| N.J. | Feb 15, 1892
The only ground of objection presented by counsel against this annual license fee or tax is, that it conflicts with the exclusive power of congress to regulate foreign' commerce.
The first answer to this objection is, that, so far as the ease-discloses, the company was not, when the tax was imposed,, engaged in commerce. Its sole business had been, and then-was, the purchase, occupation and development of certain lands-in the Republic of Honduras, and in this business its whole capital was invested.
Whether between those lands and the United States any commerce should arise, was a matter for future consideration. Until that was decided and acted upon, it could not be said that the company was engaged in such commerce as lies within the purview of the federal constitution empowering congress to-regulate commerce with foreign nations. Even in January,. 1890, all that was claimed by the treasurer of the company on its behalf was, that its business would, at some indefinite-time thereafter, be “the exportation of the products of its-lands in Honduras to the United States and other countries, and the importation of merchandise from the United States- and other countries into Honduras.”
Evidently, in 1888, the company was not engaged in commerce between the United States and foreign nations. Coe v. Errol, 116 U. S. 517.
The second answer to the objection is of more permanent; efficacy.
The tax imposed is a franchise tax exacted from the company as the price of the right and privilege, which it received' from the state, of being a corporation. Although the amount to be paid is determined by the amount of the capital stock and the duration of the corporate lite, yet these are only the criteria chosen by the legislature for ascertaining the probable value of the corporate franchise which the company assumed. The tax is not levied upon the corporate property or business.
Such a tax may be collected by the state granting the corporate franchise, no matter how the property of the company may be invested or employed, or where it may be situate.
This principle formed the basis of decision in Home Ins. Co. v. New York, 134 U. S. 594, where Mr. Justice Field,, delivering the opinion of the court, said: “ The granting of such right or privilege (of being a corporation) rests entirely in the discretion of the state, and, of course, whe.n granted, may be accompanied with such conditions as its legislature may judge most befitting to its interests and policy. It may require, as a condition of the grant of the franchise, and also-of its continued exercise, that the corporation pay a specific-sum to the state each year or month, or a specific portion of its gross receipts, or of the profits of its business, or a sum to-be ascertained in any convenient mode which it may prescribe. The validity of the tax can in no way be dependent upon the-mode which the state may deem fit to adopt, in fixing the amount, for any year, which it will exact for the franchise. FTo constitutional objection lies in the way of a legislative-body prescribing any mode of measurement to determine the-amount it will charge for the privilege it bestows.”
In that case the amount of a state tax was to be determined by the amount of capital stock and the annual dividends, and it -was resisted on the ground that the capital w'as largely invested in United States bonds,.which could not be taxed by the state; but the tax was sustained on the principle above-announced, and the learned justice further said : “ The tax in the present case would not be affected if the nature of the-property in which the whole capital stock is invested were-changed and put into real property or bonds of Yew York or of other states. From the very nature of the tax, being laid upon a franchise given by the state, and revocable at pleasure, it cannot be affected in any way by the character of the property in which its capital stock is invested. The power of the-state over the corporate franchise and the conditions upon.
In further support of the proposition that a state may impose upon its domestic corporations a tax levied on the capital stock as a condition of the grant of corporate existence, and notwithstanding the exclusive power of congress to regulate commerce’with foreign nations and among the states, may also be cited, Railroad Company v. Maryland, 21 Wall. 456 ; Philadelphia S. S. Co. v. Pennsylvania, 122 U. S. 326, 344.
We are of opinion that the tax is legal and should be .affirmed with costs.