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§ 109 of three disinterested appraisers to appraise the full market value of his stock, without regard to any depreciation or appreciation thereof in consequence of the said merger or consolidation, and whose award (or that of a majority of them) when confirmed by the said court, shall be final and conclusive on all parties, and said consolidated corporation shall pay to such stockholder the value of his stock as aforesaid; and on receiving such payment, or on a tender thereof, or in case of any legal disability or absence from the state, on the payment of such award into said court, said stockholder shall transfer his stock to the said consolidated corporation to be disposed of by the directors thereof, or to be retained for the benefit of the remaining stockholders; and in case the said award is not so paid within thirty days from the filing of said award and confirmation by said court, and notice thereof to be given in the manner aforesaid unto said stockholder or said consolidated corporation, the amount of the award shall be a judgment against said corporation, and may be collected as other judgments in said court are by law collectible.

P. L. 1883, p. 242; P. L. 1888, p. 441; P. L. 1893, p. 121.

109. Consolidated corporation authorized to issue bonds and mortgage property.-When two or more corporations are merged or consolidated the consolidated corporation shall have power and authority to issue bonds or other obligations, negotiable or otherwise, and with or without coupons or interest certificates thereto attached, to an amount sufficient with its capital stock to provide for all the payments it will be required to make or obligations it will be required to assume, in order to effect such merger or consolidation; to secure the payment of which bonds or obligations it shall be lawful to mortgage its corporate franchises, rights, privileges and property, real, personal and mixed; provided, such bonds shall not bear a greater rate of interest than six per centum per annum; the consolidated corporation may purchase, acquire, hold and dispose of the stocks of other corporations of this state or elsewhere, and exercise in respect thereto all the powers of stockholders thereof, and may issue capital stock, either common or preferred, or both, to such an amount as may be necessary, to the stockholders of such merging or consolidating corporations in exchange or payment for their original shares, in the manner and on the terms specified in the agreement of merger or consolidation; which may fix the

amount and provide for the issue of preferred stock based on the § 110 property or stock of the merging or consolidating corporations conveyed to the consolidated corporation, as well as upon money capital paid in.

P. L. 1883, p. 242; P. L. 1888, p. 441; P. L. 1893, p. 121.

XII.-Taxation.

110. Real and personal property; how taxed.-All real and personal property of every corporation shall be taxed the same as the real and personal property of an individual; provided, that this action shall not apply to railway, turnpike, insurance, canal or banking corporations, or to savings banks, or to cemeteries, church property, or purely charitable or educational associations. Act of 1875, § 105; P. L. 1878, p. 61; P. L. 1879, p. 348; P. L. 1886, P. 345.

At one time corporations were taxed on the full amount of their capital stock paid in and accumulated surplus. The Act of 1866 (P. L. 1866, p. 1078) provides "that all private corporations of this State, except bank"ing institutions and those which, by virtue of any contract" (for an instance of such a contract see Singer Mfg. Co. v. Heppenheimer, 58 N. J. Law, 633) “in their charters or other contracts with this State, are "expressly exempted from taxation, and except mutual life insurance com"panies specially taxed, shall be assessed at the full amount of their capi"tal stock, paid in and accumulated surplus; and that the persons holding "the stock shall not be assessed therefor. * ** The Act of 1866 some"times worked injustice to corporations by subjecting them to a tax on "the full amount of their capital paid in, making no allowance for impair"ment of capital, and the design of the Laws of 1875 and 1878 (Section 105 "of the Corporation Act of 1875 and the amendment thereof, correspond"ding to Section 110 of the present act), was to relieve against that hard"ship by establishing a fairer and better method of taxation by making "the property of the corporation the subject of taxation instead of the "capital stock or stock and surplus. The intention was merely to sub"stitute the one method for the other in taxing the corporation." (Jersey City Gas Light Co. v. Jersey City, 46 N. J. Law, 194.) The Act of 1875 by its terms applied only to corporations "hereafter" organized.

In 1878 that section was amended by striking out the word "hereafter," thereby making the section applicable to all corporations formed under special act or any general law, excepting banking and other corporations as in the present act.

In 1879 an amendment was made whereby companies organized under the Manufacturing Companies' Act and supplements thereto could avail themselves of the privilege of the Act of 1875 on complying with certain requirements, and the amendment further provided that all corporations, whether manufacturing or otherwise, organized under the Act of 1875

§ III and the supplements thereto, should be taxed on the capital stock aɩ its actual value and accumulated surplus.

The effect of the decision above quoted was that so far as the Act of 1866 applied to assessing the full amount of capital paid in and accumulated surplus it was appealed by implication, but that the provision therein exempting such stock from taxation in the hands of stockholders was still in full force and effect. (Jersey City Gas Light Co. v. Jersey City, 46 N. J. Law, 194.)

In 1886 the Act of 1875 was amended so as to make the real and personal property of all manufacturing corporations taxable the same as the real and personal property of an individual.

Section 110 is intended to embrace Section 105 of the Act of 1875 and all the supplements thereto, and by its terms applies to "every corporation," excepting certain classes of corporations expressly enumerated. Section 105 and the Amendment of 1878 are general laws within the meaning of the amended constitution. (State, Trenton Iron Co., v. Yard, 42 N. J. Law, 357.)

