People ex rel. Hatch v. Reardon

Laughlin, J.: The instructive arguments and excellent briefs of the learned • counsel on this appeal have enabled the court to readily appreciate the present status of judicial decisions on the interesting questions presented, and the points on ivhich the validity of the Stock Transfer Stamp Tax Law, so called, hinges. The validity of the amendment to the Tax Law is challenged upon the ground, among others, that the bill had only been upon the .desks of the members of Assembly one day prior to its passage-in that body. This objection should be considered first, because, if the constitutional requirements for the enactment of statutory law have not been observed, it is needless to inquire whether it would be competent for the Legislature to enact such legislation and the discussion of the question would be obiter. The bill.as printed in the Session Laws shows that it was duly enacted. The original certificates annexed to the act and on file with the Secretary of State are not presented by the record. It is not contended that they are not in due form to show the proper enactment of the law. It is contended that the journals may not be consulted to impeach the law. , I am of opinion, however, that they do not impeach it; an'd I prefer to put the decision, upon that ground without deciding whether, if they did, they would be competent for that purpose. — 824 — Section 15 of article 3. of the State- Constitution provides that “ Ho bill shall be passed or become a law unless it shall have been printed and upon the desks of- the members, in its final form, at least three calendar legislative days prior-to its final passage, unless the Governor, or the acting Governor,-shall have certified to the necessity of its immediate passage, under his hand and the seal of the State; -nor shall any bill be passed or become a-law, except by the, assent of a. majority of the members elected to each branch-of the Legislature; and upon the last reading of a bill, no amendment -thereof shall he allowed, and the question upon its final, passage -shall be taken immediately thereafter and the yeas and nays entered on the journal.” The provision requiring that the printed bill in the form in which it is to be enacted shall.be upon the desks of-the members three- calendar legislative days is new, having been first, adopted in 1894. • The petition upon which the writ was granted shows that this bill originated in the Senate and had been printed and upon the desks of the members of that body in its final form the requisite time before its passage, winch was on the 3d day of. April, 1905.; that on the next day it was duly sent to the Assembly for concurrence and had its first reading in that body on-that day and was duly referred to the Assembly committee on taxation and retrenchment, which committee. reported the same day in favor of its passage without amendment;, that this report was thereupon, agreed to and the bill was placed upon the order of second reading, and had its second and .third- readings and ¡massed on the fifth day of April by the requisite vote and in the presence of the quorum required by. the Constitution ;. that pursuant to a practice adopted by the Senate- and Assembly, without the enactment of a -statute or rule requiring it, with a view to complying with the requirements of said section 15 of article 3 of the Constitution, a bilí originating in one house was printed and placed, on the desk of each member of the other find every amendment made-thereto as printed and placed upon the desks "of the members of the house in which the bill origi-.nated was likewise^printed and placed upon the desk of each member of the other house; that pursuant to this practice the bill in: .question had been printed and upon- the desk of each member of .the Assembly in the final form in. which it was .passed for more than three days. This was clearly a literal compliance with-the consti — 825 — tutional requirements; and I am of opinion that it was a compliance with the spirit and intent thereof. The abuses that led to the adoption of this provision of the Constitution are well known. In committee and on the final passage of bills important amendments for ulterior purposes were sometimes surreptitiously made in writing or typewriting, and often allowed in that form without being thoroughly understood; and thus bills were passed not only without being understood, but without either publicity or deliberation. Under the practice adopted by the Legislature' for the purpose of complying with the Constitution none of the former abuses can be revived. When this bill came over from the Senate, every member of the Assembly had notice that it was the bill that was printed and upon his desk, and had been in the form in which it was passed by the Senate for the requisite time. This had given him ample opportunity to become familiar with the bill and no deception could Tie practiced upon him or upon his constitutents. The publicity by its pendency in the Senate and remaining there in its final form three days before its passage was all the notice to the constitutents of members designed to be given. The debates i'n the Constitutional Convention indicate that this was the view of Senator Tedder, an experienced legislator and the author of this provision, as shown by the following colloquy between Delegate Foote and himself immediately before the adoption of the amendment: “ Mr. Foote: Mr. President, I desire to inquire of the chairman of the Committee on Legislative Powers and Duties, whether his understanding of this amendment is that the bill must have been printed and upon the desks of the members in each of the Houses three days before its passage in each House, or whether the provision means that three days before the final passage in the last House it must have been printed and upon the desks of all the members of the- other House ? Mr. Tedder: Mr. President,.the question