47 Colo. 63 | Colo. | 1909
delivered the opinion of the court:
On the -5th of February, 1908, the defendants in error filed a motion to dismiss the writ of error theretofore issued in this case, for the reason that plaintiff in error had failed to pay the annual corporation license tax provided hy Sess. Laws 1902, for the years 1902 to 1908, inclusive. For the purpose of avoiding the dismissing of the writ of error, the court then made a rule upon plaintiff in error to pay the tax. Plaintiff in error, instead of paying the tax, filed a protest against the order, contending that, inasmuch as the federal supreme court declared that portion of the act of 1902 providing for the imposition of the annual state corporation license tax upon foreign corporations to be unconstitutional, the provisions .of the act relating to domestic corporations were thereby rendered nugatory, and could not he enforced.—Am. Smelting & Refining Co. v. People, 204 U. S. 103. Plaintiff in error appears to misapprehend the effect of the decision. Sec. 64 of the act provides that domestic corporations shall on or before the 1st day of May of each year pay an annual
The American Smelting & Refining Company was a corporation which had obtained the right to transact business in the state of Colorado previous to the adoption of the law of 1902, and, upon its failure to pay the tax provided in that law, an action was brought in the name of the state to have such right to transact business forfeited. It was determined by the federal supreme court that the state, by granting the right to the foreign corporation to transact business within the state, in consideration of the payment of the corporation fee, entered into a contract with the corporation that thereafter no greater liabilities would be imposed upon it than upon like domestic corporations, and that in so far as the act of 1902 sought to impose a greater liability upon foreign corporations, which then possessed the right to carry on business within the state, than upon like domestic corporations, it was in violation of the contract, and therefore void. It was not determined that the entire section was unconstitutional, but only so much of it as applied to those foreign corporations which had entered the state previous to the enactment of the law. Plaintiff in error further says that the law ought not to be enforced as against domestic
In the act repealing the old law its provisions were re-enacted, with the exception that foreign corporations were placed upon the same basis as domestic corporations. The provision that the repeal shall not affect the liabilities and penalties provided for in the old act is a sufficient answer to the argument that it would not have imposed the tax upon the domestic corporations had it known that the provisions concerning foreign corporations of the character of the smelting company were inoperative. Plaintiff in error asserts that the provision that the failure to pay the tax can be pleaded as a defense to an action instituted by the delinquent corporation cannot be invoked in this case because the cause of action accrued previous to the passage of the act. We have already determined that such is the law.—Malley v, Wolfe Londoner, 98 Pac. 488. That rule is not applicable in this case. While the cause of action alleged in plaintiff’s complaint (if any there be) accrued previous to the passage of the act, the writ of error was sued out in this court in 1905 after the passage of the act. While the perfect
While it is true that the act of 1907, which repeals the sections of the law of 1902 under consideration, does not fix as one of the penalties for the nonpayment of the tax that the corporation shall be deprived of the right to bring and maintain suits, yet this action was brought while the law of 1902 was in effect, and the law of 1907, as we have seen, especially provides that the repeal of the law of 1902 shall
Plaintiff in error having neglected and failed to pay the tax as provided by law, the writ of error will be dismissed. ■Dismissed.
Decision en bcmc.