Flowing Wells Co. v. Culin

95 P. 111 | Ariz. | 1908

DOAN, J.

— As the second assignment of error stands or falls with the first, the two will be considered together. The proper determination of the question presented involves a construction of Act No. 82, page 147, Session Laws of 1903. This act, eliminating that part which has no application to the present ease, provides as follows: “That whenever any corporation . . . shall fail to appoint a bona fide agent . . . then . . . any resident . . . may bring, prosecute and maintain ... in his own name, an action in any court of record ... to have and procure a judicial dissolution and disincorporation; . . . and whenever it is made to appear to any such court by petition or complaint . . . that . . . the above-named . . . situation or condition exists, . . . such court shall forthwith order or cite such corporation to appear before it, . . . and if; upon hearing of [or] trial it be made to appear that . . . said . . . condition or situation . . . exists, such court shall thereupon dissolve and disincorporate such corporation,” etc.

The plaintiff below, who is the appellee herein, bases his argument in support of the judgment upon the broad ground that the defendant having, at the time of filing the petition, failed, whether through inadvertence or otherwise, to appoint an agent under the provisions of the act above cited, the court is thereupon bound to dissolve and disincorporate the defendant, and the appointment of such agent after the filing of the petition and the institution thereby of the action is of no avail. The language used indicates that the primary object of this provision of the act was to secure the appointment of an agent on whom process could be served. This is all the , interest of the public would require. The dissolution and disincorporation was only the penalty that should be imposed upon the failure or refusal of the .corporation to carry out the primary object of the statute, and this penalty was apparently provided as the means to compel obedience to this requirement. In harmony with this construction, the statute, in directing the mode of procedure to enforce compliance with its requirements and to impose a penalty for failure or refusal so to. do, provides that if, after the corporation has had notice of its dereliction, it still fails to appoint an agent, and the situation or condition alleged in the petition exists at the time of the hearing, then, a distinct refusal to obey the law being manifest, the court is authorized to inflict the penalty provided by the act. There is no authority conferred upon the court to dissolve or disincorporate unless this condition exists at the time of the hearing or trial. The language used does not support the theory of appellee that the legislature, by the word “exists,” meant to refer to the time the action was instituted. If the legislature had meant this, it could have said this, and could have enacted that, “whenever it is made to appear that at the time of filing said petition . . . the above named . . .'situation or condition existed,” citation should issue, ‘ ‘ and if the facts alleged in the petition be satisfactorily established by competent evidence upon the hearing or trial, such court shall thereupon dissolve and disincorporate said corporation.” But it did not say this, but instead thereof said, “And if upon hearing of trial it be made to appear that . . . said . . . condition or situation . . . exists, such court shall thereupon dissolve and disincorporate such corporation. ’ ’ This language plainly and unquestionably predicates the court’s authority to dissolve and disincorporate upon the existence of such condition or situation at the time of hearing or trial.

If we should concede the theory of the appellee, which we do not think is sustained by sound reasoning, and is certainly not supported by the language of the act, we nevertheless recognize that it is the duty of all courts to confine themselves to the words of the legislature — nothing adding thereto; nothing demitting. The court has no authority to extend a law beyond the fair and reasonable meaning of its terms, because of some supposed policy of the law, or because the legislature did not use proper words to express its meaning. Everett v. Wells, 2 Scott (N. C.), 531; Tompkins v. First Nat. Bank (Sup.), 18 N. Y. Supp. 234. This act, while remedial in its object, is also highly penal, and those affected by penal statutes are entitled to have the same construed strictly. Therefore, under the rule that “a close construction should be given to statutes which work forfeitures or confiscation of property,” the court, in construing this statute, will not give that meaning to the words used which would operate to dissolve or disincorporate, unless it plainly and unequivocally appears that such was the intention of the legislature. Abbott v. Wood, 22 Me. 541; United States v. Athens Armory, 35 Ga. 344, Fed. Cas. No. 14,473.

The answer and return of defendant stating that the situation or condition alleged in the petition did not exist at the hearing or trial, but that the defendant had theretofore appointed an agent in full compliance with the law; that said appointment had not been revoked, but that it was then, and at all times since the making thereof had been, in full force and effect; that it had been and was then duly filed with the territorial auditor; and that the failure of defendant to appoint an agent and file said appointment did not then exist, for the reason that defendant had theretofore made and filed such appointment — stated facts sufficient to constitute a defense, and the court erred in sustaining the demurrer thereto, and in entering the judgment ordering the dissolution of the corporation.

The judgment is reversed, and the case remanded to the lower court, with instructions to overrule the demurrer, and for such further proceedings as are consistent with this opinion.

KENT, C. J., and SLOAN and NAVE, JJ., concur.