Peter Burghard Stone Co. v. Carper

DISSENTING OPINION. I challenge the decision of the majority of this court as being contrary to the interests of the state, and of its citizens, as a misinterpretation of the plain words of the statute, as reaching a result that can only be reached by judicial legislation, and as against, not only the better reasoning, but the great weight of authority. It is proper that we should have before us the circumstances and conditions which confront us. Since the decisions in the cases of U.S. Construction Co. v. HamiltonNat'l Bank (1920), 73 Ind. App. 149, 126 N.E. 868; Burroughs v. Southern Colonization Co. (1933), ante 93, and State exrel. v. Traylor (1921), 77 Ind. App. 419, 132 N.E. 608, the Secretary of State has issued and published a bulletin on the subject of "Transacting Business in Indiana by Foreign Corporations" based as to the requirements of such corporations upon these authorities. As a result thereof, such corporations, evidently not choosing to risk having their contract declared void, have complied with the law of the state as required by the statute, until now there are about 1,000 corporations so qualified. If these cases are overruled and such corporations understand that, in harmony with the majority opinion herein they can transact business in the state without complying with the statute, until they need to do so to use our courts for litigation, thereby saving the fees which they would otherwise pay to the state, and thereby avoiding the appointment in the state of an agent upon whom summons can be served in the event that they for any reason should become liable to a citizen of the state, either because cause of breach of contract or in tort, it can hardly be questioned that the great number of these foreign corporations that have so qualified will cease to comply with the statute. If the law is as declared by the majority opinion, then a foreign corporation can enjoy privileges and benefits that a domestic corporation can not have, simply by violating our statute. It can, until it may have occasion to use our courts, do business free of charge, and if it shall become liable to a citizen, it can withdraw from the state, and the citizen is without remedy.

In the event of such course, which will surely follow, the state will lose the fees which such non-complying corporations would pay for their right to transact business in the state lawfully, and the citizens of the state must suffer should there be a liability against such corporations, because citizens will be unable to bring actions for any such liability accruing to them, for the reason that there will be no person in the state upon whom process can be served.

Let us first, without resorting to any list of authorities as precedents for the conclusion which I reach, examine the sections of the statute here involved, determine the meaning of their plain words, and then when we have reached a conclusion by sound reasoning as to the meaning of such sections, as intended by the legislature, see whether we cannot find authorities to sustain such conclusion. The first section, quoted in the majority opinion, is § 1, ch. 176, of the Acts of 1907, p. 286, §§ 4909-4918, Burns 1926, which provides that "Before any foreign corporation for profit shall be permitted or allowed to transact business or exercise any of its corporate powers in the state of Indiana . . . it shall be required to comply with the provisions of this act and shall be subject to all the regulations prescribed herein, as well as all other regulations, limitations and restrictions applying to corporations of like character organized under the laws of the state." The language of the section is plain and unequivocal. Such corporations, until they have complied with the requirements of the statute, can not transact business or exercise any of their corporate powers in Indiana. It necessarily follows that any business transacted by such a corporation and any contracts that are entered into by it before its compliance as aforesaid, are unlawful. The statute, by its plain words, absolutely prohibits a foreign corporation from transacting any business until qualified.

Now let us examine Section 9 of the same act, being § 4618,supra. This section provides a penalty of not less than $1,000 and not exceeding $10,000 for a violation of the provisions of the act, and then provides in addition to such penalty, "in addition to such penalty, if after this act shall take effect, any foreign corporation shall fail to comply herewith, no suit may be maintained, either at law or in equity, upon any claim, legal or equitable, whether arising out of contract or tort, in any court of this state." This section does not say that any suit shall not be maintained until there is a compliance with the statute, and it cannot be made so to read, except by judicial legislation. The statute clearly forbids the transaction of any business until there is a compliance, makes such business unlawful, forbids any suit on any contract entered into and prescribes a penalty for violation of the statute. What more could it do?

Having reached this conclusion, I can not conceive how anyone can contend that it is not in harmony with sound reasoning and the plain words of the statute, I am now ready to fortify myself in the conclusion which I have reached through what I believe to be sound reasoning, by the authorities which I will hereinafter discuss.

