*1 аmount determined in an the claim prove reasonable. proper and J., WILLIAMS,
DAVISON, V. C. J.,C. JACKSON, WELCH, JOHNSON, BERRY, JJ., concur.
IRWIN Q. WIL ex rel. Mac
STATE of LIAMSON, Attorney of Okla General Error, homa, Plaintiff CORPORATION, corpora OIL
EMPIRE tion, in Error. Defendant
No. 37760.
Supreme of Oklahoma. Court 7, 1960.
June *2 setting
1953 and 1954 the maximum forth amount capital had invested in it then action Oklahoma. Relator instituted this for the penalties imposed collection of the by said alleging that reason required defendant’s failure to file affidavits, penal- it would be to the prescribed. ties upon The cause defendant’s was tried plaintiff’s demurrer to petition. The de- upon plain- murrer was sustained and tiff’s failure plead, to further the trial court petition dismissed judg- rendered ment defendant, for resulting appeal. in this In sustaining the demurrer and dismiss- ing petition, the court found that the Corporation Act, by creating 1947Business prescribed by different from that said 111(b) by implica- infra, portion tion that 111(b) which im- poses per day penalty for failure to $25 file the The court also found that there a possibility that 111(b), infra, may of said Sec. Gen., Atty. Q. Williamsоn, Fred Mac be ineffective because of the construction Gen., Atty. of Okla- Hansen, First Asst. placed upon same offi- executive homa, plaintiff in error. for enforcement, cers of the State in its with- Miskovsky, Miskovsky Marian P. & Legislature taking any steps out the City, defendant Opala, period correct such long construction over a error. of time. These had officers followed an order entered in 1932 the District Court WILLIAMS, Vice Chief Justice. County of Oklahoma which held the this action relator commenced at The provision to be invalid. request of Oklahoma then Governor alia, pre- O.S.1951 inter § provided 18b(c), in Title O.S.1951 (a) equal scribed that a fee to one-tenth of comply alleging defendant failed percent of the maximum amount aof 111(b). foreign corporation’s capital invested in disputed. The defend- The facts are not paid Oklahoma shall be year for the fiscal Empire Company, foreign is a ant, Oil corporаtion qualifies in which the to do organized existing corporation, under Oklahoma; business in (b) for each suc- duly of Delaware laws of the State ceeding year every fiscal such corporation The Oklahoma. Articles of domesticated shall file an affidavit and therein show stated the maximum amount Domestication maximum amount of that the cor- proposed capital invested or to be in- poration had invested in Oklahoma for the at time during in Oklahoma vеsted year filed; for which the affidavit is (c) if $20,000. year would exceed A current corporation’s maximum in- has percent of one of one-tenth of said that creased over a fee has paid $20,000 previously paid, been then a fee one- provided see infra. percent paid of one tenth on the increase; filed, did not file the (d) The defendant affidavit re- if an affidavit is not quired years offending corporation subj said Section 111 ect to a penаlty charges have been each per $25 by the State: laws
default. to be resolved principal proposition The ****** *3 Corpora- is: Did * ** “(2) Issue a certificate or provi- repeal tion Act of amended domestication certificate of supra? sion of said Sec. * * * * * ;” *, may be, as the case adopted the Legislature In 1947 1.235) O.S.Suppl.1947 (18 Section 235 § Act”, 18 O.S.1951 “Business Report of Domesticated 1.250; 18,Chapter A, “Annual Session 1.1to §§ Corporation: of Execution and Contents. title 1947, pages 189. The Laws 84 to year July Each first between the 20, was : Act, House Bill No. this thirty-first August every and providing “An Act revision of * * * corporation shall, domesticated corporation Okla- of the State of laws and make execute an annual corpora- ; business homa establishing * ** Such annual shall be code; repealing Sections” and corporate executed under the seal and governing business (previous statutes presi- signed acknowledged and corрoration, and domesti- domestic dent, vice-president, treasurer, or the cated, repealing specifically but not secretary and or attested assist- O.S.1941, 111.). secretary corporation, ant and Act, in pertinent provisions of The forth: set corporations are so far domesticated concerned, part as follows: are “(8) aggregate The number of (18 O.S.1951 204(b) Section has shares which the au- “a (provides that domesticated 1.204(b) thority allot, by classеs, itemized
