Opinion
January Term, 1901.
Samuel E. Williamson and Ira A. Place, for the relator.
Robert E. Steele, for the respondent.
The relator challenges the assessment as unauthorized by the statute as an assessment upon interstate transportation. It is claimed that while part of the mail transportation originates and terminates within the State of New York, another part originates or terminates without the State of New York; that it is impossible to separate the part which is purely of a State character and the part which is purely of an interstate character, and that, therefore, no part thereof can be taxed. It is not disputed that if mail, originating and terminating within the State, can be separated from that part which is interstate, the relator should have distinguished them, and its failure to do so forfeits its right to claim that the assessment is in violation of the statute. The determining question, therefore, upon this branch of the case is whether these items are separable.
From the evidence of the relator it appears that there are no books kept by the relator or by the post office department from which could be ascertained the proportion of the mail carried which is carried wholly within this State, or that which is interstate in its character. It is sworn that there are no possible means of ascertaining the proportion of mail which originates and terminates within the State of New York. It appears further that the contracts under which this compensation is obtained are made and necessarily made in such a manner that the compensation is for both classes of transportation. In almost every pouch of mail received by relator is included mail destined for points without the State, and in nearly every pouch delivered is included mail received from without the State. These facts stand uncontradicted upon the record. In view, therefore, of the express statutory exclusion of those earnings arising from interstate transportation of mail as a basis for the levy of the tax, and of the impossibility of distinguishing between the different classes of mail transportation, the Comptroller was not authorized to use any portion thereof as a basis for the ascertainment of said tax.
The relator should, therefore, succeed upon this writ.
All concurred, except MERWIN, J., not voting.
The determination of the Comptroller reversed and the account restated, and the tax reduced by the sum of $8,270.91, with $50 costs and disbursements to relator.