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and amounts to a regulation of it.' But if the business in which the foreign company is engaged, is not in itself interstate commerce, it will not be free from State taxation, merely because it is conducted between the citizens of one State and a corporation created by and organized in another. And although part of the business of the foreign company may be properly classed as interstate commerce, a tax upon that portion of it which is confined to the limits of the State will be valid." And so will a tax upon that portion of the property of a foreign company, engaged in interstate commerce, which is located within the State.*

§ 162. Same-"Equality and Uniformity.”—A tax imposed upon foreign companies, but which does not apply to domestic corporations, is not, for that reason, obnoxious to the provisions of most of the State constitutions, requiring taxes to be "equal and uniform," since the effect of such legislation is simply to classify corporations and impose a certain tax upon the class of foreign companies; and the classification being based upon legitimate distinctions and the burden being equal within the class, there can be no question as to the validity of the

1 Ante, § 38 and cases cited. See also People v. Wemple, 131 N. Y. 64; Pickard v. Pullman, etc., Car Co., 117 U. S. 34, 24 Am. & Eng. R. R. Cas. 511; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 13 Am. & Eng. Corp. Cas. 365.

2 Ante, § 44.

3 Ante, § 39.

4 Ante, § 40. See also People v. Wemple, 131 N. Y. 64, where a tax upon that portion of the capital stock of a foreign company in use in the transaction of its ordinary business in the State was sustained. Compare Pickard v. Pullman South. Car Co., 117 U. S. 34, 24 Am. & Eng R. R. Cas. 511; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 13 Am. & Eng. Corp. Cas. 365.

tax. Nor can the provision, as to equality and uniformity be applied to license taxes, for they are, in their very nature, the subject of governmental discretion.2

§ 163.

Same Constitutional Restriction.—But broad as is the legislative power of imposing conditions upon foreign companies, it is, of course, subject to limitations imposed by the State constitution, and a general constitutional limitation of the power to impose taxes for revenue, as distinguish from the right to license and regulate, may be invoked as effectively in behalf of a foreign as of a domestic corporation."

§ 164.

Same-Payment of Tax to Fire Department, or to a Benevolent Association.-In view of the fact that the duties performed by the fire department of cities, enure directly to the benefit of underwriters of fire risks it has been, not unfrequently, provided that the proceeds of a tax or license fee levied as a percentage of the premiums on fire insurance shall be paid by the agents of foreign fire insurance companies directly to the fire department of the city or to some designated benevolent organization, for the benefit of disabled firemen. Ordinarily

there seems no ground to attack the validity of such a provision. It is a legitimate exercise of the

1 State v. Lathrop, 10 La. An. 398; State v. Fosdick, 21 La. An. 434; People v. Thurber, 13 Ill. 554; Leavenworth v. Booth, 15 Kans. 627; Commonwealth v. Milton, 12 B. Mon. 212; Insurance Co. v. New Orleans, 1 Woods, 85; Phoenix Ins. Co. v. Welch, 29 Kans. 672; State v. Insurance Co., 115 Ind. 257, 17 N. E. Rep. 574, 20 Am. &. Eng. Corp. Cas. 589. See also State v. Liverpool, etc. Ins. Co., 40 La. An. 463, 4 South, Rep. 504.

Slaughter v. Com., 13 Gratt. 767; Insurance Co. v. New Orleans, 1 Woods, 85.

