No. 7383 | Wash. | Feb 17, 1909
Lead Opinion
— This action, instituted by Rothchild Bros., a foreign corporation doing business in this state, for the recovery of the value of merchandise sold, was commenced prior to the taking effect of chapter 140, Session Laws of 1907. 'The complaint did not allege that the plaintiff had paid its
“That said action be dismissed on the ground and for the reason that the plaintiff is a foreign corporation doing business in this state and has wholly failed to allege or prove that it has paid its license fee last due as required by chapter 140 of the Session Laws of the state of Washington for the year 1907.”
The court, having heard the arguments of counsel, made and entered an order sustaining the motion and dismissing the action. The plaintiff has appealed.
The appellant contends that § 7, of chapter 140, Laws 1907, p. 271, cannot be construed as applying to this action, while the respondent makes the contrary contention. It is admitted that the action was commenced prior to the taking effect of said act, and that the pleadings were not fully at issue when it did take effect, no answer or reply having hcen served until after August 1, 1907. The contract sued upon was made prior to the passage of the act, and the appellant at that time had a perfect right to maintain its action in the superior court witho.ut alleging or proving payment of its annual license fee last due. Section 7 of the act reads as follows:
“No corporation shall be permitted to commence or maintain any suit, action or proceeding in any court of this state, without alleging and proving that it has paid its annual license fee last due. ...”
It is unnecessary for us to determine whether the section applies to actions pending at the date of its enactment, our view being that it only affects the plaintiff’s capacity to sue. Bal. Code, § 4907 (P. C. § 347), provides that the defendant
The trial court erred in dismissing the action. The judgment is reversed, and the cause remanded for a new trial.
Rudkin, C. J., Mount, and Gose, JJ., concur.
Dissenting Opinion
(dissenting)- — I am unable to concur in the foregoing opinion. It is said by the majority that it is unnecessary to determine whether the act of March 12, 1907, applies to actions begun before that act went into effect, but to my mind this is the question, and the only question, the record presents. To an understanding of the point involved it is necessary to make a short statement of the facts.
The legislature of 1907 enacted a law relating to fees to be paid by corporations doing business in this state. By the sixth section of the act it was provided that every corporation incorporated under the laws of the state, and every foreign corporation having its articles of incorporation on file herein, should pay an annual license fee in a fixed sum to the secretary of state, on or before the first day of July in each year. By the seventh section it was provided that no corporation should be permitted to commence or
The prohibition in the statute, it will be observed, is as much against the maintenance of an action without proving the payment of the license fee last due, as it is against the commencement of an action without alleging the fact. When the defendant moved to dismiss for want of such proof, therefore, it necessarily raised the question whether or not the statute applied to this action, and in my judgment, the lower court was justified in determining it. Whether the question was correctly decided I need not discuss, since the majority hold it is not before us, but I may add that I am unable to discover any reason why it was not correctly decided. The statute is a revenue measure. The section requiring proof to be made in the courts as a prerequisite to the maintenance of an action was intended as a means of enforcing the collection of that revenue. The fee is one the legislature had the power
I am aware that the majority say that the question whether the fee had or had not been paid was not before the trial court for the reason that the defendant’s motion was not timely; that he ought to have raised the question when he answered. But this to my mind is not a sufficient reason. The collection of the public revenue ought not to be made to depend on the whim of a defendant. The public interest is involved, and the court ought to be permitted to raise the objection on its own motion if the defendant neglects it, and when the question is suggested at any time before judgment, no matter in what form, it should be held timely and sufficient.
The sections of the statute cited in the main opinion relating to the manner of raising objections to the plaintiff’s capacity to sue do not, in my opinion, have anything to do with the question here suggested. They were enacted long prior to the enactment of this statute and are superseded by it in so far as there is any conflict between them. Nor do they control the practice under the later statute further than they are applicable to the changed conditions. The later statute, as has been shown, prohibits the maintenance of an action without making certain proofs, and to the practice under such a statute the sections are wholly inapplicable, since they relate to objections to be taken by answer or demurrer, not to objections going to the sufficiency of the evidence. The judgment should be affirmed.
Chadwick and Dunbar, JJ., concur with Fullerton,