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[235 U.S. 549, 550] Messrs. H. T. Newcomb, Amos Van Etten, and Lewis E. Carr for plaintiff in error.
[235 U.S. 549, 552] Mr. Franklin Kennedy and Mr. Thomas Carmody, Attorney General of New York, for defendant in error.
Mr. Justic Day delivered the opinion of the court:
The proceeding which resulted in the judgment here complained of originated in an application by the Cornell Steamboat Company to review by certiorari a decision of the comptroller of New York, denying a petition for revision and readjustment of taxes imposed by the comptroller on the steamboat company for the years 1902 and 1903. These taxes were imposed under 184 of the Tax Laws of New York, which, so far as it is pertinent here, reads:
In the years 1902 and 1903, the comptroller of the state imposed upon the steamboat company taxes on its earnings for those years, and denied the application for a revision and readjustment. The writ of certiorari was afterwards issued from the supreme court of New York upon petition to review and correct the determination of the comptroller. The matter was heard in the appellate division of the supreme court of New York, and that court affirmed the determination of the comptroller. Appeal was taken to the court of appeals of New York, and that court affirmed the order appealed from, and remitted the case to the supreme court of the state. 206 N. Y. 651, 99 N. E. 1115. This writ of error is sued out to reverse the judgment.
Taxes were assessed upon the return of the steamboat company for the year 1902: 'Gross earnings, not interstate business, derived from all sources during the above period, $377,146.33;' also on the return for the year 1903: 'Gross earnings on business commenced and terminated in the territorial limits of New York, derived from towing charges upon the Hudson river (navigable waters of the United States), earned with vessels enrolled and licensed by the U. S. government, i. e., business which is regulated by the U. S. government, and which it is claimed is not taxable by the state of New York, $394,505.59;' which [235 U.S. 549, 557] return was followed by a supplemental return: 'State of New York, County of Ulster, ss. George Coykendall, being duly sworn, says that he is the vice president of the Cornell Steamboat Company; that the report of gross earnings in the stat of New York, of the Cornell Steamboat Company for the year ending June 30th, 1903, verified by me on September 17th, 1903, should be amended as follows: That the statement in such report of business commenced and terminated within the territorial limits of the state of New York, deriver from towing charges upon the Hudson river, is made up largely of towing done in the following manner, as deponent knows from personal knowledge and information derived from the superintendent of the company, to wit: Tows for up-river points on the Hudson river are made up at a stakeboat located at Weehawken, within the territorial limits of the state of New Jersey; that there are two stakeboats anchored in the river just below Weehawken ferry; that vessels and boats reported for the up-river tows are taken to the stakeboats and there made fast, and the tow is there made up, the towing vessels are attached, and the course pursued by the steamers in going up the river is in the territory of New York and New Jersey; that tows coming down the river pursue a like course, going into the territory of both states, and when the tow arrives in New York harbor, the entire tow, or the greater part thereof, is, as a usual thing, turned in the river, going into the territory of New Jersey and making the turn. Deponent further says that nearly all earnings of the company are from business done within the territorial limits of New York and New Jersey, to such extent as the state of New Jersey is included in the Hudson river and New York bay, and that it is absolutely impossible to state just when the vessels are within the territorial limits of either state. Deponent further says that he desires to file this affidavit as a correction of the report verified September 17th, 1903, by him, which report [235 U.S. 549, 558] was filed with the state comptroller on or about the 17th day of September, 1903.'
These returns may be supplemented by a statement from the brief of plaintiff in error, derived from the record, as to the manner in which the towing business of the company was done: 'The tows were made up in the Hudson river at Albany, New York, or its vicinity, and the steamboat company, the plaintiff in error, thereupon attached a towing line connecting the tows with its tugs or steamers, and moved the tows down or up the river, leaving the tows up-bound in the river at Albany or its immediate vicinity, and those bound down the river in the bay at New York city or in the waters adjacent thereto.'
It is apparent from a consideration of 184 that the tax here imposed upon transmission and transportation corporations is for the privilege of carrying on the business in a corporate capacity within the state of New York, for which an annual excise tax or license fee is exacted equal to 5/10 of 1 per centum upon the gross earnings on transportation originating and terminating in the state of New York. By its express terms, the statute provide that the tax shall not include earnings derived from business of an interstate character.
