BIRD, V. C.
Application for an injunction. New Jersey tax law of 1884 provides that "all other corporations under the laws of this state, and not hereinbefore provided for, shall pay a yearly license fee or tax of one-tenth of one per centum on the amount of the capital stock of such corporations: provided, that this act shall not apply to * * * manufacturing companies or mining companies carrying on business in this state."
W. T. Hoffman, for the State. A. Q. Keasbey, for defendant.
BIRD, V. C. I can find nothing in the facts in this case to distinguish it from Glucose Co. v. State, 43 N. J. Eq. 280, 5 Atl. Rep. 803, which, to the extent of the facts involved, at least, had the sanction of the court of errors and appeals.
1. But now it is said that other and very material considerations are involved. The claim is that there is ambiguity in the language of the act; in other words, that the legislative intent is not expressed in the law as it appears on the statute book. The proviso in question is: "Provided, that this act shall not apply to railway, canal, or banking corporations, or to savings banks, cemeteries, or religious corporations, or purely charitable or educational associations, or manufacturing companies or mining companies carrying on business in this state." The absence of a comma after the words "manufacturing companies" gives rise to the assertion that the clause is ambiguous in its meaning, and that it is uncertain whether manufacturing companies as well as mining companies are subjected to the phrase "carrying on business in this state." Upon this supposed uncertainty it is claimed that the necessity arises which warrants the court in looking beyond the statute law, as it is presented to us by the ordinary forms of attestation, and into the journals of the two branches of the legislature, in order to find relief from this uncertainty. it is said that such reference will show the fact to be that, in a committee of conference of the two houses, the words "or manufacturing companies or mining companies carrying on business in this state," with a comma after the word "companies" in the first instance, were agreed upon by way of amendment, and so reported to both houses and passed. But counsel admits that the act was engrossed and printed, as it now appears on the statute book, without the comma. In that state it was signed by the governor. The defendant offered to produce testimony to show these facts by the journals of the two houses; but this was objected to because of its illegality. But it was admitted, and it was so admitted in view of the great importance of the case, and of the very strong conviction of counsel, that without such testimony he would be unable to have his case fully and finally heard and disposed of, in accordance with what he believes the law will now be declared to be. The evidence was admitted, not with the intention of disregarding the case of Pangborn v. Young, 32 N. J. Law, 29, but with a full understanding of the comprehensiveness of that case, and of its binding force. Counsel urged most strenuously that, since the expressions in the case referred to, the judicial mind of this country has undergone a very radical change upon this subject, and that' already a very decided weight of authority is in favor of admitting such testimony; and what in his judgment lends weight to his view is that the offer of such evidence is not made to deny the existence of the statute, nor to contradict it, but to enable the court to interpret its meaning; citing Blake v. Banks, 23 Wall. 307; Gardner v. Collector, 6 Wall. 499; Walnut v. Wade, 103 U. S. 689; Town of Ottawa v. Perkins, 94 U. S. 260; Post v. Supervisors, 105 U. S. 667; McCulloch v. State, 11 Ind. 424; Fordyce v. Godman, 20 Ohio St. 1; Purdy v. People, 4 Hill, 384; Bank v. Sparrow, 2 Denio, 97; People v. McElroy, 40 N. W. Rep. 750.
Opinions from such high sources are entitled to the highest consideration; but, after a careful consideration of the very able opinions of Chief Justice BEASLEY and Mr. Justice ELMER in the Pangborn Case, I cannot say, if the rule laid down there admits of an exception, that such exception has now arisen. Such testimony, therefore, so far as I am concerned, will not be considered. Nor am I able to perceive the necessity for resorting to any testimony outside of the statute to aid in its interpretation, for in my judgment there is nothing doubtful.
2. It is also submitted that the act is unconstitutional in that it imposes taxes arbitrarily upon one corporation which carries on its business outside of the state, while those within the state are exempted. This, it is claimed, is in violation of the provisions of the constitution, which requires the impositionof taxes by uniform rules; citing in support thereof State v. Collector of Chatham, 16 Atl. Rep. 225. But the law in question is uniform. It imposes taxes upon all who do not carry on business within this state. It makes no other discrimination. It reaches the entire class. No single locality is selected for exemption.
3. But, again, it is said that this provision is in conflict with the constitution of the United States in that it imposes a burden upon a business or occupation, and so interferes with commerce between the different states of the federal Union. The case of Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. Rep. 1380, is relied upon as fully sustaining this contention. Every judicial utterance emanating from this high source is not only studied with "delight, but followed with pleasure, whenever the case under consideration falls within it. But I am quite clear that this case is not like that in very many essential particulars. In that case the corporation whose business the authorities of the city of Mobile sought to tax was a corporation created by the act of the legislature of the state of New York, but which was doing the business of telegraphing in Alabama, where the attempt was made to impose a tax on the business the said company was doing in that state. The business, it will be seen, was not confined to the state of Alabama, but extends to all of the states of the Union. All of this, so far, at least, as it was conducted by the offices in Alabama, that state claimed the right to tax. In the case now before me no effort is made to tax the business of a foreign corporation. The corporation defendant is the creature of our own laws. Are the laws now under consideration in conflict with the federal constitution, or with any of the decisions of the supreme court of the United States? The corporation act, under which the defendant has its existence, was especially designed to foster and encourage commerce and business. It pushes the door all the way open, and makes the avenues of trade as wide as ingenuity can devise. There is no limit to caste, class, or locality. The act which is now sought to be construed must be considered therewith, and this act is designed to raise revenue. The one permits all alike to engage in business; the other imposes certain taxes on different kinds of corporations, classifying them, and exempts certain other corporations, and this very exemption is for the encouragement of business; However, certain ones, also otherwise exempt. are not so exempt if they do not carry on their business in this state. This is nothing more than a modification of the corporation act, to the extent of limiting its privileges to those manufacturing companies who become incorporated and do business in this state, and surely the legislature has the right to do this.
The foregoing views are based more on the fact that counsel was so anxious to have this branch of the question considered by the court than upon the conviction that this court has any jurisdiction of such question at all. For the state government to enact that certain individuals may form themselves into a body corporate to carry on any legitimate business, provided they carry it on within the limits of this state, would not be imposing a burden or restriction upon trade, business, or commerce, in the sense contemplated by the federal constitution, or by the decisions of the supreme court. With one hand the legislature creates a corporation, and with the other it says to it, for the enjoyment of the privileges conferred, it must pay to the state "a yearly license fee or tax of one-tenth of one per cent. on the amount of the capital stock of such corporation," but exempting certain corporations, among which are manufacturing corporations such as the defendant, doing business in this state. It seems to me that if the federal constitution or the decisions of the supreme court are aimed at such provisions, then not only is the whole body of the law void, but it will be impossible for any state to frame a law of this nature which would not be subjected to the same criticism, were there to be any conditions whatever attached to it with respect to locality.
I think the injunction prayed for should be allowed.