State, Ex Rel., v. Brown

• Decision Date: 13 November 1929
• Docket Number: 21807
• Citation: 168 N.E. 842,121 Ohio St. 329
• Parties: The State, Ex Rel. Defiance Spark Plug Corp., v. Brown, Secy Of State.
• Court: Ohio Supreme Court

168 N.E. 842

121 Ohio St. 329

The State, Ex Rel. Defiance Spark Plug Corp., v. Brown, Secy Of State.

No. 21807

Supreme Court of Ohio

November 13, 1929

Corporations - Fees of secretary of state - Section 176, General Code - Amendment of articles increasing shares of stock - Shares authorized in first instance not considered in computing fee.

IN MANDAMUS.

Messrs Doyle & Lewis, and Mr. C.T. Lewis, Jr., for relator.

Mr Gilbert Bettman, attorney general, Mr. L.F. Laylin and Mr William S. Evatt, for respondent.

BY THE COURT.

This is an action in mandamus and originated in this court. Issue made by demurrer to the petition presents a controversy as to the construction of Section 176, General Code.

The relator, an Ohio corporation, has heretofore been authorized to issue 70,000 shares of stock of no par value. Subsequently it submitted an amendment of its articles of incorporation increasing the total number of authorized shares from 70,000 to 100,000, and tendered $900, which it asserts is the fee fixed by the statute. The secretary of state refused to accept said amendment, on the ground that the fee required under the provisions of the statute is $2,000.

The portion of the statute involved is as follows:

"Sec 176. * * * The secretary of state shall charge and collect the following fees for official services:

"1. For filing and recording articles of incorpo- ration of a corporation having authorized shares of stock, with or without par value, a fee equal to the sum of

"(a) Ten cents for each share authorized up to and including ten thousand shares;

"(b) Five cents for each share authorized in excess of ten thousand shares up to and including fifty thousand shares;

"(c) Three cents for each share authorized in excess of fifty thousand shares up to and including one hundred thousand shares;

"(d) Two cents for each share authorized in excess of one hundred thousand shares up to and including one hundred and fifty thousand shares;

"(e) One cent for each share in excess of one hundred and fifty thousand shares.

"In no event, however, shall the fee be less than twenty-five dollars.

"2. For filing and recording a certificate of amendment increasing the number of shares which a corporation shall be authorized to issue,

"A fee equal to the sum of

"(a) Ten cents for each share authorized up to and including ten thousand shares;

"(b) Five cents for each share authorized in excess of ten thousand shares up to and including fifty thousand shares;

"(c) Three cents for each share authorized in excess of fifty thousand shares up to and including one hundred thousand shares;

"(d) Two cents for each share authorized in excess of one hundred thousand shares up to and including one hundred and fifty thousand shares;

"(e) One cent for each share in excess of one hundred and fifty thousand shares.

"In no event, however, shall the fee be less than twenty-five dollars."

The relator contends that the language of subdivision 2," the number of shares which a corporation shall be authorized to issue," has reference to the total number of shares...