of the gentleman suggests that he may not -be accustomed to the rules of legislative bodies. When .a Senate "bill is printed it is put upon the Senate files of the Assembly, precisely the same as it is in the Senate, and vice versa. This means that it must be upon the desks of the members of the House which votes upon it three legislative days before that House votes upon it, so that they may read it and understand it. That is the object of the amendment. From necessity, it is — 826 — also in the other House at the same time, because they always go together.” (1 Revised Record Const.'; Oon'v. ,1894, 916.) The learned counsel for appellant do not contend that-the-bill should have been reprinted after coming over to the Assembly.' They concede that the printing was sufficient, but they maintain that three days must in every instance elapse after the particular body lias obtained jurisdiction of the bill either, by its having been introduced in its own body,-if the question be upon the passage of its own bill, three or more days before, or by its having been sent over from the other body three or more days, before final passage,. There is room for this contention and force in the arguments persuasively presented; and yet to so hold would probably invalidate a large part of. the legislation enacted during the last eleven years. I think the Constitution, is susceptible of the construction that has been placed upon it by the Senate and Assembly. The abuses at which the provision was aimed cannot arise under the practice in voguej and I think it. should not be overthrown by the courts. It is well known that the members of each legislative body keep, ail vised com cerning the important measures pending in the other, its members often attending the hearings before the committees of the other house. After a bill like this has first received careful consideration by one body with public ■ hearings of interested, parties before its committee and is then duly passed and. has.been in the final form of its passage printed- and upon the desks of the .members of the other body for three days .or more, no harm can come from permitting it to be put upon final passage as soon as a majority so directs. Often the members- of one body are watching the hearings upon bills pending in the other and ready, to .vote ás soon aS the bill comes over, and it not,infrequently happens that the early enactment of a bill after passing one body is required; for the public, interests. If this had been an Assembly bill on the desks of the members' the length of time-.’it was, concededly that .body could have legally passed it at the time it passed the Senate bill. If so, why.was it not competent for it to adopt the Senate bill? Frequently the same bill is introduced in each house and is ready for final passage about thé same time. The arguments, of the learned counsel for the appellant lead logically to. the position that in such case, although the bills are the same and each house is ready to pass its own, it — 827 — cannot, until the lapse of three days, concur in -the one which originated in and passed the other body. "To require a certificate of the Governor or Acting Governor in such cases would not compel further deliberation, and would only add another cumbersome and technical requirement, upon the due compliance with which would depend the validity of the law. Having for these reasons reached the conclusion that the procedure was'snificiently regular to validate the bill, provided it was competent for the Legislature to enact it, it becomes necessai’y to examine its provisions in the light of the objections to their constitutionality. , Article 15, added to the Tax Law by the amendment,- contains ten sections, 315 to 324 inclusive. Section 315, so far-as material to a decision of the questions presented, imposes a tax “ on ail sales, or agreements to sell, or memoranda of sales or deliveries or transfers of shares or certificates of stock in any domestic or foreign association,, company or corporation, made after the first day of June, nineteen hundred and five, whether made upon or shown by the books of the association, company or corporation, or by any assignment in .blank, or by any delivery,.or by any paper or agreement or memorandum or other evidence of transfer or sale whether entitling the holder in any manner to the benefit of such stock, or to secure the future payment of money or the future transfer of any stock, on" eacli hundred dollars of face value or fraction . thereof, two cents,” and provides that “ it is not intended by this act to impose a tax upon an agreement evidencing the deposit of stock certificates as collateral security for money.loaned thereon which stock certificates aré not actually sold, nor upon such stock certificates so.deposited.” The section then prescribes how the payment of the tax shall be denoted; and with respect to sales of certificates assigned in blank and delivered, as these were, it provides that the seller shall make and deliver to the buyer a memorandum or bill of sale, showing the date and the amount of the sale and the name of-the seller, and the matter or thing to which it refers, to which an adhesive stamp or stamps prescribed in the act shall be affixed, showing the payment of the tax. Sections 316 and 319 authorize and require the Comptroller of the State to prepare the stamps and put them on sale- at convenient places. Section 317 provides in substance that a person who shall make a sale without paying the — 828 — tax, or who shall,' in pursuance of any sale, deliver any stock or evidence of the sale of any stock or hill or memorandum thereof without affixing the stamps as required by' the statute, shall he "guilty of a-misdemeanor, and upon conviction thereof shall pay' a fine of not less than $500 nor more than $1,000, or be imprisoned, for not more than six months, or shall be subjected to “ both such fine and impiisonment at the discretion