The taxation which this section comprehends should not be confused with the franchise tax or license fee which corporations are required to pay under the Act of 1884. (See p. 114, post.) That is a tax or fee which the State exacts as a condition to the grant of the corporate franchise and is not a property tax. Nor on the other hand can the franchise be taxed as property by virtue of this section or the Tax Act of 1866. (Passaic Water Co. v. Paterson, 56 N. J. Law, 471.) Under this section and the Act of 1866, too, only such property as is actually within the State can be taxed. The franchise tax is based upon the amount of capital stock issued and outstanding at par, without regard to its actual value. (Singer Mfg. Co. v. Heppenheimer, 58 N. J. Law, 633.) The franchise tax is a state tax; that under the Act of 1866 is a local tax. Co. v. Berry, 52 N. J. Law, 308; s. c., 53 Id., 212.)

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The visible personal property of a corporation is assessed and taxed in the township or ward where such property is found (P. L., 1891, p. 192, § 6), and other personal property where its principal office is and its real estate is assessed in the township or ward where it is situated. (G. S., p. 3294, § 67.)

Where the real property of a corporation is situated partly in one township and partly in another, and is occupied by the corporation, it will be subject to taxation in the township where the principal office is. (Warren Mfg. Co. v. Warford, 37 N. J. Law, 397; Warren Mfg. Co. v. Dalrymple, 56 N. J. Law, 449, Gen. Stat., p. 3293.)

This section does not now apply to trust companies. (P. L., 1899, p. 467); nor to banks (P. L., 1899, p. 448).

XIII. Lost Certificates of Stock.

III. New certificates of stock may be issued for certificates lost or destroyed.-Every corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost or destroyed, and the directors authoriz

ing such issue of a new certificate may, in their discretion, require § i12-3 the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, as indemnity against any claim that may be made against such corporation; a new certificate may be issued without requiring any bond when, in the judgment of the directors, it is proper so to do.

P. L. 1882, p. 205; P. L. 1892, p. 166.

A certificate of stock should not be issued to take the place of a lost certificate without a resolution of the board of directors. The new certificate should state that it is issued to take the place of a lost certificate, and the company should always require the party receiving the new certificate to give it a bond to indemnify the company against any loss by reason of the issue of such new certificate.

112. Proceedings in case of refusal to issue new certificate of stock. Whenever any corporation shall have refused to issue a new certificate of stock in place of one theretofore issued by it, or by any corporation of which it is the lawful successor, alleged to have been lost or destroyed, the owner of the lost or destroyed certificate, or his legal representatives, may apply to the circuit court of the county in which the principal office of the corporation is located, for an order requiring the corporation to show cause why it should not be required to issue a new certificate of stock in place of the one so lost or destroyed; such application shall be by petition, duly verified, in which shall be stated the name of the corporation, the number and date of the certificate, if known or ascertainable by the petitioner, the number of shares of stock named therein and to whom issued, and a statement of the circumstances attending such loss or destruction; thereupon said court shall make an order requiring the corporation to show cause, at a time and place therein mentioned, why it should not be required to issue a new certificate of stock in place of the one described in the petition; a copy of the petition and order shall be served upon the president or other head officer of the corporation, or on the cashier, secretary or treasurer thereof, personally, at least ten days before the time designated in the order.

P. L. 1882, p. 205; P. L. 1892, p. 166.

113. Court may proceed in summary manner. At the time and place specified in the order, and on proof of due service thereof, the court shall proceed in a summary manner, and in such mode as it may deem advisable, to hear the proof and alle

§ 114 gations offered in behalf of the petitioner, or the corporation, or other interested party, relative to the subject matter of inquiry, and if upon such inquiry the court shall be satisfied that the petitioner is the lawful owner of the number of shares of the capital stock, or any part thereof, described in the petition, and that the certificate therefor has been lost or destroyed and cannot, after due diligence, be found, and that no sufficient cause has been shown why a new certificate should not be issued in place thereof, it shall make an order requiring the corporation or other party, within such time as shall be therein designated, to issue and deliver to the petitioner a new certificate for the number of shares of the capital stock of the corporation, which shall be specified in the order as owned by the petitioner, and the certificate for which shall have been lost or destroyed; in making the order the court shall direct that the petitioner deposit such security, or file such bond in such form and with such security as to the court shall appear sufficient to indemnify any person other than the petitioner who shall thereafter appear to be the lawful owner of such certificate stated to be lost or stolen; and the court may also direct publication of such notice, either preceding or succeeding the making of such final order, as it shall deem proper; any person who shall thereafter claim any rights under the certificate so lost or destroyed shall have recourse to said indemnity, and the corporation shall be discharged from all liability to such person by reason of compliance with the order; and obedience to said order may be enforced by the court by attachment against the officers of the corporation, on proof of their refusal to comply with the same.

P L. 1882, p. 205; P. L. 1892, p. 166.

XIV. Fees on Filing Certificates; Sundry Provisions.

114 Fees on filing certificates.-On filing any certificate or other paper, relative to corporations, in the office of the secretary of state, the following fees and taxes shall be paid to the secretary of state, for the use of the state: for certificate of incorporation, twenty cents for each thousand dollars of the total amount of capital stock authorized, but in no case less than twenty-five dollars; increase of capital stock, twenty cents for each thousand dollars of the total increase authorized, but in no case less than twenty dollars; consolidation

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