New York Cent. & H.R.R. Co. v. Gill

• Decision Date: 13 January 1915
• Docket Number: 1082.
• Parties: NEW YORK CENT. & H.R.R. CO. et al. v. GILL, Internal Revenue Collector.
• Court: U.S. Court of Appeals — First Circuit

219 F. 184

NEW YORK CENT. & H.R.R. CO. et al. v. GILL, Internal Revenue Collector.

No. 1082.

United States Court of Appeals, First Circuit.

January 13, 1915

Ralph A. Stewart, of Boston, Mass. (Edmund S. Kochersperger, of Boston, Mass., on the brief), for plaintiffs in error.

Asa P French, U.S. Atty., of Boston, Mass. (Leo A. Rogers, Asst U.S. Atty., of Boston, Mass., on the brief), for defendant in error.

Before PUTNAM and DODGE, Circuit Judges, and ALDRICH, District Judge.

PUTNAM Circuit Judge.

This is a question of a corporation special excise tax, assessed under Act Aug. 5, 1909, 36 Stat. It was assessed against the Boston & Albany Railroad Company, which had been duly leased to the New York Central & Hudson River Railroad Company. Under those circumstances the New York Central & Hudson River Railroad Company paid the tax under protest, and claims that the tax should be refunded to it by force of the application of the decision of the Supreme Court in McCoach v Minehill & Schuylkill Haven Railroad Co., 228 U.S. 295 33 Sup.Ct. 419, 57 L.Ed. 842, and of other decisions of the Supreme Court of like class.

Possible distinctions between some of the cases decided in the Supreme Court and the case now under review have been suggested; but, considering the interpretation to be given to the words 'doing business,' as used in this statute, those distinctions are fanciful. That they are so in this connection is shown by Anderson v. Morris & Essex Railroad Co., decided by the Circuit Court of Appeals in the Second Circuit, on September 9, 1914, 216 F. 83, 132 C.C.A. 327. There the meaning of the words 'doing business' in the sense of this statute was fully considered, and interpreted as having an entirely different meaning from the same words in other statutes framed with reference to other purposes. That case related to a lease from the Morris & Essex Railroad Company to the Delaware, Lackawanna & Western Railroad Company; and we accept the interpretation there given by the Circuit Court of Appeals for the Second Circuit, construing the words in this statute, 'doing business,' or 'engaged in business,' as having direct reference to the active business for which a railroad corporation is incorporated, as correct. The court held, at page 91, that these words had such relation in this statute that they must be given 'an ordinary and natural signification,' and in effect that the corporation must be and actively operating concern. Further, the court held:

...