HEROLD v. PUBLIC SERVICE ELECTRIC CO. et al.

HEROLD v. PUBLIC SERVICE ELECTRIC CO. et al. (Circuit Court of Appeals, Third Circuit. April 22, 1916.) No. 2063. In Error to the District Court of the United States for the District of New Jersey; William H. Hunt, Judge. J. Warren Davis, U. S. Atty., of Trenton, N. J., for appellant. Frank Bergen, of Newark, N. J., for defendants in error. Before BUFFING-TON, McPHERSON, and WOOLLEY, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Excise taxes for the year ending December 31, 1912, were assessed against the Gas & Electric Company of Bergen County, and paid by Public Service Electric Company under protest. This action was brought to recover the amount so paid, upon the ground that the taxes were unlawfully assessed and collected. Judgment was entered for the plaintiffs upon findings by the District Court that prior to the year 1912 the Public Service Electric Company had acquired by lease all the property and franchises of the Gas & Electric Company of Bergen County, except its franchise to be a corporation, and during that year the lessor plaintiff was not “engaged in * * * carrying on or doing business” within the meaning of the Corporation Tax Law (Act Aug. 5, 1909, e. 6, § 38, 36 Stat. 112 [Comp. St. 1913, § 6300]). The defendant sued out a writ of error, raising one of the questions recently considered and decided by this court in a number of cases in which the defendant and various public service corporations of New Jersey were parties. 229 Fed. 902, - C. C. A. -. Applying to the facts of this case the theory of the law there announced, we are of opinion that the lessor corporation was not “doing business” within the meaning of the act, and that the judgment below should be affirmed.