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 thе tax, filed a protest against the order, contending that, inasmuch as the federal supreme court declared that portion of thе act of 1902 providing for the imposition of the annual state corporation license tax upon foreign corporations tо be unconstitutional, the provisions .of the act relating to domestic corporations were thereby rendered nugatory, and cоuld not he enforced.—Am. Smelting & Refining Co. v. People,
The American Smelting & Refining Company was a corporation which had obtained thе 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 рrovided 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 federаl supreme court that the state, by granting the right to the foreign corporation to transact business within the state, in consideration of the рayment of the corporation fee, entered into a contract with the corporation that thereafter no greatеr 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 сorporations, it was in violation of the contract, and therefore void. It was not determined that the entire section was unconstitutiоnal, but only so much of it as applied to those foreign corporations which had entered the state previous to the enaсtment 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 excеption that foreign corporations were placed upon the same basis as domestic corporations. The provisiоn that the repeal shall not affect the liabilities and penalties provided for in the old act is a sufficient answer to the argument thаt 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 fаilure 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 havе already determined that such is the law.—Malley v, Wolfe Londoner,
While it is true that the act of 1907, which repeals the sections of the law of 1902 under considerаtion, does not fix as one of the penalties for the nonpayment of the tax that the corporation shall be deprived of thе 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 thаt 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.