Of course, if the authorities cited in the majority opinion are erroneous in their construction of the statutes involved, and if such construction is harmful to the state and its citizens, there certainly can be no reason to follow such authorities in the face of reason and justice. There can be no reason for perpetuating an erroneous construction of a statute based upon an erroneous precedent. The rule should be first, the determination, by sound reasoning, of the right principle, and then for the purpose of fortifying such determination, to find authorities to sustain it, and not first the authorities which perchance may be erroneous, and then to determine the principle, right or wrong, based thereon.

The first authority cited in the majority opinion, which we need to discuss, is Walter A. Wood Co. v. Caldwell (1876),54 Ind. 270, from which the majority opinion quotes extensively, the court construing the Act of 1852, 1 R.S. 1876, p. 373, concerning foreign corporations, Sections 1, 2, 3, 4, 5, 6, and 7 of which provided for certain things which agents of such corporations were required to do before entering upon the performance of the duties of their agency in this state, and Section 4 of which act provided that such foreign corporations should not enforce in any courts of this state, any contracts made by their agents or persons assuming to act as their agents, before a compliance by such agents, or persons acting as such, with the provisions of Sections 1 and 2 of the act. The court first set out the insurance act of 1865, 1 R.S. 1876, p. 594, Section 1 of which first provided that it should not be lawful for any agent or agents of any insurance company incorporated by any other state than the State of Indiana, directly or indirectly, to take risks or transact any other business of insurance in this state, without first producing a certificate of authority from the auditor of state. There were other requirements and prohibitions in this section to the same effect. Section 7 of the act provided penalties for the violation of the act. The court, after stating that the statute contained no section or clause thereof, declaring what the effect of non-compliance with its provisions should be upon contracts made before compliance, then held that contracts made in violation of the statute were void, citing Hoffman v. Banks (1872), 41 Ind. 1; Union Central Life Ins. Co. v. Thomas (1874), 46 Ind. 44; Farmers, etc., Ins. Co. v. Harrah (1874),47 Ind. 236. To the same effect is Cassady v. American Ins.Co. (1880), 72 Ind. 95.

The Hoffman case held that where a premium note was given for a policy in a foreign corporation, which had not complied with the law, and no certificate had been issued to the agent receiving the note, the note was void. The other two authorities are to a similar effect. If the contracts involved in these cases were void because there had been no compliance with the statute which said that it shall not be lawful to transact business without first complying, and those authorities are not overruled, then why are contracts under the act under consideration, which provides that foreign corporations shall not transact business or exercise any of their corporate powers before compliance with the act not void? The court then proceeded to a discussion of the act of 1852, cited above, Section 4 of which, set out above, distinguished it from the insurance act of 1865 construed in such case, as appears above, in that said Section 4 declared what the effect of non-compliance with the 1852 act would be, which was, that the contract could not be enforced before (until) there was a compliance with sections one and two. These two acts, 1852, 1865, were later repealed, and we have in lieu of the 1852 act, the one here to be construed. I submit that the insurance act 1865 was, in effect, so far as here involved, like chapter 176 of the Act of 1907, here under discussion, and if contracts made in violation of the insurance act of 1865, which had no section or clause declaring the effect of non-compliance with its provisions were held void, then contracts made in violation of chapter 176, here under consideration, section one of which affirmatively declared that before any foreign corporation for profit shall be permitted or allowed to transact business, or exercise any of its corporate powers in the State it shall comply with the provisions of the act and, the act further providing that no suit may be maintained on such contracts, either at law or in equity in any court in this state, then, for the additional reason that no suits may be maintained on such contracts, they are void.

