232 Mass. 19 | Mass. | 1919
The petitioner, a foreign corporation organized under the laws of Illinois, seeks by this petition under St. 1909, c. 490, Part III, § 70, to recover an excise tax amounting to $1,100 alleged to have been exacted illegally and paid in January, 1918. The excise was levied at the rate of one fiftieth of one per •cent on the entire capital stock of $5,500,000 of the petitioner, pursuant to St. 1909, c. 490, Part III, § 56. St. 1914, c. 724, was not repealed until March 18, 1918. St. 1918, c. 76. Therefore the excise here in question was levied while both said § 56 and said c. 724 stood upon the statute books without repeal or modification of either. The agreed facts show that the petitioner was maintaining within the Commonwealth a place of business for the transaction of local and domestic business entirely separable from its interstate business. It therefore could have been taxed under Part III, § 56 of the tax act, if that section stood alone, under Baltic Mining Co. v. Massachusetts, 231 U. S. 68, and Cheney Brothers Co. v. Massachusetts, 246 U. S. 147.
The excise here in question stands on precisely the same footing with respect to St. 1909, c. 490, Part III, § 56, and St. 1914, c. 724, as did the excise tax assessed upon the Locomobile Company of America, which was before this court in Locomobile Co. of America v. Commonwealth, 228 Mass. 117. Said § 56 imposed an excise tax upon foreign corporations, for the privilege of doing a local as distinguished from an interstate business within this Commonwealth, of one fiftieth of one per cent on the par value of its authorized capital stock, the amount of the excise in any one year not to exceed $2,000. Said c. 724 imposed an excise of one one-hundredth of one per cent on the par value of the authorized capital stock of such corporations in excess of $10,000,000. We
It is argued by the Attorney General that the question now presented is merely one of construction of statutes of this Commonwealth, as to which it is the settled practice of the Supreme Court of the United States to follow the interpretations of State courts, Old Colony Trust Co. v. Omaha, 230 U. S. 100,116, Northern Pacific Railway v. Meese, 239 U. S. 614, 619, and further that the true construction of said § 56 and said c. 724 is that they are separable and that the first should be upheld even if the latter is unconstitutional.
We did not discuss or consider that question at all in International Paper Co. v. Commonwealth, 228 Mass. 101. We did not regard it as involved in that decision because we thought (erroneously as it has since been held in International Paper Co. v. Massachusetts, 246 U. S. 135) that both statutes together did not violate the rights of the petitioner under the Constitution of the United States.
It therefore is adjudged that the excise was exacted illegally, and an appropriate decree is to be entered in accordance with St. 1909, c. 490, Part III, § 71.
So ordered.