99 P. 1049 | Idaho | 1909
Lead Opinion
This action was commenced by the plaintiffs for the purpose of obtaining a decree canceling a certain
On October 10, 1896, the defendant filed in the office of the clerk of the district court , of Ada county, and also with the secretary of state of the state of Idaho, a designation in writing of Ada county as the county of its principal place of business in this state, and a designation of a resident of Ada county as its statutory agent upon whom process might be served. On the same day the defendant filed in the office of the secretary of state a copy of its articles of incorporation, certified to by the secretary of state of the territory of Utah. These constitute the only acts performed by the corporation in compliance with the laws of this state prior to entering into this contract. Subsequent to the execution of the contract, the company did certain acts in compliance with the statute as follows: On December 16, 1904, it filed with the recorder of Ada county a certified copy of its articles of incorporation, and on the same date filed a duly certified copy of its articles of incorporation with the secretary of state. Thereafter, and
It will be seen, therefore, that at the time of entering into this contract on March 11, 1904, the corporation had failed to comply with the statutes of this state in the following respects: First, it had not filed with the recorder of Ada county, or with the recorder of any other county of this state, a copy of its articles of incorporation duly certified to by the secretary of state of the state of Utah, that being the state in which the corporation was organized and had its legal existence. Second, it had failed to have the copy of its articles of incorporation that was on file in the office of the secretary of state of the state of Idaho duly certified by the recorder of Ada county or by the recorder of any other county of the state.
The statute, sec. 2653, Rev. Stat., as amended by act of March 10, 1903 (Sess. Laws 1903, p. 49), provided that every foreign corporation doing business in this state must, before doing any business in this state, file with the county recorder of the county in which is designated its principal place of business a copy of its articles of incorporation duly certified to by the secretary of state of the state in which such corporation was organized, and a copy of such articles of incorporation duly certified by such county recorder, with the secretary of state, paying to the latter the same fees as are provided by law to be paid for filing original articles of incorporation, and must designate some person in the county in which the principal place of -business of such corporation is conducted, upon whom process issued by authority of or under any law of this state may be served, and must file such designation in the office of the secretary of state and in the
Respondent has placed a great deal of reliance on the case of Kiesel v. Bybee, 14 Ida. 670, 93 Pac. 765, 15 L. R. A., N. S., 299, wherein this court held that a “foreign corporation that had complied with the law prior to its amendment will be held to have substantially complied with the amendment law if, subsequent to the passage of the act of 1903, it performs all the additional acts and things required by the latter statute that were not required by sec. 2653, Rev. Stat., prior to the amendment.” We still adhere to the doctrine there announced, and if it were true in this case that, prior to the amendment of 1903 the respondent had, in fact, filed certified copies of its articles of incorporation with the county recorder and the secretary of state as subsequently required by the amendatory act, we would have no hesitancy in holding that it had substantially complied with the statute and was entitled to maintain its action. That was not done in this case, however, and we are forced to hold that defendant is not in a position to maintain its action on this contract.
It is further argued by respondent that since this corporation -had complied with the statute as it existed prior to the act of 1903, and was at that time lawfully doing business within the state, it was not within the power of the legislature to subsequently add additional requirements in order for it to continue to do business. It is insisted that under the provisions of sec. 2653, Rev. Stat. of 1887, it was provided that upon a foreign corporation complying with the terms of that statute, it should have “all the rights and privileges of like domestic corporations.” In support of this contention coun
It is further contended by the respondent that since it affirmatively appears in this case that appellants had paid
The making of these interest payments, or any other payments on the contract, could not amount to an estoppel. The fact that the appellants made payments on the contract did not place the respondent in any worse or more unfavorable position than it was in before the making of the payments. On the contrary, the making of the payments inured to the benefit of the corporation and placed it in a better position than it was in prior thereto. The making of such payments did not cause the corporation to change its conduct toward appellants or assume any course of conduct prejudicial to its interests.
The judgment in this case must be reversed, upon the grounds that the respondent failed to establish that at the time of entering into this contract it had substantially complied with the statute governing foreign corporations doing business in this state. In reversing this judgment it is necessary for us to make some observations as to the condition of the pleadings in this action. In the first place, the appellants filed their complaint praying for a cancellation of the mortgage on the ground that it was void because of the uoncompliance of the defendant corporation with the statute.That kind of action cannot be maintained by the appellants. They cannot be heard to come into a court of equity admitting the receipt of the money and the indebtedness and asking for a cancellation of the mortgage merely on account of the noncompliance by the corporation with the foreign corporation statutes of this state. Those who seek equity must first do equity. Besides, this court has held in at least two cases that such contracts are not absolutely void, but that the corporation making such contracts is left without a remedy. (Katz v. Herrick, 12 Ida. 1, 86 Pac. 873; War Eagle Con. Min. Co. v. Dickie, 14 Ida. 534, 94 Pac. 1034.) The appellants’ complaint praying for a cancellation of the mortgage should be dismissed. On the other hand, appellants had a perfect right
The judgment is reversed, with direction that if the respondent, cross-complainant in the court below, desires a new trial, it b„e granted, and appellants’ complaint for cancellation of the mortgage will be dismissed. Costs awarded in favor of appellants.
