THE ATTORNEY GENERAL
OFTEXAS
AUSTIN. TEXAN
e
This Opinion
f
Modifier OpMon
Honorable J. T. ?6oMillln
Deput9 Comuini~loner
Department of Bankinp,
Auatln, Texas
Dear Sir!. Opinion Ho.. O-1938
Rer State ,bankr - Iuaorporation
k Fesr tar amendment of ahar-
ter - Delinquent teen -
Collection by fhe preeent
Commlrrioner
We aaknouledge receipt of the following re-
quest far ar~oplnion, to-wit; -_._
"This io to aaknorlsdge the mat&p%
of'your opinion In *hl-da you oonatrue the
provielons’of Artlole 3521~0f the Revised
Statutei, relative to Seer charged in oon-
neotlon with the character8 bf benka and
benke and truet ~oompanies.
"Under that opinion a ice of $50.00
is aolleotlble,with any amendment. In
addition .to thla See, if;the Pmendment in-
cludes an lnareaee'of capital etoak in ex-
aem of $10;000.00 then a fee of $10.00 ..~
per $lO,OOO.CO for aoh $lOIOOO.OO In ex-
oem of the Sirat i 8 aolleotible.
*Thh Department has been, ,ior a num-
ber of' years, operating.under an erroneous
oonetruation of AxMale 3921. It haa In the
past aolleated only $50.00 in conueatlon
with an9 emendmeixt lrrespeative of whether
the amendment inareaeed the capital stock
or not.~ Obviously It la the duty of the
Honorable J. T. McYIllIn, page 2
present CommIasIoner to colleat this de-
ficiency of ices in 80 far aa It was incurred
during hle admlniatratlon.
“It haa occurred to me, however, that
It might poasiblg be my duty to’hatre the
booka of thIa Department audited and to aol-
lect the deficiency In fee&wbIoh arose
during past admInIstratIona. Thin obvlous-
ly would entail considerable expenre, and
before undertaking such an operation I
would like to reapecttilly submit the fol-
lowing questiona:
“1. Being aware that, during past ad-
ministrationa, the several banking commla-
sloners operating under an erroneous con-
struotlon of Article 3921 have failed to
collect the.full fees due the State In con-
nection with the amendment of bank charters
and the amendment of charters to bank and
tN8t companies. Ia It my duty, aa the
present Incumbent, to have the books of
thIe Department audited for the purpose of
determining the deficiency and the corgora-
tions from whom fees are due., and to proceed
to collect those fees?
@2. In a number of lnetancea the bank%‘-
in question, sate+ increasing their capital,
have nat$onallced. Would thin fact in any-'
wire affect by duty or the liability of the
_ reapeative corporations to pay the feea In
queationt
“i. Subsequent to the Increase In
oapltal rome of these corporationa have
become lmolvent and/or either, are now In
the process of liquidation, or have been
&mpletelp liquidated. Ie it my duty to
,attempt to collect the fees In question
from the Insolvent banks, if the rame la in
the court of liquidation, or from the stock:
holders If the bank Ie completely liquidated?
Falling to collect, Is It my duty to pursue .
the bond of the Commlaeioner under whose ad-
ministration the shortage aro8aT”
Honorable J. T. YcMIllln, Page 3
We have careft+ky oonsldered your questions
and beg to answer them as follows:
1, By the terms Of Article 3921 of the Rep
vised Civil Statutes, it is made the duty of the BankIng
Comnissloner to charge a& receive for.the use of the
State aertain aharter and charter amendments fee, as
therein set out, It Is the duty of the Bw Com-
missioner to oolleat all fees properly chargeable under
this article of the statutes, whether such fees aa-
aNi#ed under his admlnlstratlon or that of a predecessor.-
It oan make no difference whether the delinquency was
due to oversight, mIaconstructlon of the law, or other
cause whatsoever. The law fixes the amount of such
fees and it is not within the scope of the CommIssIoner~s
power to remit the ssme, or any part thereof. What he
cannot do directly he aannot do Indirectly, as by more
failure for any retison to collect the proper fees. It
will be seen that these fees are collectible by the
Bankl~ Cotissloner, but:: they are for the we of the
State. So that, no period of limitation will bar the
State*8 rl&t to aolleot delinquent fees, or fees not
paid through oversight or mistake. Of course, the
Banking CommlsslonerIs clothed wLth the power to
make such collea~lons.
