            THE   ATTORNEY               GENERAL
                       OFTEXAS
                        AUSTIN.    TEXAN
e



                                                This Opinion
                                                                   f
                                             Modifier  OpMon




    Honorable J. T. ?6oMillln
    Deput9 Comuini~loner
    Department of Bankinp,
    Auatln, Texas

    Dear Sir!.          Opinion Ho.. O-1938
                        Rer State ,bankr - Iuaorporation
                              k Fesr tar amendment of ahar-
                              ter   - Delinquent teen -
                              Collection   by fhe preeent
                              Commlrrioner
            We aaknouledge    receipt    of the following    re-
    quest   far ar~oplnion,    to-wit;                -_._
           "This io to aaknorlsdge the mat&p%
        of'your   opinion In *hl-da you oonatrue the
        provielons’of Artlole    3521~0f the Revised
        Statutei,   relative to Seer charged in oon-
        neotlon with the character8    bf benka and
        benke and truet ~oompanies.

            "Under that opinion a ice of $50.00
         is aolleotlble,with    any amendment. In
         addition .to thla See, if;the     Pmendment in-
         cludes an lnareaee'of     capital  etoak in ex-
         aem of $10;000.00     then a fee of $10.00 ..~
         per $lO,OOO.CO for     aoh $lOIOOO.OO In ex-
         oem of the Sirat i 8 aolleotible.
             *Thh Department has been, ,ior a num-
         ber of' years, operating.under   an erroneous
         oonetruation   of AxMale 3921.    It haa In the
         past aolleated   only $50.00 in conueatlon
         with an9 emendmeixt lrrespeative   of whether
         the amendment inareaeed the capital     stock
         or not.~ Obviously It la the duty of the
Honorable   J. T. McYIllIn,   page 2

    present CommIasIoner to colleat  this de-
    ficiency  of ices in 80 far aa It was incurred
    during hle admlniatratlon.
          “It haa occurred to me, however, that
    It might poasiblg be my duty to’hatre the
    booka of thIa Department audited and to aol-
    lect the deficiency   In fee&wbIoh arose
    during past admInIstratIona.    Thin obvlous-
    ly would entail considerable   expenre, and
    before undertaking such an operation I
    would like to reapecttilly   submit the fol-
    lowing questiona:
            “1. Being aware that, during past ad-
    ministrationa,       the several banking commla-
    sloners operating under an erroneous con-
    struotlon     of Article    3921 have failed to
    collect     the.full   fees due the State In con-
    nection with the amendment of bank charters
    and the amendment of charters to bank and
    tN8t     companies.      Ia It my duty, aa the
    present Incumbent, to have the books of
    thIe Department audited for the purpose of
    determining the deficiency        and the corgora-
    tions from whom fees are due., and to proceed
    to collect      those fees?
            @2. In a number of lnetancea the bank%‘-
     in question,   sate+ increasing   their capital,
    have nat$onallced.      Would thin fact in any-'
     wire affect by duty or the liability      of the
   _ reapeative   corporations   to pay the feea In
     queationt
             “i. Subsequent to the Increase In
     oapltal   rome of these corporationa     have
     become lmolvent      and/or either,   are now In
     the process of liquidation,       or have been
     &mpletelp    liquidated.     Ie it my duty to
    ,attempt to collect     the fees In question
     from the Insolvent banks, if the rame la in
     the court of liquidation,      or from the stock:
     holders If the bank Ie completely liquidated?
     Falling to collect,      Is It my duty to pursue .
     the bond of the Commlaeioner under whose ad-
     ministration    the shortage aro8aT”
 Honorable   J. T. YcMIllln,   Page   3


