was not done; and it would be judicial legislation for us to construe the statute as if such a clause had been inserted. We have only to inquire what the legislature meant, and they must be held to have meant what they said. It is true that the relator presents a strong equity when it urges that the tax has already been paid on the same amount of capital employed in the same business and practically by the same parties. But we cannot yield to this equity in violation of the language of the statute. There is nearly always something arbitrary and inequitable in taxes and tariffs, which courts cannot remedy. The order appealed from is affirmed, with $50 costs and disbursements. All concur.

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