The State of Missouri ex rel. Nelson
| Decision Date | 11 January 1909 |
| Citation | 115 S.W. 505,135 Mo.App. 81 |
| Parties | THE STATE OF MISSOURI ex rel. EARL F. NELSON, Prosecuting Attorney, etc., Respondent, v. THE S. P. POND COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Sullivan Circuit Court.--Hon. John P. Butler, Judge.
AFFIRMED.
Judgment affirmed.
W. J Roberts and Calfee & Eubanks for appellant.
(1) The statute under which defendant is proceeded against is highly penal and must be strictly construed against and liberally construed in favor of the defendant. 2 Lewis' Sutherland on Statutory Construction (2 Ed.), secs. 337, 520-527; Dwarris on Statutes (1 Ed.), pp. 736, 743; State v Railroad, 19 Mo.App. 104; Parish v. Railroad, 63 Mo. 284; State v. Bryant, 90 Mo. 537; State v. McChance, 110 Mo. 398, 19 S.W. 648; St. Charles v. Hackman, 133 Mo. 634, 34 S.W. 881; State v Gritzman, 134 Mo. 512, 36 S.W. 42. (2) Statutes imposing penalties must be strictly construed and when one proceeded against falls not within the letter of its terms, the penalty is not enforceable. Snow v. Boss, 73 S.W. 637; Davis v. Pullman Co., 79 S.W. 637. (3) "A fine of not less than $ 1000; . . . in addition to which penalty . . . no foreign corporation, as above defined, which shall fail to comply with this act, can maintain any suit or action . . . in any of the courts of this State," is the punishment provided for by section 1026 for neglect or failure to comply with the conditions of sections 1024 and 1025. People v. Stevens, 13 Wend. (N. Y.) 341; Commonwealth v. Avery, 14 Bush. (Ky.) 625, 29 Am. Rep. 431. (4) If a foreign corporation can maintain an action in a Missouri court at the time it is proceeded against,--that is to say, if a portion of the punishment prescribed by section 1026 cannot be inflicted upon it--it is not subject to a fine. (5) At the time this suit was begun the defendant could have maintained an action in any court in this State. Carson-Rand Co. v. Stern, 129 Mo. 381, 388. It, therefore, is not liable to the fine.
Earl F. Nelson for respondent.
(1) The object of the statute under which the action is brought is remedial and not penal. (2) The interpretation of the statute should be reasonable. Fosburg v. Rogers, 114 Mo. 122; Plum v. Kansas City, 101 Mo. 525. (3) The true intent of the statute should govern, and the effects and consequences of the proposed construction may properly be considered to ascertain the probable intention of the Legislature. State ex rel. v. Perkins, 123 Mo. 56; Grimes v. Reynolds, 94 Mo.App. 576; Bowers v. Smith, 111 Mo. 45; St. Louis v. Lane, 110 Mo. 254; Kane v. Railway, 112 Mo. 34; State ex rel. v. Ronbauer, 104 Mo. 619; Choteau v. Railway, 122 Mo. 375. (4) Regard must be had for the object which prompted the enactment and the mischief to be remedied. Spitler v. Young, 63 Mo. 42; Ross v. Railway, 111 Mo. 18; Pugh v. Railway, 118 Mo. 506. (5) Contracts made before compliance with the statute are void and are not made valid by subsequent compliance. Amusement Co. v. Amusement Co., 192 Mo. 412; Erdhardt v. Robertson Bros., 78 Mo.App. 404; Mill Co. v. Lewis, 197 Mo. 507; Bank v. Leefer, 121 Mo.App. 688; Handlin, etc., Co. v. Cons. Co., 124 Mo.App. 349; Buggy Co. v. Priebe, 123 Mo.App. 521; Roeder v. Robertson, 202 Mo. 522. (6) Therefore, if such contracts (void because of the penalty imposed) are not made valid by subsequent compliance with the statute, the corporation is not relieved from the penalty prescribed by the statute by reason of its subsequent compliance. Cases cited under point 7; Elsberry v. State, 52 Ala. 8; Nursery Co. v. Commonwealth, 55 S.W. 691; Wolfort v. Oil Co., 77 Ark. 203, 91 S.W. 306; Zink & Copper Co. v. Crump, 69 S.W. 574; A. Booth & Co. v. Weigland, 10 L. R. A. (N. S.) 693. (7) The cases holding foreign corporations can maintain actions where they have done business without compliance with the statute, on subsequent compliance are based upon the proposition that the monetary penalty is sufficient punishment