On certification to the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.
The plaintiff appeals from a dismissal of its complaint by the Law Division of the Superior Court. It is being considered by this court as the result of a certification on our own motion.
The action was brought for declaratory relief under N.J.S. 2 A:16-51 et seq. seeking to have it determined that a filing fee charged the plaintiff under the statutes relating to the fees to be paid the Secretary of State by corporations on the filing of certificates of incorporation and amendments thereto (R.S. 14:16-1 et seq.) was excessive by the sum of $15,000.
The plaintiff was incorporated on May 1, 1917. Its certificate of incorporation authorized the issuance of $7,500,000
worth of capital stock to be divided into 75,000 shares of the par value of $100 each. On the filing of this certificate it paid to the Secretary of State a filing fee of $1,500. Subsequent to the original incorporation and up to October 30, 1942 the plaintiff filed several amendments to its certificate of incorporation increasing its capital to $150,000,000. The total fees paid for such privileges was $30,000. Then on October 30, 1942 the plaintiff's charter was amended by action of its stockholders to provide that its authorized capital stock should be 1,500,000 shares of no par stock in place of the previously authorized 1,500,000 shares of the par value of $100 each. The fee for such certificate calculated at the rate provided for in R.S. 14:16-2 amounted to $15,000. But no fee was charged by the Secretary of State for the filing of this certificate because the statute provided that in the event of such a change from par value to no par value stock "the secretary of state shall allow the corporation credit for the fees previously paid pursuant to law upon the authorization of the shares so changed and upon any prior change of such shares, before exacting the fee herein prescribed. * * *" Since the plaintiff had, up to this time, paid fees totalling $30,000, the credit provision in the statute absolved it from any further fee payment for the filing of this certificate.
On October 15, 1952 the plaintiff filed with the Secretary of State a further amendment to its certificate of incorporation which increased its then authorized 1,500,000 no par shares to 5,000,000 no par shares. The statutory fee required by such transaction, calculated at the rate provided for of one cent per share (R.S. 14:16-2) for the shares thereby created, amounted to $35,000. This was the fee assessed by the Secretary of State and paid by the plaintiff. The plaintiff now claims that since the required fee for the filing of the certificate of amendment of October 30, 1942 used up only $15,000 of the $30,000 credit resulting by reason of fees previously paid by it to the Secretary of State, it was entitled to have that excess of $15,000 applied toward the fee required for the filing of the certificate of amendment
of October 15, 1952 and, therefore, the fee exacted on such date should have been only $20,000 instead of $35,000.
The plaintiff filed this suit on December 1, 1954, more than two years after the payment of the fee by it, alleging the facts set forth above and that "$15,000 in excess of the fees prescribed by law" have been paid over by the Secretary of State "to the state treasurer who, in turn, has credited the said $15,000 to the state treasury"; that as a result of these facts "$15,000 of the plaintiff's money was credited to the state treasury which did not represent State revenues"; that every year since 1952 the Legislature has appropriated all monies not constituting state revenues which were credited to the State Treasury to the payments of refunds to the parties entitled thereto and that as a result the defendants are authorized and obligated to refund and pay to the plaintiff such $15,000. The complaint demands judgment to the effect that:
"(a) That this court adjudicate and declare that the predecessor of the defendant secretary of state has exacted of plaintiff $15,000 in excess of the fees prescribed by law;
(b) That this court adjudicate and declare that the said $15,000 has been credited to the state treasury and does ...