Arkansas Building Loan Association v. Madden

By an act of the state of Texas approved April 3, 1889 (Tex. Laws 1889, chap. 78, p. 87), foreign corporations for pecuniary profit, with some exceptions not material here, desiring to do business in the state of Texas, were required to file with the secretary of state a duly certified copy of their articles of incorporation and obtain a permit to transact business in the state, paying a fee therefor, the permit not to be issued for a period longer than ten years from the date of the filing. By an act approved May 11, 1893 (Laws 1893, chap. 102, § 5, p. 158), it was provided 'that each and every private domestic corporation heretofoer chartered, or that may be hereafter chartered, under the laws of this state, and each and every foreign corporation that has received or may hereafter receive a permit to do business under the laws of this state, in this state, shall pay to the secretary of state, annually, on or before the first day of May, a franchise tax of ten dollars. Any such corporation which shall fail to pay the tax provided for in this action shall, because of such failure, forfeit their charter.'

Section 17 of article 1 of the Constitution of Texas, ratified February 17, 1876, provided: 'No person's property shall be taken, damaged, or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the state, such compensation shall be first made, or secured, by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the legislature, or created under its authority, shall be subject to the control thereof.'

And article 8:

'Sec. 1. Taxation shall be equal and uniform. All property in this state, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law. The legislature may impose a poll tax. It may also impose occupation taxes, both upon natural persons and upon corporations, other than municipal, doing any business in this state. It may also tax incomes of both natural persons and corporations, other than municipal, except that persons engaged in mechanical and agricultural pursuits shall never be required to pay an occupation tax;. ..

'Sec. 2. All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax;. . .'

'Sec. 4. The power to tax corporations and corporate property shall not be surrendered or suspended by act of the legislature, by any contract or grant to which the state shall be a party.'

'Sec. 17. The specification of the objects and subjects of taxation shall not deprive the legislature of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this Constitution.'

In July, 1896, the Arkansas Building & Loan Association a corporation of the state of Arkansas, filed its charter with the secretary of the state of Texas, and paid the fee required by the act of 1889, as well as the franchise tax of $10 required to be paid by the act of 1893, and received a permit to carry on its business in Texas for ten years.

The provisions of the acts of 1889 and 1893 were carried into the Revised Statutes of the state of Texas of 1895. By an act approved April 30, 1897, Tex. Laws 1897, chap. 104, p. 140), and an act approved May 15, 1897 (Tex. Laws 1897, chap. 120, p. 168), these provisions were amended so as, among other things, to increase the annual franchise tax theretofore required, to graduate it according to the capital stock of the corporation, to provide that the failure to pay it should work a forfeiture of the right to do business in the state, and that the secretary of state should declare such forfeiture. The taxes imposed by these amendments were less upon domestic corporations than upon foreign corporations. Thereafter the Arkansas Building & Loan Association offered to pay the secretary of state the $10 required by the prior law as the franchise tax for the ensuing year, but the secretary refused to accept that sum and to give to the company the franchise tax receipt therefor, and demanded the larger sum required by the law of 1897, which amounted to $205.

The company then filed a bill in the circuit count of the United States for the western district of Texas against the secretary of state of Texas, setting up the foregoing facts, and charging that the act of 1897 was void because in contravention of the Constitution of Texas, and of the commerce clause of the Constitution of the United States and of the Fourteenth Amendment to that instrument, and praying an injunction against the secretary of state restraining him from the collection of said alleged illegal tax, and from declaring complainant's permit and right to do business in the state forfeited by failure to pay the tax, and for general relief. To this bill defendant demurred, assigning as grounds that it set up no cause of action; that it disclosed that complainant had an adequate remedy at law; and that it showed that the demand made of complainant was 'in compliance with a valid existing law of the state of Texas.' The circuit court held that the law was valid, and dismissed the bill.

Messrs. F. E. Albright, L. A. Smith, and Drew Pruit for appellant.

Messrs. M. M. Crane and T. A. Fuller for appellee.

Mr. Chief Justice Fuller delivered the opinion of the court: