Western Public Service Co. v. Mrs. Emma G. Meharg, Secretary of State, 116 Tex. 193

Mr. Judge NICKELS delivered the opinion of the Commission of Appeals,

Section A. Relator is a corporation organized under the authority of the laws of the State of Colorado prior to March 3, 1917. Its original corporate name was “Inter-Mountain Railway, Light' & Power Company,” which was changed by charter amendment to “Western Public Service Company,” November 29, 1922. March 3, 1917, the corporation filed with the Secretary of State of Texas an application for a permit authorizing it to do business in the State, and on the same day the permit issued as prayed.

The business for which authority was sought and granted is described as follows: “* * * The business of supplying water to the public for power, municipal or domestic purposes; the manufacture and supply of ice to the public and the generation and supply of gas, electric and motor power to the public,” and these “businesses,” it was said, were within the corporate purposes allowed by the State of Colorado. For the years of 1919 to 1925, inclusive, the corporation paid to the Secretary of State franchise taxes as measured and provided for in Art. 7085, R.

S. 1925, if the corporate business is to be treated as a unit within the meaning of that and other relevant articles of the statutes. If, however, each of its three “businesses” is a subject of the tax, it owes the State of Texas the aggregate sum of §3,498, exclusive of interest and penalties, by way of franchise taxes for those years. For the year of 1926 it paid a franchise tax in respect to each of those businesses, but this payment, it is said, was made through inadvertence and mistake and not because it was required.

February 24, 1926, it tendered to the Secretary of State in payment of the tax for the year ending April 30, 1927, the sum of §1,163.75, which was the correct amount due for that period if all the corporate “businesses” are to be treated as one; this tender was refused. In June, 1925, the corporation presented to the Secretary of State an application for a permit to do business in Texas and with the application tendered as “filing fee” (see Art. 3914, R. S. 1925) the sum of §2,500. This application was accompanied by an offer to surrender the old permit upon granting of the new.

This application and tender was refused. The reason for the refusal of the tender of franchise tax payment made February 24, 1926, is that the law, as understood by the Secretary of State, prescribes a tax measured as in Art. 7085 in respect to each business, or corporate purpose, authorized by a permit, if a permit relating to more than one such business or purpose is lawful.

The reason for the refusal to issue the permit newly applied for is dual in nature: First, the combination of franchises involved in a permit authorizing transaction of the “three businesses” described is not accorded to foreign corporations, but is limited in enjoyment to domestic corporations, as the Secretary of State understands the law to be. Second, if such a permit is lawful, then relator is bound to pay a franchise tax for each business, and its delinquency for the years 1919 to 1925 as to two of its objects justifies, if it does not require, her refusal to issue the second permit.

June 7, 1926, the Secretary of State furnished to relator a statement of taxes claimed to be delinquent for the period mentioned and in connection therewith notified it that “the right of this corporation to do business in Texas will be forfeited if the franchise tax and penalties are not paid.” With leave and on June 23, 1926, the corporation filed petition in mandamus against Mrs.

Meharg, Secretary of State, in which the facts stated are disclosed, with some additional elaborative ones, and in which it is prayed that writ issue commanding the Secretary of State to issue the permit requested, and to accept “as payment in full the sum of §1,163.75 for all franchise taxes due by relator for the year ending April 30, 1927.” In Art. 1529, R.

S. 1925, it is provided that “Any corporation for pecuniary profit” (with exceptions immaterial here) “organized or created under the laws of any other State,” etc., etc., “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.” Subsequent Articles of Chap. 19, Title 32, require other things to be done by the corporation before a permit may issue, and Art. 3914, R. S. 1925, requires certain “filing fees” to be paid, but no question is presented under those provisions.

In view of the comprehensive nature of the first declarations expressed in Art. 1529, it appears to us that the concluding sentence is permissive in favor of the corporation so long as the purposes named in its charter do not include some for which franchises are not grantable to domestic corporations and does not include a combination of purposes not permitted to domestic corporations. So long as the charter purposes are within this legitimate range, the foreign corporation is entitled to get that for which it asks.

If in such a case the corporation desires to restrict its business in Texas to less than all of its charter purposes, it must declare the limitation, else the Secretary of State “shall issue” a permit in harmony with the objects named in the charter and evidenced by the certified copy thereof. Such, we think, is the meaning of Art. 1529, as, also, of Art. 1532, wherein it is said that “such corporations * * * shall have and enjoy all the rights and privileges conferred by the laws of this State” on domestic corporations. And since Art. 1302, R.

S. 1925, Subd. 88, contains authority for a domestic corporation to have “two or more” of such purposes as are named in relator’s application, it results that the Secretary of State misinterpreted the law in respect to issuance of permits for more than one purpose. The corporation, however, must pay for what it requests and secures. Its parity with domestic corporations in respect to “rights and privileges” implies a like parity of burdens. The grant of authority for a combination of franchises is thus conditioned : “Provided, that corporations including more than one of the purposes named in this

Article shall pay the franchise tax provided by law for each of the purposes so included in their charter or amendments thereto.” That statute exclusively declares authority for the benefits sought and obtained by relator and it must take the burdens also, else Art. 1532 would mean that foreign corporations shall have more than “all the rights and privileges conferred by the laws of this State on corporations organized under the laws of this State.” The Secretary of State, therefore, is correct in her

interpretation of the law pertaining to what franchise taxes relator owes. Hence, the writ cannot issue requiring her to accept $1,163.75 “as payment in full * * * for all franchise taxes due by relator for the year ending April 30, 1927,” as prayed. But the fact that she correctly interprets the law in the respect just noted, and the fact that the corporation is delinquent for the years named, do not afford justification for refusal to issue the new permit.

This is so because of the absolute nature of the duties and rights described in Arts. 1529 and 1532, read with Art. 1302, and because in Arts. 7091-7092 and 7095-7096, R. S. 1925, another and different and inconsistent remedy is provided with reference to collection, etc., of delinquent franchise taxes. The duty of relator to pay and the duty of the Secretary of State and the Attorney General to enforce payment of the franchise taxes in accordance with the ideas herein conveyed is plain, but the performance of that duty has no relation to the matter of issuing a permit.

However, the writ prayed in respect to filing the application for a new permit and the issuance thereof cannot issue at this time because the application therefor is premature this is so because the existent permit operates for a period of ten years beginning on March 3, 1917, and because there is no statutory provision requiring the Secretary of State to issue an overlapping permit or to accept surrender of an unexpired one upon' condition of issuance of a new one. Accordingly, we recommend that all relief prayed by relator be denied. The opinion of the Commission of Appeals is adopted and mandamus refused. C.

M. Cureton, Chief Justice.