(90 Hun, 533.)

#### PEOPLE ex rel. FREDERICK A. STOKES CO. v. ROBERTS, Comptroller.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

1. Exemption prom Taxation—Manufacturing Corporations.

Where a corporation is authorized by its charter to print, publish, and sell books, etc., to buy and sell stationery and other articles, and to do any and all business connected with or appertaining to printing, publishing, and bookselling, and it devotes part of its capital to the business of buying and selling foreign books, it is not “wholly” engaged in manufacturing, within Laws 1880, c. *542,*and acts amendatory thereof, exempting certain corporations from taxation, though its principal business is manufacturing and selling books, and only a small part of its capital is used in the purchase and sale of foreign books.

2. Account for Taxes—Time of Settlement by Comptroller.

Laws 1880, c. 542, § 1, makes it the duty of the officers of a corporation to report to the comptroller, on or before the 15th day of November in each year, the amount of capital paid in, and the dividends declared. Section 4 requires a corporation on which a tax is imposed to transmit it within 15 days from the 1st day of January in each year. Section 9 makes such tax applicable to the payment of the ordinary and current expenses of the state. *Held,*that the comptroller may settle an account for taxes after January 15th in the year in which such tax becomes due and payable.

3. Same—Valuation by Comptroller.

The determination of the comptroller of the question of valuation of property for taxation will not be disturbed unless clearly shown to be erroneous. People v. Campbell, 40 N. E. 239,145 N. T. 587, followed.

Herrick, J., dissenting.

Certiorari by the Frederick A. Stokes Company against James A. Roberts, comptroller of the state of New York, to review an assessment.

Quashed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, J J.

James W. Eaton, for relator.

T. E. Hancock, Atty. Gen. (G. D. B. Hasbrouck, Dep. Atty. Gen., of counsel), for respondent.

PUTNAM, J.

Relator was incorporated in April, 1890, under the provisions of an act of the legislature passed on the 17th day of February, 1848, entitled “An act to authorize the formation of corpora*74tions for manufacturing, mining, and mechanical purposes,” by making and filing the certificates required by the statute. The certificate stated the objects for which the company was formed as follows, viz.:

> “To carry on the business of printing, publishing, ancl selling books, pamphlets, pictures, engravings, photographs, and prints of ail kinds, and newspapers, manufacturing, buying, and selling stationery and stationery articles, writing materials, objects of art, and ornaments of all kinds, and to do any and all business connected with or appertaining to a general printing, publishing, and bookselling business.”

It will be seen that relator, by its charter, was not only authorized to carry on the business of printing, publishing, and selling books, pamphlets, pictures, engravings, and photographs, but also was empowered to buy and sell stationery and other articles, and to do any and all business connected with or appertaining to printing, publishing, and bookselling business. The evidence shows that the particular business actually carried on by relator since its incorporation has been the publishing, printing, and selling of books. It has been held that a corporation engaged in such a business is a manufacturer. Evening Journal Ass’n v. State Board of Assessors, 47 N. J. Law, 36-42. Assuming the doctrine stated in the case cited to be correct, relator since its incorporation has been engaged in carrying on a manufacturing business. And it was such although, in printing and publishing books, relator employed contractors to perform portions of the work. The testimony of the witness Poster shows that the relator, although contracting with other parties to do the printing, binding, and other portions of the work on the books it published, yet that much of the work necessary to produce and manufacture such books was done by relator or its employes. We think the evidence of the witness named shows that the books published by relator were in fact manufactured by it, and hence should be inclined to believe, if it appeared that the printing, publishing, and selling of books was the only business relator had been engaged in since its incorporation, that it was not liable for the tax imposed on it under the provisions of chapter 542, Laws 1880, and acts amendatory thereof.