Your first wetion, therefore, is answered
to the effect that 10 la the duty of the pzepent? Bsnk-
lng CosWssloner to ascerta.ln.froti the books of your
department the respective defiolenales, and the amounts
thereof, dub by State banks, whose aharters have bien
amended In accordance with the statutes, whether such
. fees aoormed under 9vur om adminIstration or snother.
2. Where a State bsnk shown bg your boo&s to
be Indebted to the State for charter of charter-smendment
fees has natlonallsed, the dissolving corporation would,
of course, be liable for such unpaid fees, and the National
bank taking over its affairs ml&t or might not itself
be liable; according to the terms of the aontract of
take-over. In other words, a National Bank tskIng over
the affairs of a State bank would become lndlvIdually
liable only for such debts of the r(rtlx%g Stat6 bank
as It assumed to pay but none other,
Honorible J, T, YcXillin~ page 4
3. Whsre a bank shown by your books to be
delinquent wltla respeot to oharter .or amendment of ahsr-
ter $sdi'lrin pPooes8 of llquldatlon,you, as'llqul-
dator of ::sudh bank, should list and ,approvq as .a claim
on behal(lof the.atats of Texas the amount .of such de-
lIn~ent*$ees, mase.,to ba pald.out 6f the assets ‘of the
bank.a.8 a general unppdferred cU4.m~ If the llquida-
tlon’ hasp bski ilnall olosed withoat the fiowanae of
such a olalm~ it woJ d appear to be lost to the State.
.Artl+le ‘465. of the .Bevised Olvil Statutes of Texas,
authoriilng .&d risquIrIng the.deposltin trust by the
B~~ng.;Cqnmifssl&er.of .a .~sumruffioIent to pay.the
un+al@ed: dlvldends ang ~deposltors of. i f&tiled bank
$8 ‘not .broad enough to corer, au& au item. Such un-
gald ‘fess’ be to the ,State. do not constitute a’dlv%dend
or deposit, wlthln the meaning .of *hat statute. Further-
mare; :lf the liquidation has been blosed, aad the B-0
ing Com&ssloner has -been dlsahsrged, then he no longer
has any offlalal dut oi. authotilty rith respeat4o .@ach
llquldated bsnk ,or i t ‘a affairs. .As Banking Contmlssloner,
he is; a:,+tmnger to the whole +atteri
..
It ,$a no; the duty 'of' yourself~ as Banking
Cgsm.%ssloner, in. any”eveat $0 undertake. the aolleatlon
of ‘iuohmdeUnquent fees .upoa tie .:bond of: a redeaessor.
of 9ows~'~der~~whoseadml.plrt~atloa thi deP lnqwen6y
aa9 h+ve rClasti Tbo .Bank2~ Cosns%rsloner~s orfiaial-
bond runs; to thi Stat? ,to ,be approved. by the Governor,
(Rev.‘:. dir; Stat l Art l 3&j ,., ,and suaoes’sor CommIssloners. end
therefor?&, are not .authorined to lnstltute suit upon
suah ,a bond, for an$ breaap of.duty lfutsorver of a
for&r .OaamUrlonerc
llp&another, reading of our opinionNo.
