« AnteriorContinuar »
ent a balance due on the purchase price of a fire-engine sold and delivered to respondent in the year 1890, the suit being based on a note in words as follows: “ $1250.
Feb. 20, 1891. "Two years after date, we promise to pay to the order of La France Fire Engine Co. twelve hundred and fifty dollars, with interest thereon at 8 per cent per annum from date until paid, at First National Bank, Mt. Vernon, Wash.
“The Town of Mr. VERNON, “Per H. Clothier, Mayor of Mt. Vernon, Wash. “Attest: Fred G. Pickering, Clerk. (SEAL]"
The defendant demurred to the complaint for the reasons: 1. That the complaint did not state facts sufficient to constitute a cause of action; and 2. That the plaintiff had no legal capacity to sue. The demurrer was sustained by the court upon the second ground, viz., that the plaintiff had no legal capacity to sue, in that the complaint did not show that the appellant had complied with the laws of the state requiring foreign corporations to file certain papers with the secretary of state, as provided for in sections 1524 to 1531 of the General Statutes.
It is conceded that appellant has not complied with the laws of this state requiring foreign corporations to file copies of their charters, etc., but appellant contends that respondent cannot question its right to sue in our courts on contracts made with it in its corporate name after having received the benefit of such contracts.
It is a general proposition, sustained by the weight of authority, that, where a statute imposes a penalty for failure to comply with statutory requirements, the penalty so provided is exclusive of any other; at least, no other penalty will be implied: See Morawetz on Private Corporations, sec. 665, and cases cited. Our statute does not provide that the contracts made by foreign corporations which do not comply with the provisions of the statute shall be void, but fixes a special penalty for such a violation, and, in the absence of a special declaration that such contracts shall be void, especially where a penalty is attached for the violation, the party contracting with such corporation will be estopped 144 from pleading the want of compliance with the statute by the foreign corporation. This rule was announced by this court, after a pretty thorough investigation of the subject, in Dearborn Foundry Co. v. Augustine, 5 Wash. 67, and, as we
are satisfied with the rule announced in that case, we will follow it in this.
It is claimed by the respondent that it was held by this court in Huttig Bros. Mfg. Co. v. Denny Hotel Co., 6 Wash. 122, that a foreign corporation had no right to begin suit without first filing copies of its articles of incorporation, appointing an agent, etc. An investigation of that case shows that this court simply held that the filing of articles of incorporation by a foreign corporation and the appointment of an agent after the filing of a lien notice, and before suit to foreclose the same, was a sufficient compliance with the law relating to foreign corporations doing business within the state. This possibly might be construed as an implication in favor of respondent's theory, but certainly it did not go farther than that, and was not a necessary implication, as the circumstances of that case show.
It is also urged by respondent that no authority existed in respondent, or any of its officers in its behalf, to make such a note. The complaint shows that this was a simple contract between the city of Mt. Vernon, by its accredited agents, and the appellant, and that the note was given as part purchase price of the engine purchased; that it was issued under and by authority of the council of said city of Mt. Vernon; that the appellant is now the owner and holder of said note; that certain payments have been made by the issuance of warrants upon the treasury of said city, and that there is now due and owing the sum of fourteen hundred and sixty dollars, which said claim has been duly presented to the defendant's council, and that the defendant by and through its council repudiated said note and obligation, and refused to pay the same.
145 It seems to us that a plain contract is stated by this complaint; that if it had not been reduced to writing, or had not been in the shape of a note, which it is claimed the respondent had no authority to make, a good and enforceable contract is notwithstanding pleaded; that the claim was presented and refused, and that appellant's only remedy would be to sue the respondent and obtain a judgment. This judgment, of course, is only payable through the medium of a warrant drawn upon the treasury of the city; but, if the council refused to allow the claim when it was presented, we know of no other way by which the city could be compelled to issue the warrant than by obtaining a judgment in favor
of appellant for the amount which was found to be due to it under the contract.
For the reason, then, that the court erred in sustaining the demurrer on the ground that the appellant had no legal capacity to sue, and for the further reason that the complaint stated facts sufficient to constitute a cause of action, the judgment will be reversed, and the cause remanded, with instructions to overrule the demurrer to the complaint.
Hoyt, Scott, and ANDERS, J.J., concur.
MR. JUSTICE STILES dissented on the ground that a municipal corporation has no implied power to issuo promissory notes. That there is only one way that a town treasurer can pay out its corporation money, and that is on warrants signed by the mayor and countersigned by the clerk. No war. rant can be issued until a claim has been presented to, and audited by, the council, and the warrant must specify the purpose for which it is drawn: Wash. Gen. Stats., sec. 675. The note in suit failed to show for what par pose it was drawn, and as it was not a warrant, the city treasurer had no right to pay it. Although it was signed by the mayor and clerk of the city, nothing appeared from the pleadings to show by what pretended authority it had been so signed, nor was it anywhere made to appear that it was the note of the municipal corporation. For these reasons the complaint failed to state a cause of action against the city.
