Milton-Freewater & Hudson Bay Irr. Co. v. Skeen
| Decision Date | 29 June 1926 |
| Citation | 118 Or. 487,247 P. 756 |
| Parties | MILTON-FREEWATER & HUDSON BAY IRR. CO. v. SKEEN. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Umatilla County; J. U. Campbell, Judge.
Suit by the Milton-Freewater & Hudson Bay Irrigation Company against La Fayette Skeen. From a decree of dismissal, plaintiff appeals. Reversed.
This is a companion suit to the case of Delilah Laur, Hannah E Nietert, La Fayette Skeen, and Verona B. Kinney v. Walla Walla Irrigation Co., a Corporation, E. C. Burlingame, and Aubrey E. Perry, 247 P. 753, in which an opinion has this day been rendered. The relief prayed for in the present suit, and all of the questions involved were practically embraced and determined in the former suit mentioned. But the Milton-Freewater & Hudson Bay Irrigation Company was not a party to the former suit, and the status of the last-named corporation, as the operator of an irrigation system, is apparently involved.
On June 1, 1925, defendant La Fayette Skeen, as coplaintiff with Delilah Laur and Verona B. Kinney, instituted a suit in equity in the circuit court of the state of Oregon for Umatilla county, wherein the Walla Walla Irrigation Company E. C. Burlingame, and Aubrey E. Perry were defendants, to enjoin the defendants from interfering with or molesting, the irrigation ditches of plaintiffs in said suit used by them and their predecessors in interest for over 20 years; to enjoin the continued trespass by said defendants upon the lands of plaintiffs described in the complaint in that suit as well as referred to in the complaint in the present suit to enjoin all rights claimed under an alleged pretended agreement dated February 20, 1924, attached to the complaint in the instant suit as Exhibit A, alleged to pertain to a right of way over and across the Nietert land for certain lateral ditches, and for damages for such trespass.
It is alleged that the two corporations are allied concerns. E. C Burlingame is the president of both corporations. The Walla Walla Irrigation Company is a Washington corporation, and the other, the present plaintiff, is an Oregon company, and claims an interest in the right of way or lateral ditches involved in both of these suits by virtue of an assignment from the Washington corporation.
The present suit is brought for the purpose of restraining defendant Skeen, a lessee of Nietert and Laur, from interfering with the said laterals. The same matter was involved in the prior suit. The defendant Skeen in this suit pleaded the commencement and pendency of the prior suit, and alleged that the Walla Walla Irrigation Company and E. C. Burlingame were the real and sole parties in interest in the matter in dispute in both suits; that, if the Milton-Freewater & Hudson Bay Irrigation Company claimed any such interest, it should be required to intervene in the original suit, and should not be permitted to maintain the present suit; and that the instant case should be abated.
It is also pleaded by defendant Skeen, by way of an amended plea in abatement, that the Walla Walla Irrigation Company was a foreign corporation, and not authorized to do business in this state; that the plaintiff corporation bases its rights in this suit as an alleged assignee of the Walla Walla Irrigation Company, and not otherwise; that the assignment related to property in Oregon, and constituted business to be performed within the state of Oregon, and not otherwise; and that the plaintiff corporation took said assignment with full knowledge of the lack of authority of the Walla Walla Irrigation Company to transact such business in this state. Plaintiff filed a supplemental complaint showing that since the commencement of this suit the Walla Walla Irrigation Company has paid the statutory fees required by law to qualify it to transact business in this state. The request of the corporation commissioner for such fees is presented, and payment is admitted. The circuit court sustained defendants' amended plea in abatement, and dismissed the suit with costs to plaintiff.
J. H. Raley, of Pendleton (Raley, Raley & Steiwer and H. J. Warner, all of Pendleton, on the brief), for appellant.
Stephen A. Lowell and Edward J. Clark, both of Pendleton (Lowell, Clark & McIntyre, of Pendleton, on the brief), for respondent.
BEAN, J. (after stating the facts as above).
Defendant moves to dismiss this appeal for the reason alleged in defendant's plea in abatement, and also for the reason that in the final decree in the former companion suit all rights and claims of the Walla Walla Irrigation Company in and to the system of lateral ditches involved in this suit have been adjudged by the circuit court to be forever barred and held for naught, and as a result of said final decree there is only a moot and academic question presented by this appeal.
The Washington corporation had filed its statement and made reports in compliance with the statute. The only delinquency was that of a failure to pay the fees, for which it made excuses to the corporation commissioner, and the matter stood in that way at the time of the commencement of both of these suits. The Governor had not issued any proclamation in regard to the delinquency of the corporation. It is the contention of the plaintiff that, the Walla Walla Irrigation Company having been delinquent for more that 2 years prior to the commencement of this suit, and prior to the assignment of the lease to the plaintiff, unless the Governor files a certificate enlarging the time, the statute automatically, finally, and conclusively forfeits its corporate powers, with the result that such powers are no longer "in abeyance" and subject to reinstatement by paying fees and interest, but are dead.
Plaintiff contends, upon this appeal, that the foreign corporation, in arrears in payment of its annual license fee, may entitle itself to transact business within the state of Oregon by the full payment of such fees at any time prior to the proclamation being made by the Governor, and that its right to transact business in the state of Oregon has not been revoked or repealed.
It is conceded that no certificate of the Governor had been obtained, and that no steps had been taken under section 6912, Or. L., to revoke or repeal the right of the Washington corporation to transact business within this state. The real question in the case is whether or not a contract made by an Oregon corporation in the state of Oregon with a foreign corporation, which had not complied with the provisions of the statute authorizing it to continue to do business in this state, is void, or whether the same can be enforced by the Oregon corporation after the foreign corporation has complied with the statute subsequent to the time of making such contract.
Section 6884, Or. L., requires that every foreign corporation, joint-stock company or association doing business in this state, except fire, marine, fire and marine, life, accident, life and accident, plate glass and steam boiler insurance companies and casualty and surety companies shall, between July 1st and August 15th of each year, pay in advance to the corporation department of the state an annual license fee of $200.
Section 6885, Or. L., as amended by chapter 111, Gen. L. Or. 1921, p. 216, provides:
Section 6911 requires every foreign corporation organized for gain to file the declaration referred to in sections 6909 and 6910 and the required fee, "and in default thereof, shall not be permitted to maintain any suit, action, or proceeding in any court of justice in this state until such declaration shall have been filed and such fee paid."
In 1911 the Legislature enacted a statute (chapter 50), of which section 6912, Or. L., is a part, and reads as follows:
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