o-1841, we deslre.t6 dlsauss further the questlan there
under aons$deratio&
From ths opinion of Chlef’Justlae ealnes in
St,Louis ~8.W.R9. 00. YE* Tad, 64 8.W. 778, we quote
oxcerptaas foll6ws’
tat page 776779 1
s. , 6 . The determlnatlon of the
aase depends upon the aonstructloa of so
Honorable J, T. YcMIllIn, pagi 5
much of article 24.39 of the Revised Statutes
as presarlbes the fees to be charged by
the secretary of state for fllIng oharters
or railroad corporations and smendments
thereto. That~ part of the article reads
as follows: *Art. ,2439. The secretary of
state, besides athsr fees that may be pre-
sarlbed by law, ti authorlsed and regired
to charge for.the use of the state the fol-
lowing fees8 For’ each and every charter’
amendment or supplement thereto of a prl-
vate aorporatlan created for the punpose
of operating or construoting a railroadi
magnetla telegr- line, or street railway,
or express company, authorized or required
by law to be recorded in said department, a
fee of one hundred dollars, to be paid when
ssId.charter is filed; provided, that if
the authorlsed capital stock of said cor-
poration shall exceed one hundred thousand
dollars, it shall be required to pay an ad-
ditional fee of twenty-five dollars for
each one hundred thousand dollars authar-
lsed capital stock or fraatlonal part there-
of, after the first.@. ‘. . .s
“. . ~. On tie other hand, It is but
_ just and equitable, whenever a corporation
organized for profit tenders an amendment
which increases .its aapltsl stock, that It
should pay the additional tax for such in-
arease, just as if it had filed an original
charter with the same smount of oapltsl
stock as the increase. . ‘.*
a:. ‘. The reasoziab%e and equitable
Nle upon the filing of an amendment is
to charge for the amendment .the fixed fee
as for an original. charteri snd, in case
the amendment adds to the aapltal stock
Honorable J, T, Mck!lllln, page 6
of the oorporatlon, to charge the same ad-
ditional fee for such Increment as would be
aharged for an original aharper with a
aapltal stock of that smount, TMs is our
oonstruatloa of what the legislature In-
tended by the statute In questloa;and it
is lnaonslstent with its terms, , ,*
(atwee,7~9~7@)
s, , . , We oonalude that the only
reasonable construction of the statute
in question 18 that when an~amendment to
a ahsrter is filed, if there be sn increase
of the capital stock by au amount ‘over
$100,000, t&en the additional fee Is charge-
able upon the excess of such increase over
the amount named, but that, if the amendment
does not authorize au Increase of stock, then
the fixed fee 6f $100 only should be charged
far its filing."
A# the time the above oase was.declded, the
statute therein Involved applied also to state banks
and the filing fees for such bdnk&@ corporations
were paid to the Secretary of State.' However, In
1917the Legislature provided that amendments to bank
aharters should be filed with the BankIng Commlss~loner
snd that he should charge the same fees as were then
charged by the Secretary of State. Ch. 205, p, 469,
_ General Laws, 35thLeg. Thereupon, in'~the 1925 codi-
fication, Article 3921 appeared, reading In part as
_iplbBBr
"The BankIng Commlssloner shall charge;
and receive for the use of the State the
following Sees:
'I. . . .
"For each charter, amendment or supple-
ment thereto, of a bank or bank and trust
company, a fee of fifty dollars'shall be
paid when ka3.d charter is filed, and If the
Honorable J. T. YcMlllln, page 7
authoriced aaplt'al stock of such aorpora-
tlon exoeeds ten thousand dollars, it
shall be required to pay an additional
fee of ten dollars for iaoh additional
ten thoussnd dollars of its authorlsed
acpltsl stook or fraatlohaLai part thereof
after the fir&, provide4 suah fee shall
not exceed twenty-five hundred dollsrs.'
It 1s readily seen that the present Article
3921 is praatlaally ldentloal dth the statute under
oonslderatlon in the Tod aase, suptia. We advert to'
a dlsausslon of Judge Gaines' language lnthat case.