           We have careft+ky oonsldered       your questions
 and beg to answer them as follows:
             1, By the terms Of Article       3921 of the Rep
 vised Civil Statutes,      it is made the duty of the BankIng
 Comnissloner to charge a& receive for.the            use of the
 State aertain aharter and charter amendments fee, as
 therein set out,      It Is the duty of the Bw            Com-
 missioner   to oolleat    all fees properly chargeable under
 this article   of the statutes,      whether such fees aa-
 aNi#ed under his admlnlstratlon        or that of a predecessor.-
 It oan make no difference       whether the delinquency was
 due to oversight,     mIaconstructlon     of the law, or other
 cause whatsoever.      The law fixes the amount of such
 fees and it is not within the scope of the CommIssIoner~s
 power to remit the ssme, or any part thereof.           What he
 cannot do directly      he aannot do Indirectly,      as by more
 failure   for any retison to collect      the proper fees.     It
 will be seen that these fees are collectible           by the
 Bankl~ Cotissloner,        but:: they are for the we of the
 State. So that, no period of limitation          will bar the
 State*8 rl&t     to aolleot    delinquent   fees, or fees not
 paid through oversight       or mistake.    Of course, the
 Banking CommlsslonerIs clothed wLth the power to
 make such collea~lons.
              Your first wetion,       therefore,   is answered
  to the effect  that 10 la the duty of the pzepent? Bsnk-
  lng CosWssloner    to ascerta.ln.froti    the books of your
  department the respective     defiolenales,     and the amounts
  thereof,  dub by State banks, whose aharters have bien
  amended In accordance with the statutes,         whether such
. fees aoormed under 9vur om adminIstration           or snother.
              2. Where a State bsnk shown bg your boo&s to
 be Indebted to the State for charter of charter-smendment
 fees has natlonallsed,     the dissolving corporation  would,
 of course, be liable    for such unpaid fees,   and the National
 bank taking over its affairs     ml&t or might not itself
 be liable;   according to the terms of the aontract of
 take-over.   In other words, a National Bank tskIng over
 the affairs   of a State bank would become lndlvIdually
 liable   only for such debts of the r(rtlx%g Stat6 bank
 as It assumed to pay but none other,
Honorible     J, T, YcXillin~     page 4


              3. Whsre a bank shown by your books to be
delinquent      wltla respeot   to oharter   .or amendment of ahsr-
ter $sdi'lrin pPooes8 of llquldatlon,you, as'llqul-
dator of ::sudh bank, should list and ,approvq as .a claim
on behal(lof the.atats of Texas the amount .of such de-
lIn~ent*$ees,       mase.,to ba pald.out     6f the assets ‘of the
bank.a.8  a general unppdferred cU4.m~ If the llquida-
tlon’ hasp bski ilnall  olosed withoat the fiowanae of
 such a olalm~ it woJ d appear to be lost to the State.
.Artl+le ‘465. of the .Bevised Olvil Statutes of Texas,
 authoriilng    .&d risquIrIng the.deposltin trust by the
B~~ng.;Cqnmifssl&er.of          .a .~sumruffioIent   to pay.the
un+al@ed: dlvldends ang ~deposltors of. i f&tiled bank
 $8 ‘not .broad enough to corer, au& au item.           Such un-
gald ‘fess’ be to the ,State. do not constitute          a’dlv%dend
 or deposit,     wlthln the meaning .of *hat statute.        Further-
mare; :lf the liquidation         has been blosed,    aad the B-0
 ing Com&ssloner has -been dlsahsrged,            then he no longer
has any offlalal       dut oi. authotilty rith respeat4o        .@ach
 llquldated    bsnk ,or i t ‘a affairs.    .As Banking Contmlssloner,
he is; a:,+tmnger to the whole +atteri
                                    ..
                 It ,$a no; the duty 'of'    yourself~ as Banking
Cgsm.%ssloner, in. any”eveat $0 undertake. the aolleatlon
 of ‘iuohmdeUnquent fees .upoa tie .:bond of: a redeaessor.
 of 9ows~'~der~~whoseadml.plrt~atloa            thi deP lnqwen6y
aa9 h+ve rClasti Tbo .Bank2~ Cosns%rsloner~s orfiaial-
bond runs; to thi Stat? ,to ,be approved. by the Governor,
 (Rev.‘:. dir; Stat l Art l 3&j ,., ,and suaoes’sor CommIssloners. end
 therefor?&, are not .authorined to lnstltute          suit upon
 suah ,a bond, for an$ breaap of.duty lfutsorver            of a
 for&r     .OaamUrlonerc
              llp&another,   reading of our opinionNo.
o-1841, we deslre.t6   dlsauss further the questlan there
under aons$deratio&
            From ths opinion of Chlef’Justlae ealnes in
St,Louis ~8.W.R9. 00. YE* Tad, 64 8.W. 778, we quote
oxcerptaas foll6ws’
            tat page 776779      1
                 s. , 6 . The determlnatlon    of the
            aase depends upon the aonstructloa    of so
Honorable    J, T. YcMIllIn,      pagi 5

