TRAYNOR, J. — I dissent. Statutes of limitation are procedural statutes that operate to bar the remedy after a reasonable time for bringing suit upon an accrued cause of action, has elapsed. They are not intended to alter or destroy the substantive rights or liabilities involved. (See 34 Am. Jur. 15.) When enforcement is sought in the courts of one state of a right created under the law of another, the law of the forum governs matters of procedure, including the period of limitation imposed upon the remedy. (Restatement, Conflict of Laws, §§ 603, 604.) Invoking the general rule with respect to statutes of limitation, the majority opinion relies upon the provisions of Code of Civil Procedure, section 359, to bar suit upon a bank stockholder’s liability created under the laws of the State of Ohio.
Section 359, while located in that part of the Code of Civil Procedure dealing with statutes of limitation generally, is no ordinary statute of limitations. The section requires that actions against stockholders to enforce a liability created by law be brought “within three years after . . . the liability was created.” The three-year period commences to run from the date the liability is created, irrespective of when the cause of action accrues, and the action might be barred thereunder before any right to sue accrues. (Hunt v. Ward, 99 [53]Cal. 612 [34 P. 335, 37 Am.St.Rep. 87]; see 7 Cal.L.Rev. 346.) This statute, far from prescribing a reasonable period within which an accrued cause of action can be enforced by suit, actually delimits the liability itself. Such a statute, operating to qualify certain rights and liabilities created under the laws of this state, should not be regarded as a procedural regulation of the forum with respect to actions involving the enforcement of foreign rights and liabilities. Statutes that do not merely limit the remedy, but qualify the right, are treated as part of the substance of the obligation to be determined according to the law under which the obligation is created. (Davis v. Mills, 194 U.S. 451 [24 S.Ct. 692, 48 L.Ed. 1067] ; Osborne v. Grand Trunk R. Co., 87 Vt. 104 [88 A. 512, Ann.Cas. 1916C, 74]; cf. Central Vt. Ry. Co. v. White, 238 U.S. 507, 511 [35 S.Ct. 865, 59 L.Ed. 1433] ; see Restatement, Conflict of Laws, § 605, comment a; 34 Am.Jur. 16; 28 Yale L.J. 492, 494.)
Section 359 may be applied for reasons of policy to qualify rights and liabilities arising under the laws of this state. When the section was included in the Code of Civil Procedure in 1872 the Constitution of California provided that each shareholder of a corporation was individually and personally liable for his proportion of all its debts and liabilities. (Canst, of 1849, art. IV, § 36.) A similar provision was incorporated in the Constitution of 1879. (Art. XII, § 3.) This liability not only worked hardship upon the individual shareholder, but obstructed the state’s industrial development. (See criticism in Richardson v. Craig, 11 Cal.2d 131 [77 P.2d 1077], and in 17 Cal.L.Rev. 276.) It was inevitable that so broad a liability should come to be strictly limited. Thus, it was held to be “created” within the meaning of section 359 when the obligation was incurred so that the period of limitations could run and the creditor be barred from suing the shareholder before his right to sue had even accrued. (Hunt v. Ward, supra.) This interpretation was reaffirmed in an opinion pointing out that reliance thereon had been an important factor in the investment of millions of dollars in this state. (Gardiner v. Royer, 167 Cal. 238 [139 P.75].) The harshness of proportional liability was mitigated by this construction. When the constitutional provision imposing this liability was finally repealed in 1930 section 359 ceased to be necessary as a limiting restriction upon an unwisely broad liability, but its repeal was apparently overlooked.
Whatever the reasons of policy for the way in which sec[54]tian 359 has been applied to liabilities created under local law, the application of that section to a stockholders ’ liability created under the laws of another state raises major issues that have been disregarded in the present case as in those that have preceded it. Without a clear perception of the distinction between local and foreign liabilities, it has been held that section 359 is applicable to the liability of bank stockholders imposed by other jurisdictions. (See Royal Trust Co. v. MacBean, 168 Cal. 642 [144 P.139] ; Miller v. Lane, 160 Cal. 90 [116 P. 58].) The interpretation of section 359 that starts the period running from the time the liability is created rather than when the cause of action accrues, together with the holdings, made for other purposes, by courts of sister states that their bank stockholder’s liability is a direct and primary one created at the time the obligation is incurred, results in destroying foreign substantive rights before they are ever actually enforceable.