Rehearing
ON PETITION FOR REHEARING.
A petition for a rehearing has been filed in this ease, and presents one question which we deem worthy
There is no complaint but that the bill was regularly passed in the Senate. The objections made relate to the course of the bill in the House. The legislative journal of the House shows that House Bill 45 was introduced by Pyke on January 22, 1903, and on that day was read the first time in full. On January 23d House Bill 45 was read the second time in full and referred to the printing committee. On January 26th the printing committee reported that the bill had been printed and the report was adopted and the bill referred to the committee on railroads and corporations. On February 11th the committee on railroads and corporations reported the bill to the House with recommendation that it pass; and on the same day motion was made that the rules of the House be suspended and the provisions of sec. 15, art. Ill of the constitution, requiring the reading of bills on three several days, be dispensed with, and that the amendments to House Bill 45 be read first and second time and ordered printed. This motion prevailed and it was so ordered. On February 12th the committee on printing reported that the amendments to House Bill 45 had been printed. On the same day House Bill 45 with amendments was referred to the engrossing committee and ordered engrossed. On February 13th House Bill 45 was reported correctly engrossed. On February 19th House Bill 45 was read third time “in full” and placed on final passage and upon roll-call passed. The record of this
From this it clearly appears that the bill had a first and second reading before the amendments were proposed; that the provision of the constitution, as to the first and second reading of the amendments on three several days, was suspended. This was equivalent to the first and second reading of the amendments on different days, providing, of course, the amendments were read upon the day of suspension.
We think the record sufficiently indicates that the amendments had their first and second reading on the same day, to wit, the day the provision of the constitution was suspended. If the bill before amendment was read first and second time on different days and the amendments were read upon different days, or the provisions of the constitution with reference to such reading were suspended, and both readings occurred upon the same day and the amendments were adopted, then up to that time the constitution would seem to have been complied with.
Sec. 15, art. Ill of the constitution, provides:
“No law shall be passed except by bill, nor shall any bill be put upon its final passage until the same, with the amendments thereto, shall have been printed for the use of the members; nor shall any bill become a law unless the same shall have been read on three several days in each house previous to the final vote thereon: Provided, In case of urgency, two-thirds of the house where such bill may be pending may, upon a vote of the yeas and nays, dispense with this provision. On the final passage of all bills they shall be read at length, section by section, and the vote shall be by yeas and nays*754 upon each bill separately, and shall be entered upon the journal.”
If, under the provisions of this section of the constitution, the reading of a bill on three several days may be dispensed with upon a vote of two-thirds of the House where the bill is pending, we can see no reason why the reading of amendments on three several days may not also be suspended; and if the first and second reading of a bill may take place on the same day by a vote suspending the provisions of the constitution, the same is certainly true of amendments to the bill. If this construction be correct, then it clearly appears from the record in this ease that the bill and all amendments thereto were read on separate days or the provisions of the constitution, with reference to such readings, suspended, and that the bill and amendments pursued the course required by the constitution up to the time the bill was engrossed. The engrossment included the bill with the amendments and after engrossment the bill was read a third time “in full” and passed by a yea and nay vote which was entered upon the journal.
It is, however, argued by counsel for respondent that the record, read a third time ‘ ‘ in full, ’ ’ is not equivalent to reading the bill “at length, section by section.” We are unable, however, to see any substantial difference in the record with reference to the reading of this bill and the requirements of the constitution. If the bill was read in full, it must have been read at length, section by section. “Read in full” means to read from the beginning to the end without abridgment or omission; if so, the bill must have been read section by section: Standard Dictionary, p. 731. While it is better in recording the history of a bill in the legislature to follow the language of the constitution, yet where language is used which in its common acceptation means the same thing, it indicates a substantial compliance with the constitutional provisions. So, in this case we are clearly of the opinion that the amendment to sec. 2653, Rev. Stat., approved March 10, 1903, was adopted in accordance with the provisions of the
There are some other questions argued in the petition for rehearing which in our judgment have been fully and carefully considered in the original -opinion. After examining the record in this ease again, we are satisfied that the original opinion is correct and the judgment must be reversed.