        much of article       24.39 of the Revised Statutes
        as presarlbes      the fees to be charged by
        the secretary      of state for fllIng        oharters
        or railroad    corporations         and smendments
        thereto.     That~ part of the article         reads
        as follows:     *Art. ,2439. The secretary          of
        state, besides athsr fees that may be pre-
        sarlbed by law, ti authorlsed             and regired
        to charge for.the       use of the state the fol-
        lowing fees8 For’ each and every charter’
        amendment or supplement thereto of a prl-
        vate aorporatlan       created for the punpose
        of operating     or construoting        a railroadi
        magnetla telegr-          line,     or street railway,
        or express company, authorized or required
        by law to be recorded in said department, a
        fee of one hundred dollars,            to be paid when
        ssId.charter     is filed;       provided,   that if
        the authorlsed       capital     stock of said cor-
        poration    shall exceed one hundred thousand
        dollars,    it shall be required to pay an ad-
        ditional    fee of twenty-five         dollars for
        each one hundred thousand dollars             authar-
        lsed capital     stock or fraatlonal         part there-
        of, after the first.@.          ‘. . .s



              “. . ~. On tie other hand, It is but
    _   just and equitable,   whenever a corporation
        organized for profit   tenders an amendment
        which increases .its aapltsl     stock, that It
        should pay the additional     tax for such in-
        arease,  just as if it had filed an original
        charter with the same smount of oapltsl
        stock as the increase.     . ‘.*
             a:. ‘. The reasoziab%e and equitable
        Nle upon the filing   of an amendment is
        to charge for the amendment .the fixed fee
        as for an original. charteri snd, in case
        the amendment adds to the aapltal stock
Honorable   J, T, Mck!lllln,   page   6


      of the oorporatlon,    to charge the same ad-
      ditional   fee for such Increment as would be
      aharged for an original    aharper with a
      aapltal stock of that smount, TMs is our
      oonstruatloa    of what the legislature In-
      tended by the statute In questloa;and     it
      is lnaonslstent    with its terms, , ,*

       (atwee,7~9~7@)
               s, , . , We oonalude that the only
      reasonable construction    of the statute
      in question 18 that when an~amendment to
      a ahsrter is filed,    if there be sn increase
      of the capital   stock by au amount ‘over
      $100,000, t&en the additional     fee Is charge-
      able upon the excess of such increase over
      the amount named, but that, if the amendment
      does not authorize    au Increase of stock,   then
      the fixed fee 6f $100 only should be charged
      far its filing."
                A# the time the above oase was.declded,    the
  statute therein Involved applied also to state banks
  and the filing     fees for such bdnk&@ corporations
  were paid to the Secretary of State.' However, In
  1917the Legislature provided that amendments to bank
  aharters should be filed      with the BankIng Commlss~loner
  snd that he should charge the same fees as were then
  charged by the Secretary      of State. Ch. 205, p, 469,
_ General Laws, 35thLeg. Thereupon, in'~the 1925 codi-
  fication,   Article    3921 appeared, reading In part as
 _iplbBBr

               "The BankIng Commlssloner shall charge;
        and receive  for the use of the State the
        following Sees:
             'I. . . .
             "For each charter, amendment or supple-
       ment thereto,  of a bank or bank and trust
       company, a fee of fifty   dollars'shall    be
       paid when ka3.d charter is filed,     and If the
Honorable    J. T. YcMlllln,      page   7


