Untitled Texas Attorney General Opinion

“:.‘. OFFICE OF THE ATTORNEY GENERAL OF TEXAS 0 AUSTIN L .I o- 09MANN AriauuI oI*uIL Honorable %lliam J. Lawson Seorster7 ot state Austin, Term Attention: Abner Lewis Dear Sirs of Auigwt, 1926, the oopital atook 00 and ohaiqlng t a fse,of $l,lL50.00 was an additional Q5.00 for rive otober 29, 1942 this department t reduoing the oapltal &oak ior mmt obaxged a f8e of $200.00. "YOUtill absssva th.It this lettor which we e~OlOst3 rOX th8 fiTat tfLW TsfOrS t0 a fee Of '$2,500.00 being the i?alclxLrnum foe this de~tmeat oaa oharge. Vhf3 ori,~lnsl chsrtor of this aoxporation.hati been misplaoed and from notetion in the am1~M~!8nt -norable Xllllam J. Lawson, Pegs 2 rllsd Is huguet, 1926, it appamatlp hpa bssa II&S. plaoed before that date and we are therefore unable to ascertain the amount of flllng ?ee paid at the time the chartar was granted, but we Uo know that the illlag ices have araeeded $2,500*00 In the above nentloned amsndmenfre. *Th.ls.depart~~t has heretofore adopted the polioy that upon the payment of 92,500.OO for few at any one tlxie then and In that eveat there is no oharga for subsequent ?lllngo, but whore tho tees are paid as aad whoa flllnge art) aade that ths usual fflfng fee chargeable at the time o? ?lllng the omendmeat la made. Will you ploaso advise thla departmantwhethsr or net the Statute mans that a?tdr oorporatloss havo reaohad the iillog fee of $2500&O whether this deparfmmt rhoulil atop tsklng adUi.tfonal rem or are we oormot in the pollo~ adapt&sthat uhen tfu $2500.00 mariarumfee 113paid in one~tinm then 6x0 ws aathoriaed to make subaequeat filings wfthout additional fees. * .* . ." Artfole 3914, of the Revised Civil @atotes of Toxa8, ae amended by the not.8 of 1931, Ir in part as’follows: Vha Seoretary of Stat0 18 authoriml mil ro- qulrad to oharge for the use of the Stats the ?ol- lowlng other fees: Upon filing eaoh oharter, tnmmlmmt’ or arp- plament thereto a? a ahaiuml anb &oak, r&road, mgsetlo telegraph line, atmet rallwe~ 02 ezpmas eorporatloa, a filing fee of 30 fiundFed ($200.00) Dollars, provided, that I? the authorized oapital stoak exoeada One Hundred Thousand (~100,OOO.OO) Dollars, an addltlonal illfag fse of Flit) Cents for each One Thousand ($l,OOO.OO) Dollaro authorlzad oapltal stook or fraotiosal part thereof, siter the first One Hundred Thousand (+,lOO,OGO.OO)Dollars, shall be paid. -. . . . Boaorab1.e Xtlllam J. Lawson, Page 3 OThe mxlmu~~?llln(j Pees to be pal4 by an7 dometlo or foreign aorporatlon shall be Twwtp five Hundred ($?rOO.OO)hallare. t'.. . .= In the oam of General Uotora Aeoe,g+use Corpora- tion v. EMallura, 3eoretary OS Stats, 10 S. ir. (26) 687, the Oommlsoion of Bppeal~ was aeating with a foreign oor ration that had applied for and reoslved a psrmlt to do buat?aess in Texas b 3anua , 1920 its oapltal stook then balng $2,000 000.00. In June 1921, 7 t filed an smeadnent 0r it9 chartor inoma8 tos its oapital etook to $1 000 000.00 and in oonrwotioa therewith paia to the Seamtary oi S&e a rhing foe or $2,0&O&0. In Rowsaber, 1922, It tandared ti the 3omf&ary of 3tata a oop7 o? an amendmentluoreaslng its oapltal hook to #l&00,000.00, and In oonneotion thornwith tendered $460.00 as riling r008. This lut aumwas reoelved by ths 3eoxWaa-7 of State, but apoa ths iruistsnoe that Lt was uot a ~uf?lioiOnt emour& fa Ury, 1923, a oop7 Of another IimaIkdmOut to fibs crharter, ln0~~8ing the aapitcl stook to $66,000,000.00, was tendare for fllix& but no fllfng or permit fee was tan&red and ?Uln& thoz~? was r&wed. In February, 1924, a oop7 Of the fourth am&ant, inomarring the oapltal stmk to ~7,600,000.00,, was tender64 for riibg, but no psntdt or ?lllllg fee was mado OF 0rrmd, utd the Swmtary or satal refused to iii0 rIam* In h&l, x9* a ?l?th ameu4ment, lnomaslng the oapltal stodr to @9,000,008.00 was tendered, but ao permzt and ?Ulq ?ee tea mado or offond and ths ruing or this iunenamwt was re?usea. OnJsnuary 20, 1926, wpiea of all a? said amentinta were tanQore# aad Usmad md8 tbkt the7 ba riled bp the f;ooratary 0r State. MO further mnt or re08 lhgs made OT orrbrbd, the oorporation imsfoting that, dnoe it had already paid a6 muoh as %2,500r00 In eon- neotlon wLth the rimg or Its ori&%al 0barWr and llQton6ulutm, it had paid the maxlautm-a ln,;.the atatutoI but the Beoretary or 3tat.e refused to rile the eopiee thus tendered. 