It is contended that as the business of towing carried on by the plaintiff company is done upon the navigable waters of the United States, and under authority of a license granted by the United States, the state has no jurisdiction or authority to levy the tax in question, and that it is in reality and substance an attempt to enforce a license tax for the privilege of navigating the public waters of the United States,-a privilege already granted under the general government. (See 4400 and 4401 of the Revised Statutes of the United States [Comp. Stat. 1913, 8152, 8153], and also 4438-4443 [Comp. Stat. 1913, 8200-8205], providing for the license of officers of vessels.)
The right of the Federal government to regulate com- [235 U.S. 549, 559] merce, under 1 8, subdivision 3, of the Federal Constitution, giving Congress control over interstate commerce, confers the supreme authority over navigable rivers and streams for the purpose of regulating navigation, and all that pertains thereto; and under this authority the Federal government is supreme and may not be interfered with by the laws of the states. The subject is fully discussed in United States v. Chandler-Dunbar Water Power Co. 209 U.S. 447 , 52 L. ed. 881, 28 Sup. Ct. Rep. 579. The tax here in question does not impose a license tax as a prerequisite to the navigation of the river, as was the case in Harman v. Chicago, 147 U.S. 396 , 37 L. ed. 216, 13 Sup. Ct. Rep. 300, cited and relied upon by the plaintiff in error, where an ordinance of the city of Chicago, imposing a license tax for the privilege of navigating the Chicago river and its branches by steam tugs licensed under the Federal authority, was held an unconstitutional exaction, as it required payment for a privilege which had already been granted within the authority of the Federal government.
In the case now before the court, the tax, as was said by Chief Judge Cullen, in delivering an opinion in the court of appeals in New York in this case, concurring in the order affirming the court below without opinion, is levied upon the corporation for the privilege of carrying on its business in a corporate or organized capacity. As the chief judge says, if the parties beneficially interested in the company are dissatisfied with the price exacted by the state for this privilege, they may carry on the business as individuals without paying any charge. In other words, the charge is not upon the navigation of the river, but is upon the doing of business as a corporatio of the state within the state. While the state may not require a navigation license except in very exceptional cases, as for compensation for improvements which the state has made (a situation not presented here), it may, certainly as to a corporation of its own creation, having [235 U.S. 549, 560] property within its borders, enforce its usual and customary systems of taxation without infraction of the superior authority and laws of the United States concerning the navigation of rivers.
With this view of the tax now under consideration, we think the state did not exceed its authority in its imposition of a tax for the purpose stated.
But it is urged that this is a tax upon interstate commerce, and therefore beyond the power of the state, notwithstanding the statute undertakes to exempt the proceeds of interstate commerce from taxation. That interstate commerce is necessarily taxed is said to arise from the fact that the business of the company is in fact interstate commerce, as shown by its additional return, form which it appears that vessels for up- river points on the Hudson river are taken by tows, which are made up at a stakeboat located at Weehawken, which is within the territorial limits of New Jersey; that these stakeboats are anchored in the river just below Weehawken ferry, and that the course up the river is in territory of New York and New Jersey. But transportation between the ports of the state in not interstate commerce, excluded from the taxing power of the state, because as to a part of the journey the course is over the territory of another state. Lehigh Valley R. Co. v. Pennsylvania, 145 U.S. 192 , 36 L. ed. 672, 4 Inters. Com. Rep. 87, 12 Sup. Ct. Rep. 806; Ewing v. Leavenworth, 226 U.S. 464 , 57 L. ed. 303, 33 Sup. Ct. Rep. 169, and see Cincinnati, P. B. S. & P. Packet Co. v. Bay, 200 U.S. 179, 183 , 50 S. L. ed. 428, 432, 26 Sup. Ct. Rep. 208. Weehawken is opposite New York harbor, and the business upon which the tax is here imposed is all done between New York ports, and the record shows distinctly that no earnings were returned for tugs operated in New York harbor and ports outside the state. Such business was deducted as interstate business, and not taxable under the terms of the statute. It is evident that the making up of the tows for the state ports in the river below Weehawken was for convenience in conducting domestic transportation. [235 U.S. 549, 561] We are of the opinion that commerce thus carried on is not interstate commerce, beyond the taxing power of the state, and that the return on which the tax was assessed did not involve the revenues of commerce among the states, and this contention must be rejected.
It follows that the decision of the Supreme Court of New York must be affirmed.
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