        authoriced aaplt'al stock of such aorpora-
        tlon exoeeds ten thousand dollars,      it
        shall be required to pay an additional
        fee of ten dollars for iaoh additional
        ten thoussnd dollars    of its authorlsed
        acpltsl   stook or fraatlohaLai   part thereof
        after the fir&, provide4 suah fee shall
        not exceed twenty-five     hundred dollsrs.'
                 It 1s readily      seen that the present Article
3921 is praatlaally         ldentloal    dth     the statute under
oonslderatlon        in the Tod aase, suptia. We advert to'
a dlsausslon      of Judge Gaines' language lnthat             case.
Be says that "it is but just.ard              equitable,   whenever
a aomoratlon.          . . tenders an am&sent          which in -
crea&      its &pita        stock, that it should pay @ ad-
dltlonal     tax for such increase.          just as if it had
filed    an-orlnlnal      charter rith the same smount of
capital    as the increase."           Camp re an orl@ml
charter Soti a corporation          having a aapltal stoak
of $~O,OOO.OO dth an amendment increasingthe
capltai    st&k'of       another oorporatlon       by ttie sum
of $~O,OOOcOO.~ Judge Gaines plainly               says that the
fee for filing        the amendment of the one corpora-
tion should be the same asth6              fee for flllng     the
original charter of the other.               For  SIlIng  the  original
chsrter the fee would be $90.00. The fee for filing'
the amendment would'be the iame amount if we ape to
regard~his      language.      Further on he says that #The
reabonable and equitable           mile upon the SllIng of an
amendment is $0 charge for the amendment.the fired
fee as for an.orlnlnal          chartert      end, In case the
smendment adds to the oapital             stock of the aorpora-
tlon, to charge the ssme~addltlonalfee far au-&
increment as would be aharged for an orlRIna1 charter
tth a aavltal stock of that amount.".                  The,words
"that axnotit" have referenoe           to the amount of the.
lmiwment. For~the~flllng~           of a charter the fee if
  10.00 ~er~,#10,000.00 is not laid uppn ths first
  10*000;00.       ffths    fee for sin smendment Inoludes
t 10.00 for the first         $lO,OOO.OO of the increase,
then the aam& fee is not'belng              charged for the fib
lngof     the smeadmeat as muld be aharged fati,the fll-
lng of an orlgInal.chart&r            with a capital
Honorable   J, T, ~abtillin,page 8


the 811018smount as the increment, A lsrger fee       is
being charged,
          The statute says that "For each darter,
amendment or supplement thereto,       of a bank or bsnk
and trust oompany, a fee of fifty       dollars shall be
pal& when said Charter      1s filed,   'etc.     Quite evl-
dently, for the-to           be entitled      to the flfty-
dollar fee for the SllIng of the smendwnt, the word
"aharter"    as underlined lnthe.quotatlan        must be
given the meaning "charter,       smendment or supplement."
We think this neaessarlly      calls for the term "authorlxed
capital   stock" as theregfter     used in the statute      to
mean nauthorlxed lnorease of a&tal stock"           In oase
of smendments. And such we.thlnk was the holding of
Judge Galnes.
           Practically   an identical   statute govermthe
 fees collected     by the Secretsry.of   State from private
 corporations    created for profit. Art. 394, Civil
 Statutes.    Our construction     of Art. 3921 is in aaaord
'with the opinion of Assltant Attorney General E.F.
 Smith to 9. L. Staples,     Searetsry 6f State, dated
 August 23, 1921, pertaining       to Art. 39l& From tha+
 oplnlbn we quote:
        "Youi are therefore advised that the ____
    flll,ng fee paid by a foreign corporation'
    does not entitle  the corporation    to file
    an amended charterincreasing     its capital
    stock without payihg fifty dollsrs for
    the first ten thousand dollars of suoh
    Increase and tba dollars   for each addl-
    tlonal tba thousand dollars    of suoh in-
    crease *provided that in no event shall
    such fee exaeed the sum of twenty-five
    hundred dollars.~a
          Attorney General Pollard took the ssme posl-
tlon in his brief filed In the ease of General Notors
;;ietance     Corporation vs. YcCallum, in the Suprems
          However,'that   aase w&s dealded without reachin&
this ;oInt.    10 8.W. (2d) 687. It is our understandIng
                                                               656



Honorable J. T. McdcA[lllIn, page 9


that the construction    placed on Art. 3821 has varlad
from tlms to   time in ths Ranklng~Dapsrtmant:-- Ffa also
understand, however, thst the dspartmsntal praatlcs
in the Ssarstary of Stats*s offios,        with refarenas to
Art1   3914, has bean uniform In fmmrdmas with this
and %r. Smith*8 opinion an6 Sor an artandsd period of
years.    Es shoal6 not 1Iks to attsmpt to ravarss that
oonstruotlon   and praotiae,   psctIcularly    when rour&wl
apon an opinion from the Attorney Genaral's Dapartasnt,
without being at least fairly well oonvincad that it
Is wrong.
           Our opinion No. C-184l is modlfled acoordlng-
19, and you sra sdvlsad that ths fee for tlllq,   sn amsna-
nent Inarsaslilg the oapltal stock ehoala bs $50.00,
plan $lO.OO for eaoh $lO,OOO.OO (or fraotloael   part
thereof)  of tha imrasss   after the first ~lO,COO.OO.
                                Yours very   truly

                           ATTCRNEYCENEFAL
                                         OF TXAf3




                                               Assistant
GRL:IK