corporation may from this be ousted par shares, par value of without shares Secretary of State and series, class; value, any, within a if of domestication revoked certificate cancelled”) “(9) aggregate The number of al- classes, shares, par
lotted itemized shares, par without value of shares period for a “(2) If series, class; value, any, within a if year busi- (1) has transacted no of one tangible property no has had ness and еxpressed in “(10) amount, The dol- by its annual State as revealed capital lars, of stated amount added). report; (Emphasis surplus of the paid-in ration fees, franchise scribed “(7) [*] Upon by law this [*] thirty (30) [*] taxes, [*] State; days changes pre [*] n corpo ** any [*] ” consideration received after count “(a) The allocation between stated of, giving allotted paid-in surplus effect to: shares; for, or on ac- total Any “(b) amount added or trans- (18 1.232) : capital upon the allot- ferred stated filing “Articles statements: dividend, * * * ment of share certificаtes, shares as a If, a. issuing of any exclusive of transferred amount articles of or amended domesti- articles paid-in surplus; ** * from receipt cation, of such * * * articles, “(c) Any the Secre- amount added or trans- articles, paid-in tary finds that such to stated of State ferred sur- documents, plus shares, any, if the allotment without accompanying any exclusive of amount transferred conform taxes, surplus; capital from shall, paid-in all stated when franchise
1 nn “ cellеd, issue, decrease increase or and shall file and (d) Any mail a paid-in capital and provided certificate of sum of the revocation stated any exchange Subsection surplus resulting from c of this shares; Act.” or reclassification Any in the of the decrease sum “(e) (18 1.238): O.S.1951 § surplus re- paid-in capital and stated “Filing reports failing false redemption and can- sulting from misdemeanor, reports Any a. shares; and
cellation of corporation which delivers to the Sec- stat- Any “(f) other reduction retary of State filing report, *4 in with ed made accordance document, paper containing any or ma- country or under laws of the state terial, representation statement or corporation formed.” which the false, false, which is knowing it to be 1.236) O.S.Suppl.1947 (18 shall guilty .236 be deemed of a misdemean- or, upon and conviction thereof shall Report: and Time “Filing of Annual punished by be a fine in an amount not Penalty, Every and do- domestic a. exceeding ($5,- Five Thousand Dollars shall, corporation, between mesticated thirty- day July and the the first of 000.00). year, de- day of each August first of Any “b. any corporation officer of duly Secretary State a
liver to the
of
who wilfully
make,
fails or refuses to
*
report
executed annual
execute, or
Secretary
deliver to the
of
default.
duly
liver an annual
sions of this Act
and at the time
($25.00) per
“b.
delivered
Every
[*]
In case
of
failing to execute and
day
domestic
to the
[*]
Twenty-five Dollars
required
report in the manner
during such
shall
such
Secretary
[*]
or domesticated
be
report
subject
[*]
period of
of State
be
provi-
[*]
not
de-
a
jail
ished
upon
Hundred
time
deemed
or
a fine in an amount not exceeding Five
such fine and
State
paper
not
conviction thereof shall be
required by
by imprisonment
for filing any report, document,
guilty
exceeding
in the form and within the
Dollars
imprisonment.
of a
sixty
($500.00),
misdemeanor,
in the
Act,
(60) days,
shall
or both
county
pun-
be
or
(15th)
on or
fifteenth
before the
officer,director,
Any
agent
“c.
or
year,
of November
such
the Secre-
any corporation,
makes, executes,
who
tary
immediately there-
shall
State
made,
signs,
or
or causes to be
executed
give
of such
after
final written notice
signed, any report,
or
document, or
delinquency
corporation,
to-
to such
paper
containing
material state-
fran-
gether with a statement
representation
ment or
which is false
transact
engage
chise to
in and
business
knowing
be
knowing
false and
in
is about to
revoked
be
document,
report,
рaper
that such
or
incorporation
and its certificate of
or
Secretary
is to be filed with
domestication,
case
certificate
as the
State,
any officer, director,
agent
or
or
be,
cancelled.
any corporation,
who delivers or
report
Secretary
“c.
