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Opinion of the Court.

would be impossible to overcome the force of the answer of the defendant in which it alleges that in the years 1881 and 1882 it was a manufacturing company carrying on manufactures within the State of New York. The admission is conclusive that the corporation was engaged in business in the State in those years, though, we are clear, not in such a business as rendered it a manufacturing corporation exempt from the tax prescribed by the statute.

To dispose of the position that the plaintiff in error was a manufacturing corporation, and therefore excepted from taxation under the statutes cited, it is only necessary to refer to the articles of association of the company. By them it appears that it was organized to conduct the business of buying, selling, leasing and operating mines and mining claims in the Territory of Utah, and smelting, reducing and refining works there and elsewhere; of conducting a general mining, milling and smelting business in all its branches, including buying and selling mineral ores and bullion; of carrying on a general mercantile business by buying and selling such goods, merchandise, stores and miners' supplies as are usually kept in and required by the wants of a mining camp or settlement; of building and operating all such roads, tramways and transportation routes as may be convenient in transporting the products of its business or procuring supplies; of purchasing, hiring and holding all such real and personal property, wherever situate, as may be required in carrying on any of its business, and, when no longer required for business purposes, of leasing, selling or exchanging the same; and generally to do all acts and things incidental to a general mining business, or to any of the aforesaid pursuits. They also declare that it was primarily formed for the immediate purpose of working and developing the estate, property and premises known as the Horn silver mine, and the treatment and reduction of the ores and metals therein contained. There is in the business thus detailed nothing that would characterize the corporation as a manufacturing company, and in no proper sense was it engaged in a manufacturing business within the State. The bullion taken by the company from its mines was shipped to

Opinion of the Court.

Chicago, and, after being refined and the silver separated from the lead, it was forwarded to the United States assay office in the city of New York, where it had an office, not for occasional business transactions, but where its transfer books were kept, its dividends declared and paid, and other business done by it such as is usually performed by corporations where their principal office of business is situated. It is true, the greater part of the business of the company was done out of the State, and the greater part of its capital was also without it, but the statute of New York does not require that the whole business of a foreign corporation shall be done within the State in order to subject it to the taxing power of the State. It makes, in that respect, no difference between home corporations and foreign corporations, as to the franchise or business of the corporation upon which the tax is levied, provided it does business within the State, as such corporation.

There seems to be a hardship in estimating the amount of the tax upon the corporation, for doing business within the State, according to the amount of its business or capital without the State. That is a matter, however, resting entirely in the control of the State, and not a matter of Federal law, and with which, of course, this court can in no way interfere.

Since this tax was levied the law of the State has been altered, and now the tax upon foreign corporations doing business in the State is estimated by the consideration only of the capital employed within the State. It is said that against nearly all other foreign corporations, except this one, the taxes upon their franchises have been computed upon the basis of the capital employed within the State; but as to that we can only repeat what was said in the Court of Appeals of the State, that, if this be true, the defendant may have reason to complain of unjust discrimination and may properly appeal for relief to the legislature of the State, but that it is not within the power of the court to grant any relief however great the hardship upon

it. The extent of the tax is a matter purely of state regulation, and any interference with it is beyond the jurisdiction of this court. The objection that it operates as a direct interference

a

Statement of the Case.

with interstate commerce we do not think tenable. The tax is not levied upon articles imported, nor is there any impediment to their importation. The products of the mine can be brought into the State and sold there without taxation, and they can be exhibited there for sale in any office or building obtained for that purpose; the tax is levied only upon the franchise or business of the company.

Judgment affirmed.

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No. 1343. Submitted November 17, 1891. — Decided February 29, 1892.

In order to justify a court in refusing to enforce a settlement of a quarrel

between the members of a large family, growing out of disputes about the wills of their father and other members of the family, and out of money transactions between brothers and sisters, upon the ground that the settlement was obtained by misrepresentation, active or covert, or that it failed to express the real intent of the parties, the testimony should establish the fact clearly and satisfactorily; and in this case it is not so established.

