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in the act making it unlawful to transact business during the period between the time when a license should be procured and the time which is designated as the beginning of the delinquency in the payment of the tax. Furthermore, if the act was intended to reverse the settled rule in the State theretofore existing, it would seem that the intent should have been manifested in unmistakable language, and that therefore a court would deem the prior rule to be still existent; this is the writer's view of the matter. Colorado.
In this State, the statutes provide that every foreign corporation now or hereafter doing business in the State shall file a copy of its charter with the Secretary of State. Sec. 916 Courtright's Stat., 1914. And it is further provided that foreign corporations before they are authorized or permitted to do business within the State must file a certificate with the Secretary of State, and with the Recorder of Deeds in the county in which the business is to be carried on, designating its principal place of business in the State and its agent for service of process. Sec. 916. Upon filing the articles of incorporation in the office of the Secretary of State a fee is payable, based upon the amount of capital stock represented by the amount of property located and business transacted in the State. Sec. 904, id. The same section provides that no foreign corporation "shall have or exercise any corporate powers or hold, or acquire, any real or personal property, franchises, rights or privileges, or be permitted to do any business or prosecute or defend any suit in this State until the said fee shall have been paid."
Sec. 910 provides further: “No corporation, joint stock company or association, incorporated by or under any general or special law of this State, or by or under any general or special law of any foreign State or kingdom or of any State or territory of the United States, beyond the limits of this statute, shall exercise any corporate powers or acquire or hold any real or personal property, or any franchise, rights or privileges, or do any business or prosecute or defend in any suit in this State until it shall have received from the Secretary of this State a certificate setting forth that full pay. ment has been made by such corporation, joint stock company or asso
I law of special lapany or as
ciation, of all fees and taxes prescribed by law to be paid to the Secretary of State...,"6
Under these provisions the courts of the State are denied to corporations who default in paying the fees prescribed to be paid to the secretary
No money penalties are prescribed for failure to qualify, but the officers, agents and stockholders are personally liable on contracts made within the State during the period. of default. Sec. 919 id. The contracts are not void. Insurance Co. v. Allis Co., 11 Colo. App. 264, 269; Fritts v. Palmer, 132 U. S. 282. These cases were decided before the enactment of the provisions referred to above relating to the inability of corporations to maintain suits if in default in paying fees, but it would seem that these provisions did not change the law to the extent of invalidating contracts.? Connecticut.
In this State, it is provided as follows: “Every officer of a foreign corporation transacting business in this State which fails to comply with the requirements of sections 82 and 83 of this act, and every person who transacts business in this State as the agent of such delinquent corporation, shall be fined not more than one thousand dollars; but such failure shall not affect the validity of any contract by or with such corporation. The Secretary of the State shall report such failure to the Attorney-General, who shall thereupon institute proceedings against such corporation to restrain its further prosecution of business in this State." Public Acts of 1903, Ch. - 194, Sec. 85.
Inasmuch as there is an express provision that such contracts are valid, no discussion is necessary. Delaware.
The Constitution of Delaware contains a prohibition against the doing of business by a foreign corporation unless it has an authorized agent in the State upon whom process may be served. Art. IX, Sec. 5. The Foreign Corporation Statute contains an express prohibition against the
: 6 Secs. 5601 and 5603A, Court. right's Stat., provide for forfeiture of franchise to do business in case of failure to pay the annual license tax.
7 These provisions are referred to in Butler Bros. Shoe Co. v. U. S. Rubber Co., 156 U. S. 1, and held inapplicable to interstate commerce.
doing of business in the State without filing proper instruments and provides penalties for violation of the law. Sec. 100 and Secs. 2101a to 2101f, Rev. Code, 1915 (Art. 11, Corp. Law.) There is no express provision with respect to the validity of contracts or the maintenance of suits upon them by non-complying corporations.
In Model Heating Co. v. Magarity, 25 Del. 459, the Supreme Court of Delaware for the first time considered the enforceability of contracts in the State courts which were made by unqualified foreign corporations. The plaintiff here was a Pennsylvania corporation; the defendant retained all the benefits of the contract but pleaded that the plaintiff could not sue upon it because it had not complied with the Delaware statute. After an elaborate review of the authorities on the question, the Court held that the consitutional provision was not self-executing and that its main purpose, as well as that of the statutes, was to make foreign corporations subject to process from the State courts and not to make their contracts void; and that as the defendant retained the benefits of the contract, it could be enforced against him. Florida.
It was formerly provided in Florida that a contract entered into by a foreign corporation affecting its liability
8 See Magarity case discussed in Strout v. Howell, 27 Del. 31.
The attention of the court in the Magarity case was apparently not called to the retaliatory provision contained in Section 110, Revised Code, 1915 (Sec. 73, Franchise Tax Law).
