Ohio-Colorado Min. & Mill. Co. v. Elder

Citation99 P. 42,47 Colo. 63
PartiesOHIO-COLORADO MIN. & MILL. CO. v. ELDER et al.
Decision Date07 December 1908
CourtSupreme Court of Colorado

Error to District Court, Gunnison County; Theron Stevens, Judge.

Action between the Ohio-Colorado Mining & Milling Company and Rufus C. Elder and another, as executors of George W. Elder deceased, and others. Judgment against the company, and it brings error. Dismissed.

E. M. Nourse, for plaintiff in error.

George R. Elder, for defendants in error.

BAILEY J.

On the 5th of February, 1908, the defendants in error filed a motion to dismiss the writ of error theretofore issued in this case for the reason that plaintiff in error had failed to pay the annual corporation license tax provided by Sess. Laws 1902 p. 43, c. 3, for the years 1902 [99 P. 43] to 1908, inclusive. For the purpose of avoiding the dismissing of the writ of error, the court then made a rule upon plaintiff in error to pay the tax. Plaintiff in error instead of paying the tax, filed a protest against the order, contending that, inasmuch as the federal Supreme Court declared that portion of the act of 1902 providing for the imposition of the annual state corporation license tax upon foreign corporations to be unconstitutional, the provisions of the act relating to domestic corporations were thereby rendered nugatory, and could not be enforced. Am. Smelting & Refining Co. v. People, 204 U.S. 103, 27 S.Ct. 198, 51 L.Ed. 393. Plaintiff in error appears to misapprehend the effect of the decision. Section 64 of the act provides that domestic corporations shall on or before the 1st day of May of each year pay an annual state corporation license tax to the Auditor of the state of 2 cents upon each $1,000 of its capital stock. Section 65 of the act provides that every foreign corporation which has heretofore obtained or which shall hereafter obtain the right to transact business within the state shall pay 4 cents upon each $1,000 of its capital stock. Section 66 of the act provides that the failure to pay such tax may be pleaded and maintained as an absolute defense to any and all actions, suits, or proceedings in law or in equity brought or maintained by such corporation in any court within the limits of the state until such tax is paid.

The American Smelting & Refining Company was a corporation which had obtained the right to transact business in the state of Colorado previous to the adoption of the law of 1902, and upon its failure to pay the tax provided in that law, an action was brought in the name of the state to have such right to transact business forfeited. It was determined by the federal Supreme Court that the state, by granting the right to the foreign corporation to transact business within the state, in consideration of the payment of the corporation fee, entered into a contract with the corporation that thereafter no greater liabilities would be imposed upon it than upon like domestic corporations, and that in so far as the act of 1902 sought to impose a greater liability upon foreign corporations, which then possessed the right to carry on business within the state, than upon like domestic corporations, it was in violation of the contract, and therefore void. It was not determined that the entire section was unconstitutional, but only so much of it as applied to those foreign corporations which had entered the state previous to the enactment of the law. Plaintiff in error further says that the law ought not to be enforced as against domestic corporations, because, if the Legislature had known that the provisions of the act relating to such foreign corporations were inoperative, the law could not have been passed. That principle has been announced in many well-considered cases which it is unnecessary to here investigate. The General Assembly in the year 1907 repealed the law of 1902, but provided that the repeal 'shall not have in any manner the effect to release, extinguish, alter, modify or change any penalty or liability which shall have accrued under the sections repealed and such sections shall...

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3 cases
  • Stiens v. Fire and Police Pension Ass'n
    • United States
    • Colorado Supreme Court
    • June 4, 1984
    ... ... of the 1978 Act mandating local contributions in excess of one mill to cover unfunded accrued pension liabilities. We held that they were ... Ohio-Colorado Mining & Milling Co. v. Elder, 47 Colo. 63, 99 P. 42 (1908) ... ...
  • Colorado & S. Ry. Co. v. People
    • United States
    • Colorado Supreme Court
    • February 7, 1916
    ... ... This section was heretofore upheld by this court in ... Ohio-Colorado Co. v. Elder, 47 Colo. 63, 99 P. 42 ... The ... judgment is ... ...
  • Oxford Hotel Co. v. Lind
    • United States
    • Colorado Supreme Court
    • February 7, 1910

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