where the corporation has finally complied with the statute. To relieve the corporation of this monetary penalty, as defendant contends for, would be to invite foreign corporations to evade the law because a hasty compliance after their offense was discovered would relieve them from all responsibility for their previous violations. A. Booth & Co. v. Weigland, 10 L. R. A. (N. S.) 693; Wolfort v. Oil Co., 77 Ark. 203, 91 S.W. 306; Zinc & Copper Co. v. Crupp, 69 S.W. 574; Mill & Lumber Co. v. Sims, 101 Mo.App. 579. (8) A foreign corporation doing business in Missouri must comply with the provisions of section 1025, Revised Statutes, 1899, before it does business in the State. R. S. 1899, sec. 1315; Amusement Co. v. Amusement Co., 192 Mo. 423; Erdhardt v. Robinson, 78 Mo.App. 404.
The defendant is a corporation organized under the laws of Iowa. It was charged by the prosecuting attorney of Sullivan county with violating section 1025 Revised Statutes 1899, in not having filed with the Secretary of State a copy of its charter, etc., as prescribed by that section; and it was alleged that by reason of such violation of the statute, it became "subject to a fine of not less than $ 1,000," as provided by section 1026 of such statute. The State's complaint was filed November 27, 1907. A fine in the amount of $ 1,000 was assessed against defendant by the trial court and it thereupon appealed.
A demurrer to the complaint filed by the State, was overruled, and defendant thereupon filed its answer. The prosecuting attorney then demurred to the answer and it was sustained by the court. The defendant stood upon the answer and the court then assessed the fine.
The answer admitted that defendant was a corporation organized in Iowa "and that on the first day of June, 1907, and continuously from that date until the 29th of July, 1907, it was doing business as a corporation for purposes of gain in Sullivan county, Missouri." The business admitted was buying and preparing for market, farm products and shipping them to persons without the State of Missouri,--all sales being made in Iowa; and that it did this without complying with the statute to which we have referred. But the answer further averred that long prior to the beginning of this prosecution, and ever since its beginning, it had maintained a public office in Sullivan county, Missouri, for the transaction of its business, and that on the 22nd of July, 1907, it complied with the statute by making the proper statements and filing them with the Secretary of State, and that on the 29th of that month the Secretary issued to it a license as required by that statute, whereby it was licensed to engage "in the business of buying, preparing for market as food, and selling, farm products, with all the powers convenient for the purpose which is authorized by its charter."
It will be observed that the defendant's answer admits it to be an Iowa corporation which did business in this State during the month of June and part of July, 1907, without depositing the proper papers with the Secretary of State and taking out a certificate of authority as required by section 1025. On the face of such statement the defendant would, of course, be liable to the penalty prescribed by section 1026.
But it seeks to avoid such conclusion by the fact that before the beginning of this prosecution, which, as already stated, was not until November 27th, it complied with the statute and received a certificate of authority to do business from the Secretary of State. In our opinion, after there has been a violation of the statute, a compliance therewith afterwards and before a prosecution is begun, cannot affect the offense already committed. Subsequent obedience to temporal laws does not pardon prior violations. That is a divine law, but corporations having no souls to save (1 Blackstone Com., 477) have neither necessity nor right to invoke it.
But defendant has advanced a theory in aid of its defense, that the...
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