It is to be noted that the corporation plaintiff in the Magarity case was a Pennsylvania corporation and that at the time the Magarity suit was begun in the court below, in the June Term of 1908, the Pennsylvania statute then in force was interpreted to render a contract by a non-complying foreign corpora tion in Pennsylvania wholly void. See infra, under Pennsylvania.
The courts of New Jersey, in considering an identical retaliatory provision of the New Jersey Corporation Act (Sec. 101) held that a Pennsylvania corporation could maintain no suit in the New Jersey courts on a contract entered into before qualifying under the New Jersey Law. Wolf v. Lancaster, 70 N. J. L. 201, see infra, under New Jersey.
Before the decision of the Magarity case, which was three years at ter the institution of the suit in the lower court, the Pennsylvania Act was repealed and a new act passed expressly providing that failure to qualify should not affect the valid. ity of a contract. Laws of 1911, p.
or relating to property within the State before it shall have complied with the Foreign Corporation Act should be void. Ch. 5717 of the Laws of Florida, Sec. 4 (Sec. 2682d Comp. Laws, 1914). This statute was given effect in Ulmer v. First Natl. Bank, 61 Fla. 460.' The last legislature, however, amended the above provision to read as follows:
“Section 4. That the failure of any such foreign corporation to com. ply with the provisions of this act shall not affect the validity of any contract with such foreign corporation, but no action shall be maintained or recovery had in any of the courts of this State by any such corporation, or its successors or assigns, so long as such foreign corporation fails to comply with the provisions of this Act.” Laws of 1915, Ch. 6876.
Under the present provision, therefore, failure to comply with the law merely suspends the right to maintain an action in the courts of the State; and, as held by the Supreme Court of Maryland (see infra), under a similar provision, the corporation could qualify any time before the trial of an action. It would also follow that, as in the case of the New York statute hereinafter referred to, a suit could be maintained in the Federal courts, even though the corporation could not sue in the State courts. Georgia.
This State has no statutory provisions with respect to the obtaining of authority to do business by foreign corporations. · Annual fees are required, however, to be paid by foreign corporations doing business in the State, just as domestic corporations, but there are no provisions affecting contract rights in case of failure to pay the fees.
710. But it would seem that if the while a contract entered into by an Delaware Court had considered the unqualified corporation was void, effect of the retaliatory provision yet if the corporation complied subabove noted, it would have retal- sequently, the parties to the coniated against a Pennsylvania cor- tract could by their actions in reporation on the basis of the Penn spect to said contract, adopt it as sylvania law as it existed at the expressing their obligations. See time of the institution of the cause under Alabama, supra. A petition in the lower court.
for a writ of certiorari has been 9 Under this statute, it was held made to the Supreme Court of the in Turner Const. Co. v. Union Ter- United States to review this case. minal Co., 229 Fed. Rep. 702, that,
The statutes of this State provide as follows: "No contract or agreement made in the name of, or for the use or ben. efit of, such corporation prior to the making of such filings, as herein provided, can be sued upon or enforced in any court of this State by such corporation. Such corporation cannot take or hold title to any realty within this State prior to making such filings, and any pretended deed or conveyance of real estate to such corporation prior to such filings shall be absolutely null and void." Sec. 2792, Rev. Code, as amended by Ch. 124, Laws of 1915.
The same section also provides for a personal liability on contracts entered into by the officers, agents or representatives making the same in the name of the foreign corporation; and denies the benefit of the statute of limitations to corporations in default. The courts of Idaho give full effect to this provision and deny the right of foreign corporations to sue on contracts entered into before complying with the law, unless the question is waived. Katz v. Herrick, 12 Ida. 1; Valley Lumber Co. v. Driessel, 13 Ida. 662; same v. Nickerson, 13 Ida. 682; Tarr v. Western Loan & S. Co., 15 Ida. 741; Morris-Roberts Co. v. Mariner, 24 Ida. 788. See also Junction Placer Mining Co. v. Reed, 153 Pac. 564. The effect of the Idaho statute, however, is not to make such contracts void but merely to make them unenforceable in the courts of Idaho. They may therefore be enforced in the courts of other jurisdictions, including the Federal courts. Colby v. Cleaver, 169 Fed. Rep. 206; Continental, etc., Bank v. Corey Brothers Construction Co., 208 Fed. Rep. 976. As will be hereinafter noted, this decision is in accord with those based upon a construction of the New York statute. Illinois.
The statutes of Illinois provide a penalty for doing business without complying with the provisions of the statute, and also as follows:
"In addition to such penalty, if after this act shall take effect, any foreign corporation shall fail to comply herewith, no suit may be maintained, either at law or in equity, upon any claim, legal or equitable, whether arising out of contract or tort in any court in this State." Sec.