H. D. Haley & Co. v. McVay

FINCH, P. J.

The board of supervisors of Del Norte County, by unanimous vote of the members thereof, adopted the following resolution: “It being deemed by this board of supervisors that a classification of the patented timber and other lands subject to assessment and taxation in Del Norte county is necessary in order to enable this board of supervisors to promptly perform its duties when sitting as a board of equalization, it is therefore ordered that the County of Del Norte this day enter into written agreements with H. D. Haley & Co. of Portland, Oregon, for the classification of such lands on the terms and conditions as set forth in said written agreements on file with this board which written agreements are hereby referred to, and considered a part of this order and motion; the chairman is authorized to sign for the board of supervisors of Del Norte County, Calif.”

On the same day two contracts were duly executed, one providing for a “cruise and estimate of all timber on such patented lands ... as shall be hereafter designated” by the board and the other for the “classification, topographical survey, and report of such patented lands ... as shall be hereafter designated” by the board.

The company performed services in accordance with the terms of both contracts and its reports thereof “were used by such board as data for the equalization of taxes in said county, during the session of said board as a board of equalization in the month of July, 1923.” The company filed claims for such services, which claims were duly allowed by the board. The contracting corporation thereafter assigned such claims to the petitioner herein, a corporation organized under the laws of this state. The county auditor refused to issue his warrants for the claims so allowed and this proceeding was then instituted to compel such issuance.

[440]

The court granted an alternative writ of mandate, which was duly served upon the auditor. The auditor did not file an answer, but the district attorney appeared for him at the hearing and resisted the application. Evidence was introduced in support of the application and, after argument by counsel for the respective parties, the court rendered judgment denying a peremptory writ. This appeal is from the judgment.

The petition alleges that H. D. Haley & Company, the contracting corporation, is “a corporation duly organized and existing under and by virtue of the laws of the State of Oregon.” It is not alleged, nor was any proof offered, to show that such corporation had taken the required steps to authorize it to do business in this state. Section 1 of the Corporation License Act of 1917 (Stats. 1917, p. 371), as amended in 1921 (Stats. 1921, pp. 638, 640'), after prescribing a fine to be imposed upon a foreign corporation for doing business in the state without complying with the statute, provides: “In addition to the penalty herein provided every contract made by or on behalf of any such foreign corporation affecting the personal liability thereof or relating to property within the state shall be held void on its behalf and on behalf of its assigns, but shall be enforceable against it or them.” Respondent contends that the judgment must be affirmed because of the failure to allege and prove that the contracting corporation had complied with the statute. “ An allegation of compliance with the statutory conditions for doing business is not necessary in a complaint by a foreign corporation. If it does not appear on the face of the complaint that plaintiff has not complied with the statute, such want of capacity to sue cannot be raised by demurrer.” (7 Cal. Jur. 212;