The case of Walter A. Wood, etc., Co. v. Caldwell, supra, so confidently relied on as an authority controlling the case does not apply to the act of 1907, the present statute but does construe the act of 1852 as well as the act of 1865, which is in effect the same as the act of 1907. The majority opinion cites Indiana cases which it says are to the same effect as the Wood case, but every one of them was decided before the present statute was enacted, and, of course, when the statute of 1852, interpreted in the Wood case, was in force. If I am right in my interpretation of the 1852 statute, it follows that none of these cases is in point under the statute of 1907, now in force. The majority opinion cited Horning v. McGill (1919),188 Ind. 332, 116 N.E. 303, which involved the sale of merchandise without filing a proper certificate with the clerk of the court, as required by Acts 1909, p. 358, Burns 1926, § 12160. In that case, the court said: "The statute in this state makes it unlawful for any person or persons conducting or transacting business in this state under any name, designation or title other than the real name or names of the persons conducting such business without first filing a certificate stating the firm or partnership, place of business, and the full name and residence of the persons engaged in or transacting such business, with the clerk of the court of the county in which the place or places of business may be situated. Acts 1909, p. 358 § 9711, et seq. Burns 1914. The appellant had not complied with the provisions of this law." But that the court wrongly interpreted the statute is apparent from a casual reading of it. In overruling this case, the court, in Humphrey v. City Nat'lBank (1921), 190 Ind. 293, on 305, 130 N.E. 237, said: "The statute does not fix any time within which such persons were required to file a certificate, nor provide that it shall be unlawful to continue to conduct business as before, pending the filing of the required certificate, nor that any business shall not be transacted in any name other than the true name of the owner until the certificate is filed, nor does it contain any language purporting to prohibit the conduct of business in the designated manner without first filing a certificate. And obviously the contract for the purchase of a quantity of fish was not, in itself, either immoral or otherwise illegal." See PigglyWiggly Stores v. Lowenstein (1925), 197 Ind. 62, 147 N.E. 771, and Ayres v. McNeely (1921), 75 Ind. App. 327, 130 N.E. 539 for a discussion of the same statute. It seems clearly to be implied that if the statute had contained these prohibitory provisions any contract in violation thereof would have been void.

There is certainly a clear distinction between a statute that does not prohibit the transaction of business before some requirement is performed but simply requires the agent to comply with the requirement, and one that says that the corporation shall not be permitted to transact any business or exercise any of its corporate powers before it has complied with the provisions of the statute. These last provisions are those of the statute which controls the decision of this case.

I may say here, parenthetically, that I am wholly unable to understand why the courts in the discussion of foreign corporation statutes, have classified such corporation contracts into those that are legal or moral, and those which are illegal and immoral, holding that the latter class are the ones, that under the statute, can not be enforced. Any lawyer or judge knows that immoral and illegal contracts can not be enforced regardless of these statutes, or in any event.

In the Horning case the court was unfortunate in citingBeecher v. Peru Trust Co. (1911), 49 Ind. App. 184, 97 N.E. 23, and Sandage v. Studebaker, etc., Co. (1895),142 Ind. 148, 41 N.E. 380. Each of these cases announces a correct principle of law, but neither of them sustains the court's decision, which, as stated above, was overruled.

The Beecher case pertained to the right to sell or offer for sale commercial stock food without having complied with the Acts of 1907, p. 354, as amended in 1909, Acts 1909, p. 106, being § 8825, et seq. Burns 1926.

The first section of the act provides, so far as there and here involved, "That before any concentrated feeding stuff is sold, offered or exposed for sale in Indiana, the manufacturer, importer, dealer, agent or person who causes it to be sold, or offered for sale, by sample or otherwise, within the state, shall file with the state chemist of Indiana, at the Indiana Agricultural Station, Purdue University, a statement that he desires to offer such concentrated feeding stuff for sale in this state," with further provisions. § 8830, being § 6 of the act, provides a penalty for its violation. It needs hardly to be remarked that the questions there involved were the same as here. The court stated the rule as follows: "The prevailing weight of authority establishes the proposition that where the statute forbids the carrying on of a business without the procuring of a license, the payment of a tax, compliance therewith prescribed tests, inspection, registration or the like, contracts made by persons carrying on such business are void though the statute contains no express provision to that effect.

"If the statute prescribes what shall be done before the right to do a certain thing, or carrying on a certain business, is granted, and prohibits such business under penalty, the fact that the act is made a misdemeanor implies a prohibition and gives to it the same effect it would have if the statute expressly declared void contracts made in carrying on such business." Numerous authorities are cited that sustain the rule.

