140 P. 82 | Mont. | 1914
delivered the opinion of the court.
The General Electric Company is a New York corporation with a capital stock of the par value of $101,378,600, and owns property of the value of more than $100,000,000, all located in states other than Montana. Desiring to conduct business in this state, the company tendered to the secretary of state, for filing, a duly authenticated copy of its charter, a properly verified statement, a duly executed certificate appointing an agent, and the agent’s acceptance of the office, together with a fee of $13. The secretary of state refused to file any of the papers unless a fee of $10,322.86 was paid; hence this proceeding.
Sections 4413 and 4414, Revised Codes, provide that a foreign corporation of the character of this one, before doing business in this state, must file with the secretary of state: (a) A duly authenticated copy of its charter; (b) a verified statement showing the amount of its capital stock, its assets, liabilities, etc.; (c) a certificate appointing a local agent upon whom service of process can be made; and (d) the written consent of the agent to act. Section 165, Revised Codes, fixes the fees which the secretary of state shall collect as follows: “IV. For recording and filing each certificate of incorporation and each certificate of increase of capital stock, the following amounts shall be charged: Amounts up to $100,000.00, fifty cents per thousand dollars. Additional from $100,000.00 to $250,000.00, forty
It is conceded that the papers tendered for filing were properly prepared and tendered, and that the amount of the fee demanded is correct, according to the schedule above. We are also advised by counsel that the business to be conducted by relator, if admitted into this state, will be strictly private, local, or intrastate business, and we are thereby relieved from any consideration of questions affecting interstate commerce or agencies
That the fee demanded by section 165 is not a property tax at all is plainly apparent. Article XII of our state Constitution provides for public revenue to be raised by taxation. Section 1
“Sec. 11. Taxes shall be levied and collected by general laws and for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.”
“Sec. 7. The power to tax corporations or corporate property shall never be relinquished or suspended, and all corporations in this state, or doing business therein, shall be subject to taxation for state, county, school, municipal and other purposes, on real and personal property owned or used by them and not by this Constitution exempted from taxation.”
The rate of taxation for state purposes is fixed by section 9, as amended, and can never exceed two and one-half mills on each dollar of valuation. The property exempt from taxation is enumerated in section 2499, Revised Codes. Section 2502 provides: “All taxable property must be assessed at its full cash value. * * # ”
The fee demanded by section 165 is graduated according to the par value of the company’s capital stock, without reference to the full cash value of the property owned by the corporation. For instance: A corporation with a capital stock of $100,000 is required to pay only $50, though its property represented by that capital stock may be worth a million dollars. Furthermore, this fee is not a recurring one; it is demanded but once. That the legislature did not treat it as a property tax is indicated by the failure to provide any means for its collection. A foreign corporation may be denied admission here, but it cannot be made to pay the fee in the same sense that any other tax-paying individual or corporation may be coerced into paying property taxes. This fee does not become a lien upon any property which the corporation may have in this state, as does a property tax under section 2600, Revised Codes. The amount of this fee is fixed by law and does not vary from time to time, while the. rate of taxation for property taxes is fixed by the legislature
We are unable to appreciate the distinction attempted to be made by the supreme court of the United States between the Kansas statute, considered in Western Union Tel. Co. v. Kansas, above, and held to impose a general tax upon all of the property of the company, and the statute of Massachusetts, considered in Baltic Min. Co. v. Massachusetts, 231 U. S. 68, 58 L. Ed. 000, 34 Sup. Ct. Rep. 15, and held to be a mere excise; but, if we have accurately characterized our section 165 above, the latest pronouncement by that court justifies the existence of our statute and the method employed for determining the amount of the tax. It may be that our legislation is unwise in failing to fix a reasonable limit upon the amount to be exacted from any one corporation; but, if the authority is lodged in the state to exclude the relator altogether or to impose such terms to its admission here as may seem expedient, then the amount of the fee affords no tenable ground of opposition to the validity of the statute. If the amount demanded is more than the local, private business of relator will justify it paying, the tax can be avoided altogether by a renunciation of its intention to do such
If any one question can ever be deemed settled, this one ought
In Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357, the court, in considering the status of a foreign corporation, said: “The recognition of its existence even by other states, and the enforcements of its contracts, made therein, depend purely upon the comity of those states — a comity which is never extended where the existence of the corporation or the exercise of its powers are prejudicial to their interests or repugnant to their policy. Having no absolute right of recognition in other states, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely; they may restrict its business to particular localities; or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion.”
In Hooper v. California, 155 U. S. 648, 39 L. Ed. 297, 15 Sup. Ct. Rep. 207, there was involved the right of the state to exact a license fee and certain security from a foreign corporation seeking to engage in business in California, and of that right the court said: “The state of California has the power to ex-
No right guaranteed by the Constitution of the United States has been found more conveniently useful to corporations than the provision conferring upon federal courts jurisdiction of controversies arising between citizens of different states, and yet a state statute has been upheld which provides for revoking the license of a foreign corporation engaged in local, private business, if it removes a cause to the federal courts. (Doyle v. Continental Ins. Co., 94 U. S. 535, 24 L. Ed. 148; Security Mut. Life Ins. Co. v. Prewitt, 202 U. S. 246, 50 L. Ed. 1013, 26 Sup. Ct. Rep. 619, 6 Ann. Cas. 317.)
The foregoing would seem to justify the conclusion that, in
However, in Baltic Min. Co. v. Commonwealth, above, the authority of the state over the foreign corporation appears to be made to depend somewhat upon the validity of the reason which
But it is urged that, since section 165 above has been declared to be invalid, the secretary of state did not have any authority for demanding the fee which he attempted to collect in this instance. Assuming the premise, the conclusion is inevitable; but we are not prepared to agree with counsel that section 165 was held to be invalid in the Swindlehurst Case, above, though it must be conceded at once that there is to be found, in the language employed in the opinion, some justification for the argument now advanced. That was an action to recover a filing fee paid under protest, and the one question presented for determination was: Can the secretary of state demand .the fee mentioned in section 165, subdivisions IY and X, from a foreign corporation seeking to engage in interstate commerce in this state? We held that he cannot, because to permit him to do so would impose a burden upon interstate commerce, and we epitomized our conclusion in the one sentence: “This court * * * must declare section 165, supra, in so far as it applies to foreign
It is an elementary rule of constitutional law and of statutory construction that the court shall adopt that construction of a
It is true the terms used in section 165 are general — “any foreign corporation”; but these general words are to be construed
To have been technically exact, we should have said in the Swindlehurst Case that section 165 does not have any application to foreign corporations seeking to engage in interstate commerce in this state. This is our holding, and, thus stated, the statute is left intact to apply to foreign corporations over which this state has the right to exercise some degree of regulation or control.
Our conclusion is that the secretary of state was fully justified in demanding the fee under subdivisions IY and X of section 165, and for this reason the motion to quash the alternative writ of mandate heretofore issued is sustained, and this proceeding is dismissed.
Dismissed.