In the
annual
event such
to be delivered to the
causes
any report,
filing
domesticated
be not
of State
docu-
Secretary
ment,
paper containing any
delivered to the
of State on
or
material
(15th) day
representation
or before the fifteenth
or
statement
which year,
false,
knowing
December of such
he
im-
it to be
shall
false
shall
misdemeanor,
a
mediately
guilty
thereafter declare its
fran-
deemed
authority
engage
chise
in
pun-
or
conviction thereof shall be
imprisonment
county
transact
business
this State revoked
ished
exceeding
year,
jail
(1)
can-
certificate of domestication
not
аn
business
exceeding Five
estimate of the amount of
in an
fine
amount
state;
payment
or both
be transacted within
($5,000.00),
Dollars
Thousand
Secretary of State
of the fee
imprisonment.”
such fine and
supra.
scheduled
said Section
1.239):
239 (18 O.S.1951
Act,
236 of
18 O.S.
Sections
such
reports: penalties and
Failing to file
require an
Suppl.1947
1.236
1.235 and
§§
thereof,
Any
a.
collection
report
concerning the
annual
of information
fails, refuses,
neglects
to de-
surplus
paid-in
stated
of State
liver
corporation;
Sec-
conjunction
document,
paper,
any report,
filing
tion 204 of
said
O.S.1951 §
report,
in the
than its annual
other
tangible property
located
statement of the
required
the time
form and within
incor-
within
Said
Act
porates
in Sec-
the same
forth
set
per
($10.00)
Ten
Dollars
pro-
additional
delay
total
not ex-
to a
amount
vision that
if this
filed
($200.-
ceeding
Hundred Dollars
Two
*5
date,
certain
the
of State shall
The failure
00) for each such default.
proceed tо
the articles
cancel
revoke
delivery
report,
of each
docu-
as to the
of domestication.
separate
ment,
paper requiring
a
separate de-
filing shall be deemed a
by
Bill
As
the
of House
shown
title
penalties
cumula-
fault and the
shall be
20,
Session,
the
supra,
No.
1947
Business
tive.
Corporation
repealing
all
Act and the
Every penalty
fine assessed
existing
concerning
then
in
“b.
the
statutes
any corporation
corporating
against
сorporations
for violation
of domestic
may
Act
provisions
domesticating foreign corporations
of the
con
this
by
an action
18,
Corpora
collected in
instituted
be
tained
the
Business
Attorney
the
the
supra,
either
General
not intended to be
was
county in
attorney
which
county
of the
continuation, merely
cumulation
a re
—
of the
registered office
previous
the
vision of the
sub
on this
statutes
ject
located.”
entirely
in this State is
Act
matter. This
an
new
governing
enactment of
formation
laws
the
provisions con-
Comparing
above
the
corporations
permitting
of business
Corporation
Act with
in the
tained
corporations
foreign
to
do business in
requirements
out in said
set
pro-
supra,
find that all of the
111(b),
we
111(b)
been incor-
have
of Section
visions
Where a later act covers the whole
enlarged by
porated
the Business
into and
subject
acts,
matter of earlier
contains
exception
with the
Corpоration Act
new
it
in
and shows that was
supra,
111(b),
schedule of fees.
tended,
only
not
as a
substitute
domestication, an
requires,
time of
at the
acts,
subject
earlier
to cover the whole
but
to
as to the amount
affidavit
then
by
Leg
matter
under consideration
Oklahoma; payment
fee
invested
islature,
prescribe
only
rules
amount;
annual affi-
on such
based
thereto,
respect
operates
it
repeal
with
showing
information and
davit
supersede
relating
all former statutes
increase;
payment of
additional
Application
matter.
of Jack
involved herein
the penalty
577,
son,
135 All of thе Business 263, 95 P. of Section 236 Brown, 20 Okl. In Fritz v. O.S.Suppl. Act, formerly 440, said: 18 Court 437, pages 439 and at 1947 which included the § repealing modes “There three are provision supra, was of said Section repeal repeal, express anBy statute: 1949, p. entirety by Laws act repeal by an by implication, and 127, repeal By 23. reason latter subject, which covering the same provision sought to penalties imposing by repeal sub- called method often longer, nor collected this aсtion no ” ** stitution. at the time action of the institution of this Art Wall v. Ripey & Son and in W. J. it, part was De of the of this State. laws 1119, 600, at Mill, P. Paper 112 27 Okl. plaintiff’s petition fendant’s demurrer page 1120, we stated: properly was . sustained the trial court. Union State Farmers’ “In Smock v. We do not believe that Bank, this court 22 P. 98 Okl. of said Section was covers Bill 615 said: ‘House No. re-enacted inclusion in the Oklahoma chapter 8, Wil grounds entire of said compilation Statutes Ann.St.1903, and of Rev. & son’s seq., authorized et O.S.1951 Lеgislature subsequent acts four adopted and which as a code pertains above referred to. Suppl., Atchley 144. general subject-matter, seeks same Examiners, Board of Barber Okl. pur accomplish general the same 257 P.2d be held that such a code we re-enactment pose, the main is a and in although came law have new matter *6 language, in the same of those statutes been re inserted or theretofore sections opinion the we thеrefore of are pealed were included In the in code. by Legisla said act intended that was present case, compiler of the Oklahoma the for all the laws a ture as substitute Statutes the to in annotation said subject-matter existing the then Section 111 makes Busi reference to the act, said in that and that dealt Act, Corporation supra. ness In in repealed by it.’ It is former laws were this, compiler stances as not author the is that codified evident thаt the committee to ized act a court determine the to as to had doubts that statute in 1893 repealed. extent to which an is act See it is in think being effect. We said act 12 A.L.R.2d Under such circum 423. by repealed sub that act was clear said only stances the course of action for the ”* stitution, compiler include conflicting is to the sec question the tions statutes until that all Section conclusion of said Our whether re such statutes have been the except pаrt pertaining to that pealed by implication or is substitution fee, computation repealed the reason, a court. For determined this we adoption of upon the the Busi- substitution that the rule Atchley believe v. Board Corporation Act is the ness confirmed Examiners, supra, appli of Barber not is O.S.A., Introductory note, 18 Draftman’s present case, to cable the that rule the Act, Corporation page 272: at Business Burns, parte in announced Ex 88 Okl.Cr. “This, title, suggested by is its a P.2d 202 dеterminative: purports It act. business conflicting “Where two and incon- complete in content and modern to be are carried into sistent statutes the up- scope, superseding enlarging in law, passed, the'one codified last which to former laws relative business legislative is the later declaration of not, It is in corporations prevail.” will, should content, form or an amendment either plaintiff’s completely is a new In view of the fact that a revision. cаuse specifically of action founded on the act.” to annual penalty execute and deliver cm said for failure report re- appeal, consider in the manner and at the time not, we will quired provisions provisions being penalty applicability my opinion, the 1947 Act. In 1.238 and 1.239. O.S.1951 §§ to be in an annual information filed Affirmed. report not by the Act was as, the affi- WELCH, nor did it relate to same DAVISON, J., C. paid as davit to be filed the fee to be JJ., concur. HALLEY, JACKSON, provided by Ill, supra. BERRY, JJ„ IRWIN, JOHNSON, аnd impose penalty for not 1.236did dissent. pay penalty was failure to fees but imposed for failure execute and deliver IRWIN, (dissenting). Justice (d), (c), annual Subsections penalty provisions of The (e) (f), section relate of the same O.S. are Title 18 Corporation Act of 1947 file cancellation procedure for failure 1.247, 1.204, 1.239 and 1951 §§ not men- report the annual but even does 1.236 O.S.Supp.1947 1.236. fees; payment tion or make reference to opinion, my these 1949. whereas, imposed implication the repeal by did affi- only failing to file the 111(b) for not penalty provisions of Title O.S.1951 § davit, pay but also for failure to 111(b). provided. as therein alia, pre- inter A corporation could fail to equal one-tenth (a) scribes pay fail to in § the maximum amount of percent only against recourse in Okla- invested corporation’s authority to would revocation year in the fiscal homa shall be business; whereas, transact corporation qualifies do busi- pre- 111(b), does under § Oklahoma; succeeding (b) for each ness vent an action for the collection *7 year every shall file fiscal corporation’s penalty au- though even the the maximum affidavit and therein show re- thority be to transact business could had that the amount of penalty be scinded, provides it the as year in for for the invested Attorney in brought recovered a suit the filed; (c) if the affidavit is cor- which the General in the name poratiоn’s maximum has increased Empire Oil Neither the trial court nor previously which a that fee has over Corporation on section rely as paid, then a of one-tenth of been part implica- repealed by of the act which increase; (d) percent the be shall provisions 111(b), penalty tion the of Sec. corporation fails to file the affidavit if the 1.204, 1.239, but relied on sections and fee, pay the additional the of- to fails upon by Empire Those and 1.247. relied penalty to a fending the be trial court will now considered. day per for each in of default. $25 b, Title 18 O.S.1951 sub-section determining penalty pro- whether the provide: (6) paragraphs (7) supra, 111(b), visions were re- of pealed by implication by the corporation may enactment A domesticated of “b. Corporation a com- be ousted from this Sec- parison penalty provisions of retary enacted of State certificate of penalty provisions be made should Domestication revoked and cancelled: majority opinion repealed holds were by implication. Upon “(6) the failure of the cor- 1.236, supra, any poration report which to file in this State days provided penalty thirty in (30) period of within after the $25.00