In the Sandage case the court stated the rule to be "that there can be no recovery on a contract made in violation of a statute, as between the parties thereto, the violation of which is prohibited by a penalty. This is true although the statute does not in terms, pronounce the contract void nor expressly prohibit the same. This doctrine is well supported by many English and American decisions." Authorities are cited.

In the Woods case, relied upon in the majority opinion as aforesaid, the court stated the common-law rule to be that "at common law, the general rule is that, if the statute forbids the act to be done or provides a penalty for doing it, any contract to do such act is invalid whether the statute declares it to be so or not."

Now, let us read again the statute here under consideration, which is that "before any foreign corporation for profit shall be permitted or allowed to contract business or exercise any of its corporate powers in the State of Indiana . . . it shall be required to comply with the provisions of this act," etc.

The legislature has certainly made a desperate effort to make the law so plain that it would be impossible of misconstruction by the court, for, after the enactments above discussed and which seem so clear to me, in 1913, it again issued its mandate as follows: "That it shall not be lawful for any foreign corporation to transact business in this state until it has filed with the auditor of state a certified copy of a vote or resolution of its board of directors, consenting that service of process in any action against it may be served upon the auditor of state of Indiana, and agreeing that any process so served shall be of the same legal force and validity as if served upon such corporation, and agreeing that such service may be made with such effect, while any liability remains outstanding against such corporation." It is to be observed that this statute is wholly unburdened by penalties or other environments. It simply provides that "it shall not be lawful," etc. Acts 1913, page 60. With these statutes before us, it is beyond me to understand how the courts can hold that a foreign corporation has any rights in this state until it has complied with them. To do so, as it seems to me, is to usurp legislative prerogative, annul enactments, and, in this case, to permit a foreign corporation that has for years violated our laws, until it had need to use our courts, then to make a pretended qualification, and sue the widow of one of our citizens who, so far as appears, without compensation, had signed one of its bonds. This I decline to do.

To sustain its contention that a contract in violation of statute is not void, the majority opinion cites Sandage v.Studebaker, etc., Co., supra, but that case is not helpful to the contention. In the first place the case does not hold that contracts in violation of a statute are not void, but does hold that although the statute in terms does not pronounce the contract void nor expressly prohibit the same, that there can be no recovery on a contract made in violation thereof as between the parties thereto, the violation of which is prohibited by a penalty, is a principle well recognized by the courts. Clearly, the holding is that, whether the contract is void or not, there can be no recovery thereon, if made in violation of a statute, and in the instant case the contract was made in violation of a statute, and it follows that appellant can not recover. As it seems to me, this was an unfortunate citation with which to sustain the contention of appellant, or of the majority opinion.

I must repeat, by way of emphasis, that I am wholly unable to understand why the kind of contract, if, when there is a compliance with the special statute, it is a lawful contract, should make any difference whether it be for a patent right, or for insurance, or what not. Of course, if it is immoral, against public policy, or for any reason prohibited, it is void without any reference to laws controlling contracts of foreign corporations, and it seems to me that any attempt to apply and limit foreign corporation statutes to such contracts is the merest subterfuge by the courts, for the purpose of avoiding the plain provisions of statutes, and to nullify plain legislation.

The next case cited in support of the U.S. Construction Co. v. Hamilton, supra, is U.S. Lead Co. v. Reedy, etc., Co. (1906), 222 Ill. 199, 78 N.E. 567, and we are informed in the majority opinion that this case is not a well considered case, and not in line with the weight of authority. But I do not consider myself bound by this conclusion of the majority opinion, without reason therefor, and I therefore conclude to examine the case. After doing so, I have no hesitation in saying that, not only is it a well considered case, in line with the weight of authority, in concise and plain language, but that it is so squarely against the opinion of the majority that there was nothing else for it to say than to denounce it without reason therefor.