2harearter relator sou&t and sdeua?adpennlaslon to file this pzOeea~n61 in mndaitnm a$aA!.nst the Cearefary of State and sought to 0ompe.l her to rile said aopies or sala ammlments without further pay- ment of reee OT charges. Relator contended that, under the statutes, it had paid to the Ssoretary of State all ?eee or charges properly colleotlble. The respondent oontendcd that sash separate tfl- lng o? M bllllsndmentsubsequent to the orlpinal filu was c sopcrate event within the meaning of the ststutes and entitled Esnorable ‘~flliam I. Lawson, Page 1 the departslent to aharga upon the basic of $10.00 fox? eaah additional $lO,OOO.OCaa,altal stook, and that tlm lifa.ttation oj’ $‘2,400.00 referred only to the inoreaaed capital stosk represented In suoh subsequent illis& In paasin,q upon eald question, the Co~uaiasion i Appsale held that suah ohargas and fees ara taxes and la 1d dawn the fOllOrin& rules in regard thereto; -he purpose of the law being to plaoe a tax upon the right of foreign sarporatioas ta do busi- neas within our borders, it muat ba interpreted la the light or oonstitutlonal Umltatiohs as to uni- formity, sad, when thus interpreted, it is plaia we thluk thut in all 6aaes. whether upon oaa or i g- lsal S&g or upon subsequent illb or fllingr of a oopy or oopiae of oharter or oharter amendaumts no more oen ba char&e4 or oolleoted than the maxi- mum of $2 500 named in the statute, We think tho langtmge lln no event’ means that under no olroum- atanoem oan the appllaant for a permit to tranaaot business in the state be oharged mre than the aax& rmmnamed: DIt is aigaiSlaaut that it beooma8 the duty oi the seoretary of state, when a oartified copy of the artioles of inoorporatlsn has been flied an& that offioer has bean satisfied by the showing aada by the applloant that a petit ahall be issued, good for a period of ten yeare, and that thareatter when suoh ohm-tar has been axended or supplemented, that a oertiflad so y of suoh amendmentor supplo- mant shall bs lmmed! ately filed vith the seordar or state. ‘Thara ia 110disorat1on whatever left wz th the seoretary of btate aa to such aupplwaental ill- ing. It ia a requirement of the law for the ~zO- teotion of the pub110 d4alls@ with the ~OrpO~tiOn~ The atatutes do not oontaaplate a new permft or etaa an amendment of th8 per;nit pr~TioU8ly iesued. Thor@ is nothing to 1nU.iaat.e that the aeoretary of state has auy euthority uhateter to revoke, amend, or 8UR- plement the permit pretlounly issus& This Is a matter sor judfefal aognisame In the absenoe of statutory power in the searatary of etate. =Tha relator r0r its protection in tha trana- aotion of ita business ullaer its pamalt, is entithd 9 .~ Sanorable bllliam J. Lawson, Page 5 to have its emendmmts duly l&led by the 8eoretary of state. The duty ta flla La a plain ministerial aoti "It follows from what we hare said that we think the mandamusprayed for should bo Issued, and we aooordingly so reoommend.w Thla ruling was also approved by tha CommIssIon of Appeals in the oase of Auat$n Pet. Bank OS Austin v. 3ha~ppard, Comptroller of Pub110 Aooounts, 71 5. 