This was a bill in equity filed September 4, 1888, by the appellant Chandler, as executor and trustee under the last will and testament of George P. Pomeroy, deceased, against Josephine Pomeroy, Julia Pomeroy Morrison, her husband, William F. Morrison, and Alfred Mills, surviving executor of the last will and testament of George Pomeroy, father of the said George P. Pomeroy, to enforce a certain agreement of settlement between George P. Pomeroy and his sisters, devisees of the estate of George Pomeroy. The bill was subsequently dismissed as to the defendant William F. Morrison, and about

Statement of the Case.

the same time Eugene C. Pomeroy, son and heir at law of George P. Pomeroy, appeared by his guardian and asked to be made party complainant, if the court should deem it necessary or desirable, but no order appears to have been entered making him a party.

The case arose out of the following facts: George Pomeroy, of Madison, N.J., died June 24, 1880, leaving a will, dated July 22, 1875, and an estate valued by him a few months before his death at $893,000, consisting of personal property estimated to be worth $538,000, and lands in New Jersey, New York and Missouri valued by him at $355,000. The personal estate, however, when inventoried was appraised at $180,000. His family and heirs at law then consisted of his wife, Abba S., and four children, George P., Edward, Julia and Josephine. His will was duly probated at Morristown, N.J., and letters testamentary issued to Edward Pomeroy and Alfred Mills, who were appointed in the will as his executors. Edward Pomeroy died March 6, 1887, whereby Mills became, and still is, sole executor.

The estate of George Pomeroy was disposed of under his will as follows:

a. The executors were authorized to deliver to the New York Life Insurance and Trust Company securities to the amount of $50,000, to be held in trust for the benefit of his wife during her life, and upon her death to divide the securities and proceeds equally between the three younger children, Edward, Julia and Josephine. His wife died in February, 1883.

b. Securities to the amount of $30,000 were directed to be deposited with the same company, to be held in trust for the benefit of his son, George P., during his life, and at his death such securities and the proceeds thereof were also to be divided among the three younger children. George P. Pomeroy subsequently married Harriet Cowles, of Cleveland, who died after giving birth to a son, Eugene C. Pomeroy. George P. Pomeroy himself died in November, 1887.

c. The testator directed that no partition or sale of his real estate should be made until his executors should have sold

Statement of the Case.

real estate to the amount, of at least, $100,000; and further directed that the proceeds of the first of such sales should be deposited with the same company until the amount should reach $100,000, which should be held and invested for the benefit of his two daughters, Julia and Josephine, with instructions to collect and pay to each of them the interest on $50,000, and in case of the death of either of them without issue to pay such trust fund in equal shares to his son Edward and his other daughter, and the survivor, (if one of them be dead,) the issue of said Edward and of said other daughter representing their parents respectively.

d. The residue of the estate, aside from some immaterial legacies, was devised to his three younger children, Edward, Julia and Josephine, in equal parts. It was provided that the homestead at Madison, N.J., should be kept up by the three younger children so long as they and the widow could live harmoniously together, etc.

As between the two executors, Edward Pomeroy took charge of the personal assets of the estate. As directed by the will, the trust fund of $50,000 for the benefit of the widow, and that of $30,000 for the benefit of George P., were established by placing with the New York Life Insurance and Trust Company the requisite securities.

George P. Pomeroy had been trained for public life, and was abroad most of tle time, engaged in the foreign diplomatic service of the United States. During his absence a quarrel arose between Edward and his sisters Julia and Josephine, in which the latter claimed that he had wasted their estate, and was indebted to them in the aggregate amount of $252,000. To recover this amount the sisters brought suit against Edward in one of the courts of New York. In that suit they charged that Edward had speculated in stocks with the funds derived from the estate of his father, and had made large profits in which they should share, and had suffered losses with which they should not be charged. Prior to this suit, however, and in February, 1885, he turned over to each of them securities to the amount of $50,000, besides some small annual payments in cash.

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