The People of the State of New York ex rel. The United Verde Copper Company, Relator, v. James A. Roberts, as Comptroller of the State of New York, Respondent

The People of the State of New York ex rel. The United Verde Copper Company, Relator, v. James A. Roberts, as Comptroller of the State of New York, Respondent. Taxation of a domestic mining corporation■—-when bonds of a foreign railroad, organized to carry minerals from its mines, constitute part of its capital stock. Whether railroad bonds which a domestic mining corporation, having an office and employing part of its capital within the State of New York, received for advances made by it towards the construction, in a foreign State, of the railroad, organized in its interest, to transport minerals from its mines in the latter State, are,, when in its possession in the State of New York (not there used as a basis for loans, or otherwise, in its business), taxable as part of its capital stock, depends upon the question whether, as the miffing corporation takes mineral from its mines, the value of the bonds will decrease by the exhaustion of the mine, and the bonds be in that sense used in the business of the mining corporation and a part of its capital stock. In the absence of evidence to the contrary or of proof of the market value of the stock, the Comptroller’s decision upon this question will be sustained on appeal. Certiorari issued out of the Supreme Court and attested on the 17th day of July, 1897, directed to- James A. Roberts, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in assessing a tax against the relator, a domestic corporation, upon its franchise, together with a penalty, the basis of the assessment being the amount of its capital stock employed within this State.. The relator complains of the inclusion in the valuation of the capital stock of bonds of a foreign corporation to the amount of $300,000, held by the relator as an investment, as it alleges, of its surplus earnings. H. G. Atwater, for the relator. Theodore E. Hancock, Attorney-General and G. D. B. Hasbrouck, Deputy Attorney- General, for the respondent. [MAJORITY — Landon, J.:] Landon, J.: The relator was organized under the laws of this State in 1883 as amiining corporation, with a capital stock of $3,000,000, all of which was issued in payment for certain mines and mining properties in the Territory of Arizona. Since then it has carried on its mining operations there, and out of its so-called profits has yearly paid dividends, and also invested $300,000 in the bonds of the United Verde and Pacific Railway Company, a corporation organized in Arizona, in the interest of the relator, to construct a railroad from the relator’s mines to another railroad about twenty-five miles-distant. This railroad has been constructed. Its main business is to take away the product of the relator and bring to it its supplies. The relator furnished the money to build, and equip the railroad, and the bonds in question represent most of the money thus-furnished. These bonds were in the possession of the relator in Rew York when the Comptroller imposed the tax in question. All of the relator’s business is done without this State, except some of its financial business and such as pertains to its official residence in the city of Rew York. In that city it has an office, some furniture and a bank account, employing capital for these purposes-to the amount of $180,000, as fixed and taxed by the Comptroller,, of which the relator does not complain. The question' upon which our decision depends is whether the $300,000 of bonds above mentioned were part of the capital stock of the company or its surplus earnings. If capital stock, the tax was: properly imposed. (People ex rel. Edison El. L. Co. v. Campbell, 138 N. Y. 543; People v. Campbell, 88 Hun, 544.) If surplus, the tax was erroneous. (People ex rel. Singer Mfg. Co. v. Wemple, 150 N. Y. 46.) The relator did not use these bonds in its business otherwise than as securities, or as evidence of the indebtedness of the. obligor to it. It did not borrow money upon them to use in its business. The Comptroller held that these bonds were capital stock and not surplus upon the assumption that as the relator took mineral from its-mines it decreased their value, and thus impaired its capital stock. Ro sales of the relator’s capital stock have been made. Its-treasurers-statement is 4n evidence as follows : As to-the value of' the mine and works I could of course only furnish you an opinion,, as the value of a mine is extremely problematical, and if the mine was exhausted the works would be useless.” The fact that the, capital stock was- paid for in mines and mining-property 'probably eliminated the danger of an underestimate of the value" of the stock in the first instance,, and suggests that the earnings'would be- needed to hold "the stock at par. The operation of a mine for a dozen years may decrease its value by exhaustion or increase it by development. How it is in this case we do not know. The relator ought to show that the Comptroller was wrong in his valuation. (People ex rel. American, Contracting & Dredging Co. v. Wemple, 129 N. Y. 562; People ex rel. Western Electric Co. v. Campbell, 145 id. 587.) We do not think it has shown this, ■ Determination of the Comptroller confirmed, with costs. All concurred. Determination of the Comptroller confirmed, with costs.