FOREIGN CORPORATIONS — FAILURE TO COMPLY WITH STATOTE — Con. TRACTS-ESTOPPEL.-If the laws of a state provide that foreign corporations may register in the manner therein prescribed, and shall then be entitled to the privileges of domestic corporations, but, if any of them shall do business without such registration, it shall incur a penalty not exceeding five dollars per day for every day during which it carries on business, this is not a prohibition against its doing business, and therefore a contract made by it, though it had not registered, is valid and enforceable: Edison etc. Electric Co. v. Canadian Pac. Nav. Co., 8 Wash. 370; 40 Am. St. Rep. 910, and note.
COUNTY OF SPOKANE V. ALLEN.
(9 WASHINGTON, 229.) OFFICERS—ESTOPPEL TO Deny OFFICIAL CAPACITY.If, under the prort.
sions of law, the office of county attorney is the same as that of prosecuting attorney, one who, though elected as county attorney, assumes the duties of the office of prosecuting attorney, and collects delinquent taxes as such officer, is estopped to deny that he is filling that office in an action against him by the county to recover for taxes 80 collected
by him. OFFICERS—ATTORNEY FEES FOR COLLECTING Taxis-EXTRA COMPENSATION.
Attorney fees paid by delinquent taxpayers upon tax collections made by a county attorney whose duty it is to collect such taxes and whose salary is fixed by law cannot be retained by him a compensation for
duties extrinsic to his office. The retention of such fees by him in extra compensation, and contrary to a constitutional prohibition upon the increase of the compensation of a public officor during his term of
office. OTTICERS-OFFICIAL BONDS- LIABILITY OF SURETIES.-Sureties on an offi.
cial bond are presumed to take notice of the fact that changes may be made concerning the duties of their principal, and when these changes are made in matters of minor importance, which as a whole do not sub. stantially increase their liabilities, they are not exonerated nor released
by such changes. OTTICERS-OFFICIAL BONDS-LIABILITY OF SURETIES. - If an entirely new
and distinct class of duties, not germane to the office, are imposed upon a public officer, his sureties are not liable to answer for the faithful
performance of the added responsibilities. OTTICERS - OFFICIAL BONDS - LIABILITY OF SURETIES FOR ADDITIONAL
DUTIKS IMPOSED ON OFFICER. --If, after a county attorney has been elected, given an official bond, and has assumed the duties of the office, a statute is enacted imposing upon him the new and additional duties of collecting and accounting for delinquent taxes, such duties are not ger. mane to his original office, and the sureties on his official bond are not liable for the nonperformance by him of the new and additional duties thus imposod. Turner, Graves & McKinstry, for the appellants. R. B. Blake and F. T. Post, for the respondent.
280 DUNBAR, C. J. This is an action upon the alleged official bond of appellant, S. G. Allen, as prosecuting attorney of Spokane county, joining the sureties in said bond with their principal as parties defendant.
At the general election held in Spokane county on November 4, 1890, Allen was voted for and declared elected to the office of prosecuting attorney for the county of Spokane. On January 10, 1891, he qualified and gave the bond sued upon, and entered upon the discharge of his official duties. The pertinent condition of the bond was as follows: "If said S. G. Allen shall well and truly perform all the duties required of him by law as prosecuting attorney aforesaid, and shall pay over any and all moneys that may come into his hands as euch, then this obligation shall be void; otherwise of full force and effect.”
231 On February 3, 1891, the legislature passed an act providing that all officers elected as county attorneys at the last general election should be declared to be prosecuting attorneys. Subsequent to the time when appellant executed the bond in question, to wit, on the ninth day of March, 1891, the legislature imposed upon the prosecuting attorneys of the state the duty of collecting delinquent taxes upon real
estate, providing the mariner in which they should prosecute by suit, and providing for attorney's fees in such cases. Allen, in the capacity of prosecuting attorney, during the year 1892, brought many of these actions for the collection of delinquent taxes and retained the attorney's fees provided for by the statutes in such cases, and, upon settlement with the county, refused to account for them, claiming that under the law he was entitled to the same. The agreed statement of facts is much more elaborate, and contains other state ments, but the foregoing is sufficient for the purposes of this opinion.
The disposition we are compelled to make of this case renders it unnecessary to discuss the first technical objection made by the appellant, viz., that the complaint does not state a cause of action, for the reason that it does not appear affirmatively that the delinquent taxes described were taxes collected on real estate instead of personal property. We do not think there is any merit in the contention of appellant that there was no such officer, at the time the bond was given, as prosecuting attorney of the county. Outside of the facts in this case, which show that Allen was elected as prosecuting attorney for Spokane county, and gave his bond as prosecuting attorney for said county, we think, considering the provisions of the statute with relation to the provisions of the constitution, that the office of county attorney is identical with that of prosecuting attorney. We have examined with attention and pleasure the many
cases cited by both appellant and respondent on the question of de jure officers and de facto officers, but in this case the appellant Allen has assumed that the law applied to him or to the office which he held; he performed the duties of the office, and, if we understand his position, seeks to retain the benefits of the application of the law to the office which he assumed. If he is not entitled to the fees and emoluments by reason of the applicability of the law to the office which he held he is not entitled to them at all. These considerations, of course, as we shall hereafter see, do not apply to the sureties, but Allen is estopped from asserting them as a reason for not returning this money to the county.
Nor can we sustain the contention that it was the intention of the legislature that the attorney's fees provided for in the collection of delinquent taxes should be appropriated by the county attorney as compensation for duties extrinsic to