General Motors Acceptance Corporation v. McCallum

• Decision Date: 21 November 1928
• Docket Number: (No. 862-4601.)
• Citation: General Motors Acceptance Corporation v. McCallum, 10 S.W.2d 687 (Tex. 1928)
• Parties: GENERAL MOTORS ACCEPTANCE CORPORATION v. McCALLUM, Secretary of State.
• Court: Texas Supreme Court

10 S.W.2d 687

GENERAL MOTORS ACCEPTANCE CORPORATION v. McCALLUM, Secretary of State.

(No. 862-4601.)

Commission of Appeals of Texas, Section B.

November 21, 1928.

Original mandamus by the General Motors Acceptance Corporation against Mrs. Jane Y. McCallum, Secretary of State. Mandamus awarded.

Phillips, Townsend & Phillips, of Dallas, and Charles L. Black, of Austin, for relator.

Dan Moody, former Atty. Gen., George E. Christian, former Asst. Atty. Gen., and Paul D. Page, Jr., Asst. Atty. Gen., for respondent.

SPEER, J.

Relator is a corporation chartered under the laws of the state of New York, In January, 1920, it applied for and received a permit to do business in Texas in accordance with the statute, which now is represented by chapter 19, tit. 32, Revised Civil Statutes 1925. At that time its capital stock authorized, subscribed, and paid up aggregated the sum of $2,000,000. In June, 1921, in accordance with the requirements of article 1537 (1925), it filed with the secretary of state an authenticated copy of an amendment whereby its authorized capital stock, subscribed and paid up, was increased to $4,000,000, and in connection therewith paid to the secretary of state the sum of $2,040 as filing fees. In November, 1922, it tendered to the secretary of state an authenticated copy of an amendment, whereby its authorized capital stock was further increased to $4,800,000, and in connection therewith tendered payment of the sum of $460 as filing fees; this last sum was received by the secretary of state, but upon the insistence that it was not a sufficient amount. In May, 1923, copy of another amendment whereby the capital stock was further increased to $6,000,000 was tendered for filing, but no filing or permit fee was tendered; filing was refused. In February, 1924, copy of the fourth amendment, whereby the capital stock was further increased to $7,600,000, was tendered for filing, but no payment of further fee was made or offered, and the secretary of state refused to file this copy. In April, 1924, copy of a fifth amendment increasing the capital stock to $9,000,000 was tendered, but no payment of any further fee was made or offered, and the filing of this was refused. On January 20, 1926, the corporation tendered copies of all the amendments and demanded that they be filed by the secretary of state. No further payment of fees was made or offered, the corporation insisting that, since it had already paid as much as $2,500 in connection with the filing of copy of its original charter and amendments, it had paid the maximum named in the statute; the secretary of state refused to file the copies thus tendered. Thereafter relator sought permission, and on April 19, 1926, secured leave, to file this proceeding in mandamus against the secretary of state, and herein seeks an order compelling her to file copies of the amendments without further payment of fees or charges.

The statutes as shown in the revision of 1925 are substantially the same as those in force at the several times mentioned, and will, in any event, control the question here presented for determination.

Article 1529 provides:

"Any corporation for pecuniary profit, except as hereinafter provided, organized or created under the laws of any other State, or of any territory of the United States, or of any municipality of such State or territory, or of any foreign government, sovereignty or municipality, 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."

Articles 1530 and 1531 provide for certain information to be furnished to the secretary of state as a guide to that official in the matter of issuing such permit. Succeeding articles define the rights of such corporations under the permit.

Article 1537 declares:

"Each foreign corporation, after a permit has been granted it to do business in this State, shall immediately file with the Secretary of State a certified copy of any amendment or supplement to its original articles of incorporation when any such amendment or supplement to its original articles of incorporation is filed in the state, territory or foreign country under whose laws such corporation is incorporated."

These articles are embraced, as heretofore stated, in chapter 19 of article 32 of our latest revision. This chapter relates to foreign corporations.

In chapter 2, tit. 61, concerning "Fees of Office," there is article 3914, in part as follows:

"The Secretary of State is authorized and required to charge for the use of the State the following other fees: * * * Each foreign corporation that files with the Secretary of State a certified copy of its articles of incorporation and any amendments thereto and obtains a permit to do business in this State, or which shall hereafter obtain a permit to do business in this State, that shall subsequently file with the Secretary of State a certified copy of any amendment or supplement to its articles of...