Duke Power Co. v. Patten, A--37
| Decision Date | 21 November 1955 |
| Docket Number | No. A--37,A--37 |
| Citation | 20 N.J. 42,118 A.2d 529 |
| Parties | DUKE POWER COMPANY, a corporation of New Jersey, Plaintiff-Appellant, v. Edward J. PATTEN, Secretary of State of New Jersey, and Archibald S. Alexander, Treasurer of the State of New Jersey, Defendants-Respondents. |
| Court | New Jersey Supreme Court |
Thomas McNulty, Jersey City, argued the cause for appellant (Milton, McNulty & Augelli, Jersey City, attorneys).
Harold Kolovsky, Asst. Atty. Gen., argued the cause for respondents (Grover C. Richman, Jr., Atty. Gen., Thomas L. Franklin, Rutherford, of counsel).
The opinion of the court was delivered by
The plaintiff appeals from a dismissal of its complaint by the Law Division of the Superior Court. It is being considered by this court as the result of a certification on our own motion.
The action was brought for declaratory relief under N.J.S. 2A:16--51 et seq., N.J.S.A., seeking to have it determined that a filing fee charged the plaintiff under the statutes relating to the fees to be paid the Secretary of State by corporations on the filing of certificates of incorporation and amendments thereto (R.S. 14:16--1 et seq., N.J.S.A.) was excessive by the sum of $15,000.
The plaintiff was incorporated on May 1, 1917. Its certificate of incorporation authorized the issuance of $7,500,000 worth of capital stock to be divided into 75,000 shares of the par value of $100 each. On the filing of this certificate it paid to the Secretary of State filing fee of $1,500. Subsequent to the original incorporation and up to October 30, 1942 the plaintiff filed several amendments to its certificate of incorporation increasing its capital to $150,000,000. The total fees paid for such privileges was $30,000. Then on October 30, 1942 the plaintiff's charter was amended by action of its stockholders to provide that its authorized capital stock should be 1,500,000 shares of no par stock in place of the previously authorized 1,500,000 shares of the par value of $100 each. The fee for such certificate calculated at the rate provided for in R.S. 14:16--2, N.J.S.A., amounted to $15,000. But no fee was charged by the Secretary of State for the filing of this certificate because the statute provided that in the event of such a change from par value to no par value stock 'the secretary of state shall allow the corporation credit for the fees previously paid pursuant to law upon the authorization of the shares so changed and upon any prior change of such shares, before exacting the fee herein prescribed. * * *' Since the plaintiff had, up to this time, paid fees totalling $30,000, the credit provision in the statute absolved it from any further fee payment for the filing of this certificate.
On October 15, 1952 the plaintiff filed with the Secretary of State a further amendment to its certificate of incorporation which increased its then authorized 1,500,000 no par shares to 5,000,000 no par shares. The statutory fee required by such transaction, calculated at the rate provided for of one cent per share (R.S. 14:16--2, N.J.S.A.) for the shares thereby created, amounted to $35,000. This was the fee assessed by the Secretary of State and paid by the plaintiff. The plaintiff now claims that since the required fee for the filing of the certificate of amendment of October 30, 1942 used up only $15,000 of the $30,000 credit resulting by reason of fees previously paid by it to the Secretary of State, it was entitled to have that excess of $15,000 applied toward the fee required for the filing of the certificate of amendment of October 15, 1952 and, therefore, the fee exacted on such date should have been only $20,000 instead of $35,000.
The plaintiff filed this suit on December 1, 1954, more than two years after the payment of the fee by it, alleging the facts set forth above and that '$15,000 in excess of the fees prescribed by law' have been paid over by the Secretary of State 'to the state treasurer who, in turn, has credited the said $15,000 to the state treasury'; that as a result of these facts '$15,000 of the plaintiff's money was credited to the state treasury which did not represent State revenues'; that every year since 1952 the Legislature has appropriated all monies not constituting state revenues which were credited to the State Treasury to the payment of refunds to the parties entitled thereto and that as a result the defendants are authorized and obligated to refund and pay to the plaintiff such $15,000. The complaint demands judgment to the effect that:
'(a) That this court adjudicate and declare that the predecessor of the defendant secretary of state has exacted of plaintiff $15,000 in excess of the fees prescribed by law;
'(b) That this court adjudicate and declare that the said $15,000 has been credited to the state treasury and does not represent State revenues; and
'(c) That this court adjudicate and declare that the defendants or one of them are authorized and obligated to refund and pay over to plaintiff the said $15,000 unlawfully exacted of plaintiff, out of the treasury of the State of New Jersey.'
On the defendant's motion to dismiss the complaint for lack of jurisdiction over the subject matter of the action, for its failure to state a claim upon which relief could be granted and on the ground that the suit was one against the sovereign state to which it had not consented, the trial court granted the relief sought and entered a judgment of dismissal from which the plaintiff now appeals.
Contrary to the usual practice of this court of disposing of jurisdictional matters before turning to the issues involved in the merits, and particularly because the resolution of the substantive issue is so clearly dictated by the statute here involved, we dispose of the meritorious point at the outset.
The statute in question (R.S. 14:16--2, N.J.S.A.) dealing with the allowance of a credit for fees previously paid provides as follows:
'When any certificate of incorporation or change thereof in any of the matters specified in section 14:16--1 of this title shall involve the issuing of capital stock without nominal or par value, the fee to be paid to the secretary of state for filing such certificate shall be one cent on each share of such stock, instead of at the rates provided in said section 14:16--1, in addition to any fees which may be paid for capital stock authorized having a par value, but in no case shall such fees be less than the minimum amounts prescribed in said section 14:16--1.
'The fee payable for filing an amended certificate of incorporation, Which changes all or a part of the shares of authorized capital stock From par value shares to shares without nominal or par value or from shares without nominal or par value to par value shares, shall be at the rate of one cent per share for the shares without nominal or par value so created, or at the rate of twenty cents for each one thousand dollars par value of the par value shares so created, as the case may be, and the secretary of state shall Allow the corporation credit for the fees previously paid pursuant to law upon the authorization of the shares so changed and upon any prior change of such shares, before exacting the fee herein prescribed, but in no case less than twenty dollars.' (Emphasis supplied.)
The statute speaks of a credit only in terms of a charge to be made On a change from par to no-par or Vice versa. The second paragraph can have no other meaning than limiting its application and the credit to amending certificates which seek to change the class of stock. The plaintiff would have it apply to certificates increasing the number of authorized shares, but there is absolutely no possible basis for such interpretation. The provision equitably recognizes that a corporation might in the course of its existence change its class of authorized stock and in so doing ought not to be required to pay any additional fee other than the minimum of $20 if the fee on the...
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