Be says that "it is but just.ard equitable, whenever
a aomoratlon. . . tenders an am&sent which in -
crea& its &pita stock, that it should pay @ ad-
dltlonal tax for such increase. just as if it had
filed an-orlnlnal charter rith the same smount of
capital as the increase." Camp re an orl@ml
charter Soti a corporation having a aapltal stoak
of $~O,OOO.OO dth an amendment increasingthe
capltai st&k'of another oorporatlon by ttie sum
of $~O,OOOcOO.~ Judge Gaines plainly says that the
fee for filing the amendment of the one corpora-
tion should be the same asth6 fee for flllng the
original charter of the other. For SIlIng the original
chsrter the fee would be $90.00. The fee for filing'
the amendment would'be the iame amount if we ape to
regard~his language. Further on he says that #The
reabonable and equitable mile upon the SllIng of an
amendment is $0 charge for the amendment.the fired
fee as for an.orlnlnal chartert end, In case the
smendment adds to the oapital stock of the aorpora-
tlon, to charge the ssme~addltlonalfee far au-&
increment as would be aharged for an orlRIna1 charter
tth a aavltal stock of that amount.". The,words
"that axnotit" have referenoe to the amount of the.
lmiwment. For~the~flllng~ of a charter the fee if
10.00 ~er~,#10,000.00 is not laid uppn ths first
10*000;00. ffths fee for sin smendment Inoludes
t 10.00 for the first $lO,OOO.OO of the increase,
then the aam& fee is not'belng charged for the fib
lngof the smeadmeat as muld be aharged fati,the fll-
lng of an orlgInal.chart&r with a capital
Honorable J, T, ~abtillin,page 8
the 811018smount as the increment, A lsrger fee is
being charged,
The statute says that "For each darter,
amendment or supplement thereto, of a bank or bsnk
and trust oompany, a fee of fifty dollars shall be
pal& when said Charter 1s filed, 'etc. Quite evl-
dently, for the-to be entitled to the flfty-
dollar fee for the SllIng of the smendwnt, the word
"aharter" as underlined lnthe.quotatlan must be
given the meaning "charter, smendment or supplement."
We think this neaessarlly calls for the term "authorlxed
capital stock" as theregfter used in the statute to
mean nauthorlxed lnorease of a&tal stock" In oase
of smendments. And such we.thlnk was the holding of
Judge Galnes.
Practically an identical statute govermthe
fees collected by the Secretsry.of State from private
corporations created for profit. Art. 394, Civil
Statutes. Our construction of Art. 3921 is in aaaord
'with the opinion of Assltant Attorney General E.F.
Smith to 9. L. Staples, Searetsry 6f State, dated
August 23, 1921, pertaining to Art. 39l& From tha+
oplnlbn we quote:
"Youi are therefore advised that the ____
flll,ng fee paid by a foreign corporation'
does not entitle the corporation to file
an amended charterincreasing its capital
stock without payihg fifty dollsrs for
the first ten thousand dollars of suoh
Increase and tba dollars for each addl-
tlonal tba thousand dollars of suoh in-
crease *provided that in no event shall
such fee exaeed the sum of twenty-five
hundred dollars.~a
Attorney General Pollard took the ssme posl-
tlon in his brief filed In the ease of General Notors
;;ietance Corporation vs. YcCallum, in the Suprems
However,'that aase w&s dealded without reachin&
this ;oInt. 10 8.W. (2d) 687. It is our understandIng
656
Honorable J. T. McdcA[lllIn, page 9
that the construction placed on Art. 3821 has varlad
from tlms to time in ths Ranklng~Dapsrtmant:-- Ffa also
understand, however, thst the dspartmsntal praatlcs
in the Ssarstary of Stats*s offios, with refarenas to
Art1 3914, has bean uniform In fmmrdmas with this
and %r. Smith*8 opinion an6 Sor an artandsd period of
years. Es shoal6 not 1Iks to attsmpt to ravarss that
oonstruotlon and praotiae, psctIcularly when rour&wl
apon an opinion from the Attorney Genaral's Dapartasnt,
without being at least fairly well oonvincad that it
Is wrong.
Our opinion No. C-184l is modlfled acoordlng-
19, and you sra sdvlsad that ths fee for tlllq, sn amsna-
nent Inarsaslilg the oapltal stock ehoala bs $50.00,
plan $lO.OO for eaoh $lO,OOO.OO (or fraotloael part
thereof) of tha imrasss after the first ~lO,COO.OO.
Yours very truly
ATTCRNEYCENEFAL
OF TXAf3
Assistant
GRL:IK