123 Kan. 176 | Kan. | 1927
The opinion of the court was delivered by
This action was brought by the A. R. Young Construction Company against D. E. Dunne & Co., a partnership, to recover for a breach of a contract by the defendants to purchase improvement bonds of the city of Miami, Okla., which were to be issued and delivered in installments as the improvements on certain streets were completed. It was alleged that as each of the streets was completed and the officers of Miami issued bonds to plaintiff,
After the introduction of evidence as to the issuance and character of the bonds and also as to market value of such bonds, at different times, a question arose as to the right of plaintiff to bring the action because its charter had previously been declared forfeited and it was no longer a live corporation. Application was made to amend and substitute Cecil L. Newbold, receiver, as plaintiff, which was at first allowed over the objection of defendants. It appears that Warren Brothers had brought an action in the nature of a creditor’s
Instead of bringing a new suit in the name of the receiver, plaintiff concluded to submit on appeal the question as to the validity of the action of the trial court in the dismissal of the case.
The first question argued upon plaintiffs’ appeal is as to the effect of the declaration of forfeiture by the state charter board. The pertinent part of the statute relating to forfeiture of the charter of such a corporation is:
“The failure of any domestic corporation to file the annual statement and to pay the annual fee herein provided for within ninety days of the time for filing and paying the same shall, in addition to other penalties, work the forfeiture of the charter of such corporation organized under the laws of this state, and the charter board may at any time thereafter declare the charter of such corporation forfeited.” (R. S. 17-706.)
The plaintiff failed to file the annual statement required by the statute for the year 1921, and failed to pay the required fee for that year. Its default is not open to controversy. On the last day of 1922 the state charter board formally declared the forfeiture of plaintiff’s charter. It is contended that the action taken was ineffective because no notice was given the corporation of the proposed action. It is said that the forfeiture is quasi-judicial in its nature and that reasonable notice is a requisite under the due process
“It is within the power of the legislature to provide that the failure of a corporation to comply with certain prescribed requirements and duties shall work a forfeiture of its charter and end its corporate existence without the judgment of a court.”
And it was further declared that the failure to make ».nmml statements and pay a prescribed fee shall operate as a forefeiture of its charter, and when the declaration is made as the statute provides the existence of the corporation is ended. The prescribed steps named in the statute quoted must be regarded as a legislative and administrative forfeiture and not a judicial one, and therefore the notice required- in judicial proceedings is not essential. In Razor
“But they have no application to a case where, as in the case .before us. full legislative power over the subject matter has been conferred by the state upon a municipal corporation. Where that, has been done, a legislative determination by the local legislative body is of the same effect as though made by the general legislature.”
In Reetz v. Michigan, 188 U. S. 505, where the court had before it a statute providing that a board of registration should inquire into and determine whether those engaged in the practice of medicine possessed the requisite qualifications, registration having been denied to an applicant, he contended that the action of the board was un
“When a statute fixes the time and place of meeting of any board or tribunal, no special notice to parties interested is required . . . the statute is itself sufficient notice.” (Syl. See, also, Peck v. Linney, 97 Wash. 103; McClure v. Township of Oxford, 94 U. S. 429; Home Telephone Co. v. Los Angeles, 211 U. S. 265.)
In behalf of plaintiff something is said to the effect that the- state charter board was estopped to declare a forfeiture because of a letter written by the attorney-general to the plaintiff saying that he contemplated bringing an action against the corporation for penalties of $100 plus $5 per day for each day’s omission after December 31,1922, because of noncompliance with the statute, and stating that if compliance was not made before August 1, 1922, action would be commenced. That letter had no effect upon the forfeiture. Plaintiff was bound to take notice of the statute, and the action or statement of a single member of the board, even if it had gone to the extent of a promise to reconsider the forfeiture, would not operate as an. estoppel. (State Bank v. Bank Commissioner, 110 Kan. 520, 204 Pac. 709.) No fees have yet been paid either by the corporation or the receiver, nor has the required report been made by either of them.
A question is raised as to the substitution of the receiver, New-bold, as plaintiff. The present action was commenced March 31,. 1921. The action in the federal court in which Newbold was appointed receiver was not brought by Warren Brothers against the plaintiff until June 1, 1922. It appears that no action was taken in this action by the receiver until about the close of the trial, when it came to his attention that plaintiff’s charter had been forfeited, a motion was made for the substitution of himself for the plaintiff. An ex parte order was first allowed, and three days later on his own application the order was vacated and set aside. At the close of plaintiff’s evidence in this case, the motion to substitute was renewed. Testimony was then admitted showing the forfeiture of the charter rights of the corporation about four years before the application was made. In that connection the defendants demurred to
The judgment is affirmed.