'R. (2d) 242. In thir aase the Barber 4sphalt Ctmpany, a foreign oorporatlon, had been granted a psrait to do buaiaesr in Texas on Earah 7, 1919. Its aapital atook was $7,OOO,OOO.OCand It paid to the Saora- tary of State a flllng tee of $2 500.00 whish wao ths paxlmum -. fee raquIred or foreign osrporat!ohs. dbout Marah 31, 1922, It amended ltr oharter and Iaareased its oapltal staak from .a ~,000~000.00 to $~O,OOO,OOO.OO,and in due tlam it tendered to the Sooretary o? State a oopy o? its aasnded ohatier, with the request that same be filed. The Seoretary OS State dmmd- ed an addltlonal filing in of $2,500,00 and refund to Lila '. suah amen&ant uatil suoh fee was pald. The asphalt oo~pany protested the payment 02 such fee on th8 ground that it wea not due to be paid under our law. The protest wae uaarSilIng and aaid fewwas then paid. '$he oourt atatod that from them raots it was loldeat that the asphalt oompanf wan) entitled fo hare its amendmantatiled rllihout the iyynt of a aeoond Isa or $2,500.00, and thattha sooratary of State acted under a mistake of law in refusing to file auoh amendmentuntil the additional fee was paid. Therefore, that the tmumaotion .xe- eulted In the state reooiring money intO Its l'WR8url that it bid not own and was not entitled to raoeive. 4 c&in for a refund of eala 82 500.00 weuaprnentod TV the Cl&w Committee of the 4)r(! ~&bIturu. %AObing apprwed It was lnoludad la the MIaoellaneous Claims Bill aa& passed by tha 4gialature aad approved by the Owemor~ !fho Comptroller issued a warrant to owsr said $2,500.00 olala aad S- was transferred to the dustln Rational Bank. The bank presented said warrant to the Treasurer and payment thereof was refused aad this loandams prooeediag was then instituted by the Austin National Bank. 3uoh mandamuswas granted and the oourt hald that the payment of said eddltloaal $2,5f%M) riling iea by said asphalt aompaay waa Illegal and should not have been required. E0norable Willlam J. Lawson, Pago 6 It Is the oplnlon o? this department, themfore, that it lB 1I0t necessary fOF either dmBStl0 OF fOFe%gn OOF- pomtlons to pay the maximumSlllng See o? $2,500.00 at any one time, but that oq atatutes are oomplled with when the total Slling rees paid by any suoh oorporatlon amount to the sum of $2,500.00, whether made in one payment or in Bermal payasnts, and that when said ruaxlaumsup has boom 80 paid no ?uFther ill&g fees are due or should be oolleoted. We uall yonr attention to the iaot however, that the proYi.8lon that suoh fes shall not sxosed ihe.Bum O? $2,5OO.OOwe8 not eon- talnsd in Bald statute as it was originally pabsed, and that Bush pro~lslon a8 to dltiersnt oorporatlons has m put ln asmndmants to said law that have been passed at rarlous time8. The last amendmentamklng said llaltatlon apply to all domes- tlo aad foreign oorpolatlons was passed in 1931, but prior thereto said llmitatlon was mado ts apply to different 00r- poratlona at dirtsrent tlwss, one or Bald aamndnont8 ha+* been passed in 1917 and another In 1919. In passing upon 8uoh filing rear, to bs paid by othor oorporatlons la the futura, ltwlll be rrsorssary to take into oonsldmatloa whotkr OF mot aq' Or meld file8 WWO jBi%d-iOF to 1917 OF1919. A8 to tbs fee that ahould be paid by ths Dallas Rail- my and Teminal CompanyrOF tha iiliog o? the last the raotr rtated by yocshow that a part oiths paid by said oampan~ neoo~sary to snke up a total was pa14 00. Rotember 28 1917. The law ?lxing a llalt o? $2,500.00 was not passe& until 1919 and beoam siieotlre on Maroh 11, 1919. Thsre is mthfag fn said law to show that it was intended that the Seereta 0r State, in parafng upon whethsr or not the total fee8 of 32 ,500.W had been paid, should take into oonsldsratlon the Dayment oi fees prior to the thee this law booawe sffsoti+e. Bald oompsny not hating paid a total or $2,500.00 in filing fees 8ixme said law bs- oam sffeotive, we still adhen;& 00~ opinion Ho. O-4917 aad hold that tha illlag iee for suoh amndmant is $200.00. TFustisqg that this aatisfaotoxily answers your ln- quiry, we are