But, under the provisions of that act, relator is liable to taxation on its franchise or business unless wholly engaged in carrying on a manufacturing business. It appears that outside of its business of printing, publishing, and selling books, relator, each year since its incorporation, has been engaged in buying and selling foreign books, and has invested in that business yearly the sum of $11,000. It is impossible, therefore, to say that, during the years for which the comptroller imposed a tax on relator, under the provisions of the act of 1880, it was wholly engaged in the business of manufacturing. As it appears that during the period mentioned it also used a portion of its capital for the purchase and sale of foreign books, it was, therefore, liable to the tax imposed upon it. People v. Campbell, 144 N. Y. 166, 38 N. E. 990. The fact that relator’s principal business was printing, publishing, and selling books, and that only a small part of its capital was used in the purchase of foreign books, does not render it less .liable for the tax. ■ In the Tiffany Case the capital of relator was $3,000,000, *75and the yearly amount expended in the purchase of goods not manufactured by the firm was only $300,000. In this case the capital of the corporation is $105,000, and the amount expended each year in the purchase of books not manufactured by the company was $11,000. In the opinion of Andrews, J., in the Tiffany Case, it is not suggested that Tiffany & Co. were exempted from taxation under the act of 1880, except for that part of its capital employed in buying and selling goods, on the ground that the amount used in that way was inconsiderable as compared with the amount of its capital. He places such exemption of the corporation on the ground that the purchase and sale of the goods was not within its corporate powers, and says:

> “The statute was not aimed at, and did not contemplate the exercise by, a corporation of powers ultra vires. If a manufacturing corporation is engaged in business outside of its corporate powers, in connection with its manufacturing business, it does not cease to be ‘wholly engaged’ in the business of manufacture; that is to say, its only legal and authorized business was that of manufacture. It subjected itself to taxation upon that portion of its capital so used, but nevertheless it remained a corporation which, so far as it exercised its legal powers, was ‘wholly engaged’ in manufacture, and, therefore, entitled to exemption as to its manufacturing business.”

In the case under consideration the purchase and sale of books was within the corporate powers of the company. The business it did during the years in question of manufacturing, as well as of buying and selling foreign books, was authorized by its charter. Hence it was not, during said years, wholly engaged in the manufacturing business, and the comptroller did not err in imposing the tax of which relator complains. People v. Campbell, 145 N. Y. 587, 40 N. Y. 239.

It is claimed that the comptroller had no right to settle an account for taxes after the 15th day of January in the year when such taxes become due and payable.1 *******9It is sufficient to say, in regard to this position, that the .same claim was made in the Tiffany Case (see points of appellant, 144 N. Y. 168, 38 N. E. 990), and necessarily overruled by the decision in that case. See, also, People v. Campbell, 145 IN". Y. 587, 40 H. E. 239. In the case last cited Bartlett, J., in his opinion, says:

> “It is the established rule, settled by repeated adjudications of the court, that the determination of the comptroller must stand upon the question of valuation, unless clearly shown to have been erroneous.”

*76Under the rule so stated we think relator did not show error on the part of the comptroller in the valuation made of its capital stock.

The determination of the comptroller should be confirmed, and the certiorari quashed, with $50 costs and disbursements.

MAYHAM, P. J., concurs. HERRICK, J., dissents.

1

 Laws 1880, c. 542, § 1, provides that it is the duty of the officers of a corporation to report to the comptroller, on or before the 15th day of November in each year, specifically, the amount of capital paid in, the date, amount, and rate per centum of each and every dividend declared during the year ending with the first day of said month, etc. Section 4 provides that it shall be the duty of the treasurer or other officer having charge of any corporation, joint-stock company, or association upon which a tax is imposed by either of the preceding sections of this act, to transmit the amount of said tax to the treasury of the state within 15 days after the 1st day of January in each and every year. Section 9 provides that the taxes imposed by this act, and the revenue derived therefrom, shall be applicable to the payment of the ordinary and current expenses of the state, and if any corporation, joint-stock company, person, partnership, or association shall neglect or refuse to pay any tax by this act required to be paid, the same may be sued for in the name of the people of the state, and recovered in any court of competent jurisdiction, in an action to be brought by the attorney general, at the instance of the comptroller.