Alaska Mines & Minerals, Inc. v. Alaska Indus. Bd.

• Decision Date: 01 July 1960
• Docket Number: No. 10,10
• Citation: 354 P.2d 376
• Parties: ALASKA MINES AND MINERALS, INCORPORATED, formerly known as DeCoursey Mountain Mining Company, a corporation, Appellant, v. ALASKA INDUSTRIAL BOARD; Henry A. Benson, J. Gerald Williams and Ross Duncan, as Members of the Alaska Industrial Board; and Robert J. Annis, as Administrator of the Estate of Chris C. Dahl, Deceased, Appellees.
• Court: Alaska Supreme Court

Page 376

354 P.2d 376

ALASKA MINES AND MINERALS, INCORPORATED, formerly known as DeCoursey Mountain Mining Company, a corporation, Appellant, v. ALASKA INDUSTRIAL BOARD; Henry A. Benson, J. Gerald Williams and Ross Duncan, as Members of the Alaska Industrial Board and Robert J. Annis, as Administrator of the Estate of Chris C. Dahl, Deceased, Appellees.

No. 10.

Supreme Court of Alaska.

July 1, 1960.

Arthur D. Talbot, Anchorage, for appellant.

F. O. Eastaugh, Juneau, Stanley J. McCutcheon, Anchorage, Ralph E. Moody, Atty. Gen., for appellee.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

DIMOND, Associate Justice.

The principal question to be decided is whether the filing of a complaint for an injunction in the District Court ¹ to set aside and enjoin the enforcement of an award of the Alaska Industrial Board is the commencement of a 'suit, action or proceeding', within the meaning of that portion of the Alaska Business Corporation Act which reads as follows:

'No corporation, foreign or domestic, shall be permitted to commence or maintain any suit, action or proceeding in any court in Alaska without alleging and proving that it has paid its annual corporation tax last due and has filed its annual report for the last calendar or fiscal year for which such report became due for filing. * * *' ²

On December 30, 1958, the Alaska Industrial Board awarded compensation to the appellee, Robert J. Annis. Within thirty days thereafter [on January 22, 1959] the appellant, pursuant to the provisions of Section 43-3-22, A.C.L.A.1949, ³ filed in the District Court a complaint for mandatory injunction, seeking to have the award set aside and to have Annis and the Board enjoined from attempting to enforce the award. The verified complaint alleged that appellant was a domestic corporation and that it had paid its corporation taxes last due under the laws of Alaska.

Appellees moved to dismiss the complaint on February 10. ⁴ The chief ground for the motion was that appellant had not in fact paid its annual corporation tax, as alleged in the complaint, and therefore that it was not permitted to commence or maintain the action by reason of the prohibition contained in the Alaska Business Corporation Act. ⁵

In response to this motion, appellant insisted that the tax had been paid. A statement to this effect was contained in appellant's amended complaint ⁶ and in an affidavit of the Assistant Secretary-Treasurer of the corporation--both of which were filed in the District Court on February 25. It was eventually established, however, that the corporate tax in question, which was due on or before January 1, 1959, was not paid until March 18 of that year.

On June 5 the District Court entered its order dismissing appellant's complaint, with prejudice, assigning as the reason for this action----

'* * * that plaintiff corporation did not pay its 1959 Alaska Corporation Tax until March 18, 1959, the same being due on January 1, 1959, with the result that the plaintiff is not entitled to maintain this action. * * *'

It is that order from which this appeal has been taken.

Under the workmen's compensation statute in effect at the time that the complaint was filed in the court below, appellant was afforded the right to test the lawfulness of the Industrial Board's decision by bringing injunction proceedings against it to suspend or set aside the award. But there is a time limitation in the statute: the proceedings in court must be brought 'within thirty days from the date of such award.' ⁷ If they are not, then the right to have judicial review is lost. ⁸ The basic question, then, is whether appellant instituted the proceedings in this case within the statutory period of limitation.

Under Alaska law a corporation, foreign or domestic, is not permitted to 'commence or maintain any suit, action or proceeding in any court in Alaska without alleging and proving that it has paid its annual corporation tax last due * * *' ⁹ This must mean that if the corporation cannot truthfully allege that the tax has been paid, the prohibition will apply. It would be unreasonable to construe the statute as allowing an untrue averment to suffice; for as a matter of justice one should not be able to escape the sanction of the statute by making a false statement. ¹⁰ Therefore, the right to seek judicial review of an Industrial Board award is conditioned--so far as a corporation is concerned--upon the fact that the corporate tax has been paid in accordance with law.

