Chicago Corp. v. Shepperd, 10040

• Decision Date: 23 April 1952
• Docket Number: No. 10040,10040
• Citation: Chicago Corp. v. Shepperd, 248 S.W.2d 261 (Tex. Ct. App. 1952)
• Parties: CHICAGO CORP. v. SHEPPERD et al.
• Court: Texas Civil Court of Appeals

Page 261

248 S.W.2d 261

CHICAGO CORP. v. SHEPPERD et al.

No. 10040.

Court of Civil Appeals of Texas, Austin.

April 23, 1952.

Rehearing Denied May 7, 1952.

Small, Small & Craig, by C. C. Small, Jr., Austin, for appellant.

Price Daniel, Atty. Gen., William H. Holloway, Asst. Atty. Gen., for appellee.

GRAY, Justice.

Appellant sued the Secretary of State and other State officials, in their official capacities, to recover $2500 paid under protest, Art. 7057b, Vernon's Ann.Civ.Stat., and claimed by the Secretary of State to be due as a fee for a renewal of appellant's permit to do business in Texas.

A nonjury trial had upon stipulated facts resulted in a judgment that appellant take nothing by its suit.

Appellant is a Delaware corporation and on June 2, 1941, it was issued a permit to do business in Texas. Subsequent to that time it has filed charter amendments and other instruments required to be filed with the Secretary of State and has paid filing fees totaling $2500. On May 24, 1951, appellant tendered to the Secretary of State its application for a renewal of its permit to do business in Texas. The Secretary of State refused to file the application until appellant paid a filing fee of $2500. Appellant paid this fee and accompanied its payment with a written protest, the pertinent portions of which are:

'The grounds of this protest are as follows: The Chicago Corporation has heretofore paid to your office aggregate filing fees of $2500.00 in connection with its permit to do business in the State of Texas. Article 3914, R.C.S., provides that 'the maximum filing fees to be paid by any domestic or foreign corporation shall be $2500.00.' Having previously paid the maximum filing fees required by law, The Chicago Corporation is entitled to have the above described documents filed in your office without the payment of additional filing fees.'

Appellant here presents one point as follows:

'The trial court erred in holding that a foreign corporation which had previously paid $2500.00 in filing fees to the Secretary of State under Article 3914, Revised Civil Statutes of Texas, was required to pay additional filing fees under said article, when said article provides in plain and unambiguous language that 'the msximum filing fees to be paid by any domestic or foreign corporation shall be twenty-five hundred ($2500.00) dollars.''

Article 1529, Vernon's Ann.Civ.Stat., provides:

'Any corporation for pecuniary profit, * * * desiring to transact or solicit business in Texas, or to establish a general or special office in this State, shall file with the Secretary of State a duly certified copy of its articles of incorporation; and thereupon such official shall issue to such corporation a permit to transact business in this State for a period of ten years from the date of so filing such articles of incorporation. If such corporation is created for more than one purpose, the permit may be limited to one or more purposes.'

It is by the authority of this article that the Secretary of State is authorized to issue a permit to a foreign corporation to do business in this State for a period of ten years.

Article 1537, Vernon's Ann.Civ.Stat., requires each foreign corporation which has been granted a permit to do business in this State to file with the Secretary of State a certified copy of any amendment or supplement to its original articles of incorporation.

The fees to be charged by the Secretary of State, insofar as applicable here, are fixed by Article 3914, Vernon's Ann.Civ.Stat., the pertinent provisions of which are:

'The Secretary of State is authorized and required to charge for the use of the State the following other fees:

* * *

* * *

'Upon obtaining a permit under Article 1529 and upon filing a certified copy of any amendment or supplement under Article 1537, each foreign corporation shall pay the following fees for the privilege of being admitted to do an intrastate business in this State; Fifty ($50.00) Dollars for the first Ten Thousand ($10,000.00) Dollars of its issued capital stock employed in Texas, as hereinafter determined, and Ten ($10.00) Dollars for each additional Ten Thousand ($10,000.00) Dollars or fractional part thereof. * * *

'The maximum filing fees to be paid by any domestic or foreign corporation shall be Twenty-five Hundred ($2500.00) Dollars.'

In General Motors Acceptance Corp. v. McCallum, 118 Tex. 46, 10 S.W.2d 687, 689, the Court considered the liability of a foreign corporation for the payment of fees for filing amendments or supplements to its original articles of incorporation. The corporation had paid filing fees to the Secretary of State amounting to $2500, and had tendered for filing subsequent ...