The Ohio courts have held that under Ohio law the stockholder’s liability is'created at the time the debt is incurred or the deposit is made (State v. Arrowhead Investments, Inc., 10 Ohio Op. 119; Poston v. Hull, 75 Ohio St. 502 [80 N.E. 11]; Brown v. Hitchcock, 36 Ohio St. 667; Squire v. Abbott, 8 Ohio Op. 134), but this interpretation does not affect the statute of limitations in that state, for the action there is not barred until six years after the cause of action accrues. (National Bank of Lima v. Squire, 3 Ohio Op. 531.) The cause of action accrues to the creditor when the bank fails to meet its obligations in the ordinary course of business (Squire v. Abbott, supra; cf. Brown v. Hitchcock, supra; National Bank of Lima v. Squire, supra); it accrues to the superintendent of banks when he determines that the bank is insolvent. (National Bank of Lima v. Squire, supra; State v. Bremer, 130 Ohio St. 227 [198 N.B. 874]; State v. Weinberger, 44 Ohio App. 264 [185 N.B. 432]; Feldman v. Standard Trust Bank, 46 Ohio App. 67 [187 N.B. 743]; Trustees of Ohio Wesleyan University v. State, 50 Ohio App. 51 [197 N.B. 612, 621]). In the present case the Ohio superintendent of banks determined that the bank’s condition was unsound and took possession for the purpose of liquidation on June 15, 1933. On July 30, 1934, after auditing the books of the bank, the superintendent found that its liabilities exceeded its assets. He mailed notices to this effect to the stockholders on August 1, 1934, advising them that he intended to enforce their individual liability to the extent of a 100 per cent assessment [55]to be paid by November 1, 1934. Under Ohio law his cause of action did not accrue before July 30, 1934, and his right of action in Ohio was not barred until six years from that date. If, however, the deposits sued upon were made or the debts involved were incurred more than three years before he determined that the bank was insolvent, the application of section 359 would cut off the superintendent’s right to sue the bank’s stockholders in California before it arose and would thus operate to destroy a foreign substantive right before it was ever actually enforceable. This result is reached directly in the case of State of Indiana v. Hoffman, 53 Cal.App.2d 796 [128 P.2d 162], petition for hearing denied by. this court, October 1, 1942, holding that the liability of the stockholders is created as soon as the debt is incurred. A similar determination was avoided in the present case only because the opinion finds it unnecessary under the facts to go back farther than the date of the bank’s failure, more than three years before suit was filed.
California has no policy necessitating the destruction of the substantive right of the foreign bank depositor to enforce the liability imposed upon the bank’s stockholders, and no interest in riding over such rights. In fact, its policy is to impose such liability, for not only does it have a bank act substantially identical with the Ohio statute, but this court has held that the liability under that act is not created until an assessment is made by the superintendent of banks. (Richardson v. Craig, supra; see, also, Johnson v. Greene, 88 F.2d 683, reaching the same conclusion regarding the National Bank Act, from which the California and Ohio statutes were copied.) It could not have held otherwise without vitiating the statutory provisions relating to assessments, for an assessment can rarely be imposed within three years of the creation of the bank’s indebtedness. The majority opinion, while conceding the right to maintain actions in the courts of this state to the California superintendent of banks, denies such a right on parallel facts to the Ohio superintendent and thus vitiates the Ohio statutory provisions relating to assessments.