The word 'permit' means 'to allow the act * * * of, to authorize.' ¹¹ If an act is not permitted, it is not allowed. The doing of the act is forbidden or prohibited.

Appellant filed its complaint with the court within thirty days from the date of the award. But at that time it was unable to truthfully allege that it had paid its annual corporation tax last due, because the tax was not paid until March 18. Therefore, on January 22 appellant was prohibited by law from commencing or maintaining the proceeding to set aside the Industrial Board's award.

The attempt to commence a proceeding in court, when the law provides that this may not be done, logically is the commencement of no proceeding at all. An act which is prohibited can have no legal effect merely because it is done. The filing of the complaint for injunctive relief could not have the legal effect urged by appellant until the prohibition was removed on March 18, the day that the tax was paid. By that time, however, it was too late. More than 30 days had elapsed since the date of the Board's decision and award, and thus the statutory period of limitation for bringing such a proceeding had expired.

The running of the time within which injunction proceedings might have been instituted was not suspended between the date that appellant filed its complaint and the date that it paid its tax. This is not unlike a situation where a statute forbids the commencement of an action prior to a certain time and not later than another time. If the action is filed prematurely, the expiration of the first period does not automatically revive and give life to the action. Unless a new action is commenced within the applicable period of limitation, the right is barred. ¹² Similarly, compliance with the law after a statute of limitation has run does not serve to validate from its inception an action which had no validity or legal effect at the time it was commenced. ¹³

The language of the statute is unambiguous. It clearly expresses the legislative intent. This being so, it must be enforced as it reads, and should not be modified or extended by judicial construction so as to enable appellant to avoid the consequences of non-compliance with its express terms.

Appellant tries to escape the necessary results of its neglect by asserting that it was a defendant in the District Court, and therefore that the statutory prohibition is inapplicable. If appellant were a defendant in an action commenced in a court, its conclusion would be sound; for the statute is aimed only at a corporation that wishes to 'commence or maintain' a proceeding, and not at one which defends against an action instituted by another.

Appellant was a defendant when the matter was before the Alaska Industrial Board, and the proceeding which it attempted to bring in the District Court may have been in the nature of an appeal rather than an independent action. ¹⁴ But this is of no help to appellant. The statute forbids a corporation that has not paid its tax to 'commence * * * any * * * proceeding in any court * * *.' The word 'commence' means 'to enter upon; to begin; initiate; to perform the first act of, as, to commence a law suit; to originate; to start; to begin.' ¹⁵ To commence a proceeding in a court is to demand something by the institution of process in a court of justice. ¹⁶ This was not done until appellant filed its complaint for injunctive relief in accordance with Section 43-3-22. Prior to that time the 'proceeding' was before the Board, which is not a court. The statutory prohibition did not apply there. The Alaska Business Corporation Act refers only to a 'court', and not to a quasi-judicial or administrative agency of the government.

Thus, the attempt by appellant to seek relief from the court--whether or not in the nature of an appeal--is in fact a 'suit, action or proceeding', within the meaning of the statute. It is 'commenced', i. e., begun or originated, by filing a complaint with the court. Process is issued and served precisely as in the instance of any other suit or action. It is a proceeding which is separate and apart from the proceeding resulting from the filing of the original claim with the Industrial Board ¹⁷; because it is one of judicial review of the action of an administrative tribunal, is brought in a different forum, and is withdrawn from the Board. Therefore, the pertinent section of the Corporation Act does apply here, and appellant was prohibited from commencing the proceeding until its corporate tax had been paid.

The District Court was correct in dismissing appellant's complaint, and its action in this respect is affirmed.

NESBETT, C. J., concurs.

AREND, Justice (dissenting).

Appellee Annis contends, and in this the Court has sustained him, that the appellant by untrue averments contained in both its complaint and amended complaint to the effect that it had paid its annual corporation tax should not be allowed to commence or maintain an action or proceeding by way of mandatory injunction to set aside the award of the Alaska Industrial Board, especially as in this case where the tax was not paid until after expiration of the applicable period of limitation in which such action or proceeding may be instituted.

I cannot subscribe to this line of reasoning for it is based upon the faulty premise that the proceeding for relief from an unfavorable award by the Board is in the nature of an original action in the District Court. A careful...