of the court.” Section 322 prescribes an additional civil penalty to the State of $500 for .each violation of the act, to be collected by the Comptroller. Section • 318 requires the seller to cancel the stamps as therein prescribed, and makes a failure to comply therewith -a misdemeanor. Section 320 makes an illegal use or interference with the stamps a misdemeanor. Section 321 confers authority upon the Comptroller to inquire into the payment of such tax and to enforce payment thereof and for any penalty incurred by action. Section 323 provides, in-substance, that no transfer of stock made after june 1, 1905, in violation of the provisions of the article “ shall be made the basis of any action or legal proceedings nor shall proof thereof be offered of received in evidence in any court in this State.” Section 324 provides that these taxes when collected by the Comptroller shall be paid “ into the • State treasury and be applicable to the general fund and to the payment of all claims and demands which are a lawful charge thereon;” The provisions of the "amendment to the Tax Law clearly show that the stamp.tax on the transfer of stocks was intended as a sub-stantial source of general revenue. The language employed embraces every actual sale and delivery of stock anywhere within the State. Yet it is well known that the sale of such securities elsewhere than on the exchanges or on the “ curb” is only a very small percentage. The extent of the transactions in stocks on the exchange is a matter of record, and the legislators could estimate approximately tlierevenue that might'he derived from this stamp tax. It is a matter of current history that it was expected that about $5,0.00,000 per annum would flow into the State treasury from the imposition Of the tax and that the amount of such taxes thus far collected indicates that the total for the year will exceed the amount anticipated.' In approaching the momentous questions presented, it must be. borne in mind that the power of taxation is an essential attribute of government; that, subject to constitutional restraints, it is for — 829 — tlie Legislature representing the people to determine the subjects and objects of taxation; that the Legislature is vested with all the power reserved to the people and, except as it may be'expressly or impliedly restrained by the State or Federal Constitution, has unlimited power in the premises. Judges, therefore, may neither substitute their own judgment for that of the Legislature as to the wishes or justice of a particular law, nor be influenced by those or like considerations in deciding its constitutionality. The sole inquiry is, therefore, has the Legislature exceeded its jurisdiction and enacted . a tax measure in contravention of the State or Hational Constitution % The presumption is in favor of the validity of the statute, and wé may not declare it void unless beyond a reasonable doubt it has been enacted in violation of a controlling constitutional provision. There is no express limitation in our State Constitution on the tax- - ing power of the Legislature. Section 15 of article 3 prescribes the vote essential to the passage of a bill, and section 25 of the same article prescribes that the presence of three-fifths of all the members elected to each house shall be essential to constitute a quorum therein for the passage of bills, among others, imposing a tax. These provisions were complied with. The only provision of the State Constitution relied on by the relator is section 6 of article 1 which provides that “ Ho person shall * * . * be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.” The appellant also relies on section 1 of the 14th amendment to the Federal Constitution which provides, among’Other things, that “Ho State shall make or enforce any law> which shall abridge the privileges or immunities of citizens of the Hnited States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” This provision was undoubtedly designed to restrain legislation by the States and not by Congress; but a similar provision, excepting the clause with respect to the equal protection of the laws, is contained in the 5th amendment to the Federal Constitution as a restraint upon the legislative power of Congress. This law does not deprive the people within the State of Hew York of the equal protection of the laws. It operates on all who sell stock in any 1 art of the State alike regardless of creed, color or nativity ; and the — 830 — amount of the tax depends upon the magnitude of the transaction. It is imposed on the transfers of a distinct- class of property most extensively bought and sold on the exchanges. It does not, therefore, I think, deny to any person within the State the equal protection of the laws, and is not within the prohibition of the clause of the Federal .Constitution relating to the equal protection of the laws-It cannot be successfully maintained that the Federal government has any greater power of taxation, except with respect to imports which the States are prohibited from taxing (IT. S. Const, art. 1, §§ 8, 9, 10), than the State. It was never intended that Congress should have power to enact a tax measure depriving any person of the equal protection of the laws in the sense in which the States are. inhibited from making laws depriving him of such protection. It follows, therefore, I think, logically that if Congress could impose such a tax, the State may likewise. This tax measure follows in all material respects section' 6 and Schedule A of the United States . War Revenue Tax Law of 1898 (30 U. S. Stat. at Large, 451, 458, as respectively amd. by 31 id. 940, § 5, and Id. 942, § 8), and was doubtless founded thereon. In United States v. Thomas (115 Fed. Rep. 207 ; affd., 192 U. S. 363) all of the objections now urged against the State law, at least with the exception of the equal protection.clause of the 14th amendment, appear to have been presented against the validity