For fear that those reading the majority opinion will be satisfied with the statement that the case is not well considered, I conclude to set it out fully. The statute of Illinois at that time contained the same provisions as to the prohibition of transacting business, a penalty, and no authority to maintain a suit, as the Indiana statute here being considered. The court said: "According to the averments of this plea, appellant transacted the business in question in this state at a time when it was forbidden by our laws so to do, and it was not permitted by our laws to maintain any suit, either legal or equitable, in any of the courts of this state when this suit was instituted. Appellant's contention is that its right to bring action is not barred by these statutes; that they merely abate this suit, leaving to the foreign corporation the right to maintain its action if it shall hereafter qualify to transact business in this state.

"In the case of Cincinnati Mutual Health Assurance Co. v.Rosenthal, 55 Ill. 85, 8 Am. Rep. 626, a similar question arose, the foreign corporation there being an insurance company which had brought suit in this state upon a note given to it for stock in the corporation and for premium on a policy of insurance. It appeared that the contract in pursuance of which the note was given was entered into and the note executed and delivered in this state when the plaintiff was not authorized to transact business in this state, for the reason that it had not complied with the laws of the state in reference to foreign insurance companies. Its lack of authority to conduct its affairs in this state was interposed in bar of the action, and the court, after pointing out that the statute expressly prohibited such a company from effecting insurance or transacting business in this state until after it should have complied with the statute in reference thereto, used this language: `When the Legislature prohibits an act or declares that it shall be unlawful to perform it, every rule of interpretation must say that the Legislature intended to interpose its power to prevent the act, and, as one of the means of its prevention, that the courts shall hold it void. This is as manifest as if the statute had declared that it should be void.' This case has been cited with approval on a similar proposition in Penn v. Bornman, 102 Ill. 523, andIllinois State Trust Co. v. St. Louis, Iron Mountain Southern Railway Co.,208 Ill. 419, 70 N.E. 357.

"The contract upon which this suit was brought, having been entered into in this state when appellant was not permitted to transact business in this state, is in violation of the plain provision of the statute, and is therefore null and void, and no action can be maintained thereon at any time, even if the corporation should at some time after the making of the contract qualify itself to transact business in this state by a compliance with our laws in reference to foreign corporations that desire to engage in business here."

As if to sustain and confirm the statement that the foregoing case is not a well considered case, Bradford v. Indiana, etc.,Co. (1927), 16 F.2d 836, is cited. But that case, though involving an Illinois statute, did not involve the same statute as considered in the U.S. Lead Co. case, which was afterward repealed, and the latter statute did not contain the provisions that were decisive of the U.S. Lead Co. case. The Bradford case is not in any sense an authority in this case, for we are here trying to determine whether a statute that says "thou shalt not" means what it says.

The majority opinion quotes to sustain its contention fromWelbourn v. Kimberling (1909), 44 Ind. App. 455, 89 N.E. 514, as follows: "Were this an action, by a corporation as a going concern, and the question was properly presented, there would be no doubt under the decided cases in this state that to enforce the payment of assessments for which suit it brought would be suspended until a compliance with our statutory requirements. That the learned judge who wrote the opinion, and who usually thinks and reasons so clearly, failed to distinguish between the 1852 statute and the 1865 statute, is manifest in that he has failed, in the cases cited to sustain the statement, to distinguish between those which were based on the one statute or the other. The distinction is clearly made in the case of Wood v. Caldwell, supra. The same failure to distinguish is manifest in the cases cited in the majority opinion. Of the eleven cases cited, seven have no reference to insurance, or to the insurance statute of 1865, then in force, but are clearly under the statute of 1852. Let us get away from this maze of contradictory and inconsistent decisions, and, independently of all of them, read the statute, which is as follows: "It shall not be lawful for any agent or agents of any insurance company incorporated by any other state than the State of Indiana, directly or indirectly, to take risks, or transact any business of insurance in this state, without first producing the certificate from the auditor of state," etc. If not lawful, it is unlawful, and if unlawful, it is illegal, it is void, and the Wood case, construing the 1865 act, so holds, and clearly distinguishes this statute from the 1852 statute. The courts have performed their whole duty when they have construed a statute according to its plain meaning, and, without judicial legislation, leaving that duty and right wholly to the department of state created for that purpose.

