G.H. N. Ry. Co. v. Hardy, Secretary , 93 Tex. 340 ( 1900 )

This is an application for the writ of mandamus. The relator is a railroad corporation operating a line of road within the State. Having prepared for issue a certain series of bonds of $1000 each, it caused them to be presented to and approved by the Railroad Commission. Fifty of such bonds were thereupon presented to the respondent as Secretary of State with the request that he register them in his office and indorse them as the statute requires. The Secretary thereupon demanded a fee of one dollar for each bond, and the relator declining to pay, he refused to accede to the request. This suit is brought to compel the registration of the bonds without the payment of any fee. The pleadings admit the facts as stated.

The question is a difficult one and involves the construction of article 4584i of the Revised Statutes. The previous article provides for the approval of the bonds of a railroad company by the Railroad Commission. Article 4584i then reads as follows: "When any such bonds shall be presented to the Secretary of State with the direction aforesaid to register, he shall register said bonds by entering a description thereof in a book to be kept for that purpose, which shall show the date, number, amount, when due, the rate of interest on each bond, and also the date when the same is registered. The Secretary of State shall indorse on each bond under the seal of his office and his official signature, together with the date thereof, as follows: `This bond is registered under the direction of the Railroad Commission of Texas.' No bond or other evidence of debt hereafter issued by or under the authority of any person, firm, corporation, court, or railroad company, whereby a lien is created on its franchises or property situated in this State, shall be valid or have any force until the same has been registered as required herein." Article 2439 of the Revised Statutes provides that the Secretary of State "is authorized and required to charge for the use of the State the following fees: * * * for every official certificate, a fee of one dollar. * * *" The contention is that the indorsement which the Secretary is required to place upon each bond is a certificate within the meaning of the law.

As early as 1848 a statute was passed which required certain State officers, including the Secretary of State, among other things, "to give certificates certifying to any fact or facts contained in the papers, documents, or records of their offices, to any person applying for the same." Pasch. Dig., art. 2806. This was, so far as we know, the only statute in force with reference to certificates by the Secretary of State in 1883, the year in which the fee bill in question became a law.

We do not doubt that the indorsement which the Secretary is required to place upon the bonds is a certificate within the strict legal definition of that term. But the question is, did the Legislature understand that in requiring the indorsement, they were providing for a certificate for which a fee should be charged? Did they intend to require the companies to pay for having the bonds indorsed? We think not, and for two reasons.

1. It seems to us that if the Legislature had in mind the matter of payment by the company for the service to be rendered by the Secretary of State and had intended that the company should so pay, they would either have so provided by express words or would at least have called the indorsement a certificate, so as to bring it within the literal meaning of the statute with reference to fees for certificates by the Secretary of State. It would have been easy to say that "for the registration and indorsement of each of which bonds, a fee of one dollar must be paid," or to have said that "the Secretary shall indorse upon each bond a certificate in the following form," etc. While, as we have said, the required indorsement is technically a certificate, perhaps there was not even a lawyer in the Legislature which pased the act who thought they were requiring a certificate for which a fee should be charged.

2. Again, it is to be noted that the act in force when the present law requiring a fee of one dollar for each certificate was passed, only required a certificate when applied for. The application was a voluntary act on the part of the person making the demand and was not a duty required of him by law. The requirements, however, of article 4584h and 4584i are imposed by the State, not in the interest of the railroad companies, but in that of the public. Since the law imposed an additional burden upon these corporations, the Legislature may have considered it inequitable to make them pay for the work. At all events, there is a broad distinction between official labor performed at the instance of the State and for the public benefit and such work performed for a person on his own private account.

We think the mandamus should issue and it is so ordered.

Mandamus granted.