1 n prescribes filing of 1.239 for the Act in this prescribed penalty any re- monetary failure file report; “ ** * port, paper document or corpo- failure Upon “(7) required by form and within time any pay days to thirty (30) ration for Act”, being Corporation Act the Business pre- changes taxes, or fees, franchise imposed monetary penalty of 1947. The State.” by law of this scribed immediately upon effective failure becomes to file reports own- statements 163, used 204, p. Sec. S.L. consolidation, ership land, merger changes the word charges instead word dissolve, of, intent change registered above. (7) prescribed officeor agent, etc., in the act 1947. It is in addition to re- (6), paragraph noted that to be 1.204, supra, of Sec. which * * * re- any “failure lates to thirty days becomes effective after such * * * period prescribed port after relate failure. Since this does * * * whereas, paragraph ”; Act in this law”, penalties prescribed by to “other * * * pay “to (7) relates to would include changes prescribed tax, fees, franchise supra, it Sec. would * * un- By virtue by law implication repeal by conflict with or (6) re- paragraph phraseology, ambiguous 111(b), supra. pre- report as to file “failure” lates to Act of by the Business scribed 1.247, provides “failure (7) relates paragraph State, performed for services * * * prescribed [as] office, expense his mailing, alia, include, inter by law” which would filing in the county clerk, officeof the by Sec. charges as fees charge and collect certain “in addi- fees tax the franchise provided by Tax Com- the Oklahoma filed with O.S.1951.” These fees relate to articles, mission. or amended incorpora- articles of
tion, reports and other documents to be however, penalty pro- if the Assuming, filed and for issuing copy- certificates and any report pre- ing reports vision for failure to file documents and for receiv- ing process, service of above, whereas under appli- by paragraph (6) scribed *8 Ill, supra, the fees are for authorized required in Sec. cable to the affidavit as stock and an for additional fee an increase supra, penalty provision could stock. days imposed thirty after a not be until file had refused to affidavit its penalty involved and the is ouster or can- A penalty imposed is Sec. 1.247 definitely cellation of its is certificate. specifically and it states “in addition monetary penalty monetary not a as no provided by fees of Title penalty penalty is mentioned. The theory $25 O.S.1951.” no do I Under find this provided by definitеly Sec. be in section to conflict with Ill, Sec. monetary penalty clearly effective the first legis- indicates that this section after a does not file its provision affidavit intended that the fee lature pay penalty provision Ill, supra, or fee. The Also, continued Sec. force. 111(b), supra, applicable Sec. cou'ldbe penalties action is the collection of be enforced without file supra, being Sec. an affidavit for failure and not for applicable if a reports filed of fees as the collection paid thirty within the days. 1.247. provisions of penalty reviewing In STRICKLAND, Error, H.W. Plaintiff in Corporation Act, and Sec. the 1947Business enact O.S.1951, other 111 of HETHERINGTON, Clark Defendant to file penalty imposing
ments in Error. time within pay fees due taxes or No. 38433. law, my there required opinion, Supreme Court of Oklahoma. By legislative harmony. enactment May 1960. Law Tax Franchise tax franchise complemented former imposed, penalties were acts under which corporations legislature provided that if as re pay taxes reports
failed to file imposed. ad
quired, a penalty would and the tax
dition to the collection
penalty Tax Commission the Oklahoma corporation. suspend
empowered fail provisions for penalty
There are also fees due pay reports file taxes
ure to law, required by other
within time tax, special
things, gasoline excise such as: production tax, tax, automobile gross
fuel tax, tax, beverage tax, estate
license income taxes,
tax, etc. In absence ad valorem levy
specific in the acts penalty pro tax,
ing tax if
vides a delinquent. I cannot it becomes before did legislature intended or
conclude that the enactment corporations from a 1947, relieve
Act of
monetary failure to necessary
required affidavit or fees. opinion leg that the
I am therefore by enactment of the Business Cor
islature repeal by in 1947 did not im
poration Act 111(b).
plication the *9 foregoing respectfully I
For the reasons opinion majority promulgated
dissent to the my However,
by majority of associates. the rule announced
under City #197,
County Queen Lodge 195 Okl. 340; 156 P.2d Texas Co. v. Okla Commission,
homa Tax 207 Okl. 249 P. of this a decision court overruling
2d administrative construction of our laws given prospective only.
should be effect