In Phoenix Ins. Co. v. Pennsylvania Railroad Co. (1899),134 Ind. 215, 33 N.E. 970, the court recognizes that there is one line of decisions which holds that the contract entered into by a citizen of the state with a foreign corporation which has not complied with the statute, by means of which the citizen has bound himself to the corporation, is void, while another line of decisions holds that such contract is not void, but that the right to enforce it is suspended until the corporation has complied with the statute. That case was one where the insurance company was trying to take advantage of its own failure to comply, and the court said: "The doctrine that a foreign insurance company which has insured the property of a citizen for an agreed compensation may, in case of loss, avoid payment on the ground that it has wrongfully omitted to comply with our statute upon the subject of foreign insurance companies is so much at variance with all our preconceived notions of justice that we would not feel inclined to follow it, unless compelled by authority to do so. We think the decided weight of authority is against such a doctrine."

There are numerous courts, and, for that matter, statutes that have declared this rule.

I shall now, for the purpose of giving a reason for the faith that is in me, and for the purpose of showing that I am not alone in the conclusion I have reached in this case, cite and state the holdings from divers cases in other states.

In Lasher v. Stimson (1892), 145 Pa. St. 30, 23 A. 552, the court, speaking of the terms of the statute, said: "These terms are not onerous, or in conflict with any constitutional rule or rule of public policy. But they are clearly prohibitory, and they indelibly stamp as unlawful any business transaction within the state by a foreign corporation which has not complied with them. It is only by its observance of them that it can have a legal existence for business purposes within this jurisdiction, or acquire contractual rights which our courts will recognize." To the same effect see Thorne v. Travellers (1875), 80 Pa. St. 15, where the court said: "The purpose of the act is to bring foreign corporations doing business in this state within the reach of legal process. This purpose is not accomplished by a registration of the corporation at the pleasure of its officers or when it may be to their interest to appeal to our courts. The act is for the protection of those with whom it does business, or to whom it may incur liability by its wrongful acts, and nothing short of a registration before the contract that it seeks to enforce, is made, can give it a right of action. Any other construction of the act would violate its plain words, and wholly defeat its object by affording protection to the corporation and denying it to the public." This statement of the court has a direct application to the instant case, for can anyone say that by the plain words of our statute foreign corporations are authorized to transact business in the state before they have complied with the statute? The answer must be that they are not so authorized.

In McCanna Fraser Co. v. Citizens, etc., Co. (1896), 74 Fed. 597, it was held that where a foreign corporation has not complied with the provisions of the Pennsylvania statute making registration in the office of the commonwealth a condition precedent to transacting business in that state, there can be no recovery in a suit upon a bond conditioned for the faithful performance of the duty of an agent appointed by it to transact business in that state.

In Pittsburgh Construction Co. v. West Side, etc., Co. (1907), 154 Fed. 929, the court construing the statute of Pennsylvania, stated that the act in question did not in terms declare the contract void but that it did declare that no foreign corporation should do business in the commonwealth until it had complied with certain requirements, and that the violation of such provisions was a misdemeanor punishable by a fine and imprisonment. The court then asked the question, do these provisions of the act render void all contracts made by foreign corporations without having first registered as required? It then answered by saying "The weight of authority is to the effect that it is not absolutely necessary, to make such contracts void, that the legislature should, in express terms, declare them so. The rule in this regard has been clearly and aptly stated by Lord Chief Justice Holt in Bartlett v. Vinor, Carth. (Eng.), 252, as follows: `Every contract made for or about any matter or thing which is prohibited and made unlawful by any statute is a void contract, though the statute itself does not mention that it shall be so but only inflicts a penalty on the officer because a penalty implies a prohibition, though there are no prohibitory words in the statute.' The rule thus stated has been generally followed by the courts and especially by the Supreme Court of Pennsylvania."