of the Federal law; and they were fully and ably answered, and it was' sustained as a tax, not upon property, but upon the transfer of this particular species of property. If it was competent for Congress to enact that law, it was competent for the Legislature of Hew York to enact this statute. It may be. that uqder the decisions of our own courts this statute could not be sustained as a tax on property owing to the fact that it is not based on value and that no opportunity is afforded the person upon whom the tax is imposed for a heai-ing on the valuation of his property or the amount of the tax, objections forcibly presented by. Mr. Justice Ing-raham. I disagree with him, however, as to the . nature of this tax. The learned Attorney-General and -his associate do not seek to sustain the law as a tax upon property. They contend that it is an excise tax or stamp duty upon the transaction or transfer of certificates of stock, the amount of the tax depending, upon -the extent of the- business, and such literally it appears to be. — 831 — It has so long been the practice in this State to tax property only that the validity of any legislation departing from that practice is ■ vigorously contested. ‘The fact that the power has not been heretofore exercised is no evidence that it does not exist. Of late years the Legislature has imposed a tax in certain instances on the transfer of property by will and under the intestacy laws, and its authority in this regard has been sustained both by the State and Federal courts, although the tax was not imposed on all such transfers and varied with the valuation of the property transferred. The Legislature has also inaugurated a policy of taxing special franchises, a species of intangible property not theretofore reached under the tax laws. ■ The validity | of these laws has also been sustained by the Court of Appeals and by the Supreme Court of the United States. From these two sources and from the liquor tax most of then'evenues essential to maintain the State are now derived. Our. • courts and the Federal courts have frequently given expression to the view that it is competent for the Legislature to single out any species of property or business or the transfer of property as the object of taxation. (People v. Home Ins. Co., 92 N. Y. 337 ; Matter of McPherson, 104 id. 317 ; Matter of Whiting, 150 id 29 ; Cook v. Marshall County, 196 U. S. 261 ; Matter of Gould, 156 N. Y. 427 ; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283 ; Nicol v. Ames, 173 id. 509.) The contention of the relator carried to its logical effect would confine .the Legislature in exercising the power of taxation to an ad valorem tax oil all personal property or all real property or both. It is not so. confined by any constitutional pro-. vision or by the decisions of the courts, rendered heretofore. There are, doubtless, implied limitations on. the exercise of this taxing power. If the Legislature should capriciously single out a particular species of property, or even'the transfer thereof, for taxation withoufiany reasonable ground for the classification or liostilely discriminate against particular persons or classes, and impose a tax thereon which would practically constitute confiscation, or be oppressive, the legislation might be declared void. (Matter of Pell, 171 N. Y. 48 ; People v. Equitable Trust Co., 96 id. 387 ; Connolly v. Union Sewer Pipe Co., 184 U. S. 540 ; Nicol v. Ames, supra.) The statute under consideration, however, cannot fairly be condemned on this ground* It is uniform, it is moderate, and the transactions — 832 — singled out embrace in the value of the property and tlie number of transfers by far the most important sales of property within the State. Tlie measure is practicable of enforcement and will, produce a great revenue without being over burdensome on the sellers or oppressive. The classification is not arbitrary. The property upon the transfer of which the tax is levied is the product of legislation It stands out by, itself as a distinct class of property. Whether under the reserved power to alter, amend and repeal charters of corporations (State Const, art. 8', § 1; Gen’ Corp. Law [Laws of 1892, chap. 687], § .40, added by Laws of 1895, chap. 672) the Legislature could impose this tax on the transfer of stock of domestic corporations theretofore incorporated need not be decided ; but it is very clear that as to new corporations it could impose it, even though it could not on the transfer of notes, bonds •and mortgages of individuals. Since the Legislature determined to inaugurate the policy, which clearly it was competent for it to inaugurate as to some property of the class, is it not equitable.that the transfer of stock in foreign corporations on the exchanges in this State should be put on a par with stock in a doméstic corporation? The decisions holding that the right to sell is an essential attribute of property are not in point. This statute merely regulates and taxes, but does not prohibit the sale. The -right to hold property is also an essential attribute of ownership, and yet it is subject to the power of taxation under, which the State may take the property if the tax be not paid. The statute is not in conflict with the commerce clause of the Federal-Constitution (Art. 1, § 8, subd. 3). The tax is imposed only on trans-fers made within this State, and it operates alike on transfers made by residents'and by non-residents without discrimination. (Woodruff v. Parham, 8 Wall. 140 ; King v. Mullins, 171 U. S. 436.) What has'been said disposes of .the contention that the act,- in imposing a tax on sales of the shares of a. foreign corporation owned by a non resident, taxes, property without the jurisdiction of the State. The 'sale and- delivery within the State conf er jurisdiction to impose the tax on the transfer. It follows that the order should be affirmed. O’Brien, P. J., McLaughlin and Houghton^ JJ., concurred.