The opinion ignores the fact that the suits in question are brought upon a statutory assessment that would be fully recognized and enforced in the Ohio courts (Squire v. Standen, 135 Ohio St. 1 [18 N.E. 608, 120 A.L.R. 952]; State v. Murfey, Blossom & Co., 131 Ohio St. 289 [2 N.E.2d 866]; [56]Vance v. Warner, 129 Ohio St. 357 [195 N.E. 704]; State v. Cruikshank, 51 Ohio App. 61 [199 N.E. 611]; Baumgardner v. State, 48 Ohio App. 5 [192 N.E. 349]), and thus gives rise to an unconstitutional denial of full faith and credit to the statutes of Ohio and the assessment levied thereunder. (Bradford Elec. L. Co. v. Clapper, 286 U.S. 145 [52 S.Ct. 571, 76 L.Ed. 1026]; Broderick v. Rosner, 294 U.S. 629 [55 S.Ct. 589, 79 L.Ed. 1100, 100 A.L.R 1133]; John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178 [57 S.Ct. 129, 81 L.Ed. 106]; Restatement, Conflict of Laws, § 332, p. 408; see Lang-maid, Full Faith and Credit Required for Public Acts, (1924) 24 Ill.L.Rev. 383.) An assessment of stockholders’ liability, whether made by court order or by an administrative officer pursuant to statutory authority, is a public act to be accorded full faith and credit, under the Constitution of the United States, in the courts of another state. (Broderick v. Bosner, supra; Converse v. Hamilton, 224 U.S. 243 [32 S.Ct. 415, 56 L.Ed. 749].) The defendant stockholder may set up personal defenses (Chandler v. Peketz, 297 U.S. 609 [56 S.Ct. 602, 80 L.Ed. 881]), but once the obligation of the stockholders is determined in an assessment proceeding, the existence and amount of the debt and the propoitional liability of each are res judicata and not subject to collateral attack in an action brought in another state to enforce collection against a non-resident stockholder. (Selig v. Hamilton, 234 U.S. 652 [34 S.Ct. 926, 58 L.Ed. 1518] ; Marin v. Augedahl, 247 U.S. 142 [38 S.Ct. 452, 62 L.Ed. 1038] ; Glenn v. Liggett, 135 U.S. 533 [10 S.Ct. 867, 34 L.Ed. 262]; see Restatement, Conflict of Laws, § 186, comment c; 13 Fletcher, Cyclopedia of the Law of Private Corporations (perm, ed.), § 6522, p. 953.)
It is unconstitutional to impose as a prerequisite of suit a condition impossible to fulfill on the pretext of regulating procedure. (Broderick v. Rosner, supra; Rankin v. Barton, 199 U.S. 228 [26 S.Ct. 29, 50 L.Ed. 163]; Lamb v. Powder River Live Stock Co., 132 F. 434 [65 C.C.A. 570, 67 L.R.A. 558].) In Broderick v. Rosner, supra, the New York superintendent of banks brought an action in New Jersey to recover on an assessment of the statutory liability of stockholders of an insolvent New York bank. The New Jersey courts, refusing to allow the action, relied upon the Corporation Act of New Jersey providing that no action against any stockholder of a foreign corporation to enforce the statutory liability arising under the laws of another state' could be [57]brought in the courts of New Jersey unless it was in the nature of an equitable accounting with all stockholders and creditors as necessary parties. The Supreme Court held that New Jersey could not deny full faith and credit to the New York assessment, since the New Jersey statute, while nominally affecting the remedy only, imposed a condition impossible to fulfill as a prerequisite of an action to enforce an assessment of a sister state and therefore violated the full faith and credit clause of the United States Constitution. In concluding that the assessment was as much entitled to full faith and credit as if it had been made by court order, the opinion declared: “The fact that the assessment here in question was made under statutory direction by an administrative officer does not preclude the application of the full faith and credit clause. If the assessment had been made in a liquidation proceeding conducted by a court, New Jersey would have been obliged to enforce it, although the stockholders sued had not been made parties to the proceedings, and, being nonresidents, could not have been personally served with process. (Converse v. Hamilton, 224 U.S. 243, 252 [32 S.Ct. 415, 56 L.Ed. 749].) The reason why in that case the full faith and credit clause was held to require Wisconsin courts to enforce the assessment made in Minnesota was not because the determination was embodied in a judgment. Against the nonresident stockholders there had been no judgment in Minnesota. Wisconsin was required to enforce the Minnesota assessment because statutes are ‘public acts’ within the meaning of the clause.” The barring of actions in this state before the cause of action ever accrues is certainly as drastic as the condition imposed by the New Jersey law held invalid in the foregoing case.
Peters, J. pro tem., concurred.