67 N.Y.S. 893 | N.Y. App. Div. | 1900
The relator is a resident of the state of New Jersey. He is a member of the stock exchange in this city, and as such member he was assessed by the respondents for the sum of $20,000, a-s the value of his seat in the exchange, upon the claim that it was capital invested in his business, under section 7 of the tax law (Gen. Laws, c. 24; Hydecker’s Gen. Laws, p. 1856). He sued out a writ of certiorari .to review this assessment. It-appears from the papers that he is a nonresident of the state; that he has no personal property within the state, unless his seat in the exchange is such; that his sole business is buying and selling stocks upon commission on the floor of the exchange; that he invests no money in that business, as he buys only such stocks as he is ordered to buy, and pays no money for them, and puts up no margin; that he paid $4,000 for his seat in the exchange in 1872; that the membership, which is called
The appellant insists in.the first place that his membership, or, as it is called, his “seat,” in the stock exchange, is not property. The nature of it is fully set forth above. As far as the relator is concerned, it is a mere personal privilege, which entitles him to go upon the floor of the exchange, and there buy stocks from other persons who are also entitled to be there, and who are engaged in that business. Because he is there he can deal more conveniently than if he were obliged to go upon the street or go to the office of other dealers, but he personally receives no other benefit than that from his membership. As is said above, however, he was obliged to pay a considerable sum of money to obtain this privilege, and, if he chooses to sell it, he would be able to do so for a much greater price than he paid for it; but the person who bought it would obtain no rights of membership unless he was elected by the governing-committee of the exchange, who would be at liberty to refuse to do so if they saw fit. But this privilege is nevertheless property, within that definition of the term “personal property” which is contained in section 4 of the statutory construction law, although its ownership and power of disposition are hedged in by restrictions. St. Const. Law (Gen. Laws, c. 1) § 4; Belton v. Hatch, 109 N. Y. 593, 17 N. E. 225; Lowenberg v. Greenebaum, 99 Cal. 166, 33 Pac. 794, 21 L. R. A. 399; Pancoast v. Gowen, 93 Pa. St. 66. But the fact that in a certain sense it may be property does not necessarily make it taxable. The definition of the statutory construction law as to what constitutes personal property does not apply with respect to that which may be assessed for taxation. The power of the assessors to put property upon the assessment roll is derived from the tax law,
The question is whether this sum of $20,000 which is assessed against the relator can be said to be capital invested in his business, because in 1852 he bought the privilege of doing business in the stock exchange for the sum of $4,000, which was all he paid for it. Before proceeding to a consideration of the words of the statute, it is well to look at the title of the section. That title was a part of the law as passed by the legislature, and therefore it must be assumed that it represents the subject about which the section treats, and can be referred to as throwing some light upon the meaning of the section. The section is entitled, “When property of non-residents is taxable,” and it is fairly to be assumed that the word “property,” when it is used in the tax law in that place, has the same meaning as the same word as used elsewhere in the statute, and that the property which is taxable under the provisions of that section is that w’hich has been referred t'o in the definition of the law as constituting property. A nonresident is assessed upon capital invested in his business. The word “capital” has a well-defined meaning. It is said to be “the sum which a merchant, trader, or other person or association adventures in any business requiring the expenditure of money, with a view to profit.” 5 Am. & Eng. Enc. Law (2d Ed.) p.
These considerations require us to conclude that the personal privilege of this relator is not capital invested in his business, within the meaning of section 7 of the tax law, and for that reason he was not taxable upon it; and therefore the order dismissing the writ should be reversed, and the assessment vacated, with costs. All concur, except O’BRIEN, J., who dissents.