Hirschfeld v. McCullagh

• Decision Date: 01 April 1913
• Citation: 130 P. 1131,64 Or. 502
• Parties: HIRSCHFELD v. McCULLAGH.
• Court: Oregon Supreme Court

130 P. 1131

64 Or. 502

HIRSCHFELD v. McCULLAGH.

Supreme Court of Oregon

April 1, 1913

On rehearing. Former opinion affirmed, and judgment below reversed.

For former opinion, see 127 P. 541.

McBRIDE, C.J.

The petition for rehearing challenges the constitutionality of section 6707, L. O.L., being section 5, p. 43, Session Laws of 1903, on the ground that it imposes a tax upon the whole capital stock of a foreign corporation, irrespective of whether it is employed in this state. That the imposition of such tax is unconstitutional is clearly held in the following cases: W.U. Telegraph Co. v. Kansas, 216 U.S. 1, 30 Sup.Ct. 190, 54 L.Ed. 355; Pullman Co. v. Kansas, 216 U.S. 56, 30 Sup.Ct. 232, 54 L.Ed. 378; Ludwig v W.U.T. Co., 216 U.S. 146, 30 Sup.Ct. 280, 54 L.Ed. 423; Atchison, Topeka & Santa Fé R. Co. v. O'Connor, 223 U.S. 280, 32 Sup.Ct. 216, 56 L.Ed. 436; Mulford Co v. Curry, 163 Cal. 276, 125 P. 236.

Whatever might be our own opinion, the contention presents a federal question in regard to which the holding of the Supreme Court is controlling; and we therefore acquiesce in the conclusion reached in the cases above cited, and hold that, in so far as the section in question requires the payment of a license fee based upon the whole amount of the capital stock of a foreign corporation, whether employed within the state or not, it is void. But it does not follow that because this part of the section is void that the whole section is void. Its provisions are not so interdependent that other requirements cannot be separated from the single invalid provision. A corporation is required to file with the Secretary of State a statement, showing, among other things the location of the principal office, the names and post office addresses of its president, secretary, treasurer managing agent, and attorney in fact in this state; and a failure or refusal to file such report or to pay the license fee subjects it to a fine of $100. It will be noticed that this penalty may be incurred (1) by failure to file the report; or (2) by failure to pay the license fee. If the corporation pays the license fee, but fails to make a report complying with the provisions of the section, it is amenable to the prescribed penalty; or, if it makes the report, but fails to pay the fee, it is also held liable. The fact that the requirement to pay the license fee is void because of a conflict with the federal Constitution does not render void other requirements not so in conflict.

No penalty is expressly denounced by the succeeding sections for failure to appoint a resident attorney; and, following the rule announced in Bank of British Columbia v. Page, 6 Or. 431, we would be compelled to hold that a contract made by a corporation before appointing an attorney in...