Kephart v. People ex rel. American Sav. Bank

• Decision Date: 19 November 1900
• Parties: KEPHART, State Treasurer, v. PEOPLE ex rel. AMERICAN SAV. BANK.
• Court: Colorado Supreme Court

62 P. 946

28 Colo. 73

KEPHART, State Treasurer, v. PEOPLE ex rel. AMERICAN SAV. BANK.

Supreme Court of Colorado

November 19, 1900

Appeal from district court, Arapahoe county.

Application for mandamus by the people, on the relation of the American Savings Bank, against George W. Kephart, state treasurer. From a judgment in favor of relator, respondent appeals. Reversed.

This was a proceeding in mandamus to compel the state treasurer to pay 13 state warrants issued in the year 1889. There was a separate cause of action on each warrant, but, as in each the allegations of the petition and the alternative writ are the same, the disposition we make of the first count settles all. After the averment in the alternative writ that the warrant was duly drawn by the auditor in payment of the official salary of one of the district judges of the state for the month of June, 1889, its subsequent presentation by the auditor to the treasurer, and the latter's indorsement thereon that there were no funds for its payment, the countersigning of the same by the treasurer, its due transfer to petitioner, and its subsequent presentation to the treasurer for payment, and his refusal to pay the same, the writ thus proceeds: 'That, as the relator is informed and believes, there is now in the hands of the said treasurer of the state of Colorado the sum of eighty thousand dollars and over ($80,000), the same being a part of the income and revenue of the said state in and for the year 1889, and that the same isapplicable for the payment of the said warrant with the interest thereon, and is sufficient therefor; and that it is the duty of the said treasurer to pay the said sum of three hundred thirty-three dollars and thirty-three cents and the interest thereon as aforesaid, to the relator therefrom; but that the respondent, notwithstanding his duty in the premises, refuses to make such payment.' To the writ the respondent below filed what he calls a 'plea in bar,' in which it was averred that petitioner, being a foreign corporation, could not maintain the action, because it had not complied with certain acts of the general assembly, particularly the one of April 13, 1897 (Sess. Laws 1897, p. 157), which, as it is said, are conditions precedent to the right of any foreign corporation to have or exercise any corporate powers or to do any business in this state. The plea was overruled. Respondent then asked leave to answer which request was refused, and thereupon the court, on plaintiff's motion for judgment on the pleadings rendered judgment requiring the treasurer to pay the warrants in question.

David M. Campbell, Atty. Gen., and Calvin E. Reed and Dan B. Carey, Asst. Attys. Gen., for appellant.

Edward Kent and Wm. B. Tebbetts, for appellee.

CAMPBELL C.J. (after stating the facts).

1. Ordinarily, such a request for permission further to plead or answer should be granted; but we cannot say that the discretion of the court in denying the request was, in this instance, abused, for we are not advised what the nature of the answer was, nor does it appear from the record that any showing was made by respondent that properly invoked the discretion.

2. Our statute (Sess. Laws 1897, p. 157) provides, inter alia, that if a foreign corporation, having capital stock divided into shares, fails to pay a prescribed fee to the secretary of state, it shall not 'have or exercise any corporate powers or be permitted to do any business in this state until the said fee shall have been paid.' It is contended that petitioner, being a foreign corporation, even though the particular business of buying these warrants was transacted outside the state, may not maintain this action to compel the treasurer to pay them, because it has not paid the prescribed fee. Similar provisions have been construed by this and other courts. In Miller v. Williams, 27 Colo. 34, 59 P. 740, the same question was raised, but not decided. The authorities are there collated. The attorney general concedes that the decisions of this and other courts are against his position but maintains that they are wrong in principle, and particularly under our present act, which, he argues, is a more stringent measure than our previous enactments. We think a fair construction of this statute is that it was thereby intended to prevent foreign corporations from transacting business in this state as a domestic corporation is authorized to do, except upon compliance with the statutory conditions. We do not think the single act of bringing suit by such corporation in this state to enforce the collection of warrants bought at its place of business such an exercise of corporate power as comes within the inhibition of the statute. While appreciating the force of the argument made by the attorney...