3 San Francisco v. Liverpool, etc. Ins. Co., 74 Cal. 113, 15 Pac. Rep. 380.

4

power to prescribe conditions upon which the foreign company shall do business in the State.' But under a provision of the New York State constitution against the granting of "any private corporation, association or and individual any exclusive privilege, immunity or franchise whatever," and against "giving or loaning the credit or money of the State to, or in aid of, any association, corporation, or private undertaking," it was urged in Trustees v. Roome, that a statute requiring the payment of such a percentage annually to the Exempt Firemen's Benevolent Fund was invalid on the ground that the latter was a private charity. The court in an elaborate and lucid opinion, in which all concur held otherwise. The history of the New York fire department is traced step by step, noting the exemptions from jury and from militia duty, and from other public services as citizens, from time to time granted by the legislature to the members of the old volunteer department, in recognition of the fact that they were bearing more than their share of the public duty, common to all citizens, of extinguishing fires, and partly in compensation therefor; the extending of the exemption during the life of one who had been an active fireman during a full term of service and had been honorably discharged, who thus became an "Exempt Fireman;" the formation of the fund in question for the purpose of caring and providing for firemen disabled in the discharge of their duties and for those dependent on them; the subsequent incorporation of in

1 Fire Department v. Helfenstein, 16 Wis. 136.

2 Const. N. Y. art. 3, § 18.

3 Id. art, 8, § 10.

4 93 N. Y. 313.

trustees in order to enable them the better to discharge their functions. The court held that the caring for these men who had been injured in public service, the State was discharging a moral obligation and not bestowing a charity or gift; and further that the State in continuing the appropriation to the firemen when their services were no longer required,

recognized an honorable obligation founded upon their past services and the injuries and suffering which those had occasioned; that the origin, history and characteristics of the provision require it to be considered not as a donation but as an appropriation of public money to a public use.' A similar conclusion was reached by the Illinois court in Firemen's Benevolent Assn. v. Lounsbury,' though by what seems to be a fallacious course of reasoning. The opinion (CATON, J.) says that it is immaterial whether it be regarded as a public or a private charity, though on the whole he is inclined to consider it a public charity. But it was held that, even it was a private charity, the State has power, arguing from the supposed analogy from the power to license such "private enterprises" as ferries, toll-bridges, etc., to levy, in its wisdom and discretion, such a percentage, even for the benefit of a private charity!

§ 165. Construction-Exemption from Taxation.In an act prescribing conditions for the admission of foreign insurance companies to the State, a provision, general in its terms, exempting them from certain classes of taxation, without any intimation. of an agreement or even understanding that this

1 See also Fire Department v. Noble, 3 E. E. Sm. 440; Fire Department v. Wright, 3 E. D. Sm. 453.

2 21 III. 511, 74 Am. Dec. 115.

exemption should not be withdrawn, is in no sense a pact between the State and any company, which may take advantage of the act by complying with its provisions, and comes into the State to do business, so as to invalidate a subsequent repeal of the statute, and the imposition of such a tax.'

§ 166. Taxation. But a tax, special and peculiar in its nature, not a general tax for State purposes, will not be impliedly repealed by a subsequently enacted statute, providing for general taxation of such companies, and in terms exempting them from all other taxation.2

Same-Effect of Exemption from General

§ 167. Same-“Manufacturing within the State.” -A Utah silver mining company, which was engaged in the reduction of ores to bullion, and which had a smelter at its mines in Utah where it reduced the ore to base bullion, and then sent it to another smelter, which it had at Chicago, where it was further refined and the lead separated from the silver, and then sent it to the United States assay office in New York, where it was still further refined into standard silver bars, is not a manufacturing company carrying on manufactures within the State of New York, within the meaning of a statute, exempting foreign companies so engaged from certain privilege taxes." § 168. Same "Insurance Company Incorporated or Associated" under Foreign Government-Jointstock Company.-A statute, imposing a tax of a certain percentage of all the premiums charged or re

1 Ætna F. Ins. Co. v. Reading, 119 Pa. St. 417, 13 Alt. Rep. 451.

2 Trustees, etc. v. Roome, 93 N. Y. 313. See also People v. Phil. Fire Assn., 92 N. Y. 311. Compare Columbus v. Hartford Ins. Co., 25 Neb. 83, 41 N. W. Rep. 140.

3 People v. Horn Silver Mining Co., 105 N. Y. 76, 11 N. E. Rep. 155.

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