In Booth v. Weigand (1904), 28 Utah 372, 79 P. 570, the court after stating that Section 9 of Article 12 of the Constitution of that state prohibits corporations from doing business in the state without complying with certain requirements which I do not need to set out, and that Section 26 of said article declares all provisions of the Constitution both mandatory and prohibitory when there are no express words declaring them to be otherwise, then holds the contracts of a foreign corporation made while doing business in the state, without having complied with the laws of the state respecting such corporations, are invalid, and cannot be enforced in the courts of the state. This case, on petition for rehearing, was overruled as reported in 30 Utah, and as a striking example of the limits to which courts will sometimes go to accomplish results regardless of constitutional and statutory provisions, you are referred to Utah's Constitution and statute. I can see but little use for a legislature in that state.

The Missouri statute (R.S. 9790) provides that before foreign corporations shall be permitted or allowed to transact business in the state, or continue to transact business therein, if already established, it shall comply with the provisions of the statute.

In the case of Tri-State Amusement Co. v. Forest ParkHighlands, etc., Co. (1905), 192 Mo. 404, 90 S.W. 1020, it was held that a contract entered into by a foreign corporation within the state before complying with the statute forbidding it to transact business in the state without establishing a local office, an agent to receive service of process, and paying taxes, is void; and subsequent compliance with the terms of the statute will not enable the corporation to maintain an action on the contract, although the statute provided a penalty for failure to comply with it, and declares that no corporation failing to do so "can maintain any suit or action" in any of the courts of the state. The court further states that the argument was made that the statute was not intended to affect the validity of the contract, but only the remedy for the enforcement thereof; but the court refused so to construe the statute, and held that it struck at both the validity of the contract and the remedy for the enforcement thereof.

In American Copying Co. v. Eureka Bazaar (1906), 20 S.D. 526, 108 N.W. 15, it was held that compliance by a foreign corporation with the laws of the state after securing a contract and commencing to enforce it will not enable it to maintain the action, where the statute provides that no action shall be commenced or maintained in the state courts, by such corporation on any contract made by it in the state, unless it shall have fully complied with the provisions of the statute.

In Farrior v. New England, etc., Co. (1889), 88 Ala. 275, 7 So. 200, it was held that the single act of loaning one money and taking a mortgage to secure it, in Alabama, by a foreign corporation engaged in the business of loaning money on mortgages, when it has no place of business or agent within the state, is a violation of the Constitution of Alabama providing that no foreign corporation shall do any business in the state without having at least one place of business and an authorized agent therein, and that the promise of the mortgager is void, and a bill to foreclose the mortgage can not be maintained.

There are numerous other cases to the same effect as the foregoing, but I deem it unnecessary to review them for the purposes of this opinion. It is apparent from a careful consideration of all the cases considered in this opinion and in the majority opinion that what appears to be a contradiction in the decisions of the various courts of the United States is not such a fact except in a very few instances, but that the seeming contradictions are generally the result of the variations in the wording of the statutes of the various states, of a failure of the courts to make distinctions that the plain language of the statutes make, and that where the statute of the state is like the present statute of Indiana, any contract made by foreign corporations in such states are held to be void and unenforceable, while in the states where the statutes are like the one of 1852, as re-enacted in 1907, and reviewed in the majority opinion and upon which the result therein was reached, contracts executed in such states are not held void and are enforceable upon a compliance with the statutes.

Let me say again, and finally, that the distinction between the two classes of statutes is clearly pointed out in the WalterWood, etc., Co. v. Caldwell (1876), 54 Ind. 272, relied upon in majority opinion and considered herein.

The statute of Indiana in force in 1865, being 1 Garvin Hord's Statutes, 327, provided for certain requirements of express companies desiring to transact business in the state, and then provided that until such requirements were complied with it should not be lawful for such company to transact the business of transporting packages or parcels of bank notes, coins, merchandise or other articles over and upon any of the railroads in the state, receiving or agreeing to receive compensation for such services. The statute also provided that anyone violating the act should be guilty of a misdemeanor, and upon conviction fined not less than $10 nor more than $100. This statute was in force in 1864, at the time thatDaniels v. Barney and Daniels v. Wells (1864), consolidated and reported in 22 Ind. 207, were decided; and it was there held that an action could not be maintained against the principal and surety upon a bond given by an express agent to secure the faithful discharge of his duties to an express company which carried on its business in the State of Indiana, without compliance with the requirements of the law of March 5, 1855 (1 G. H., 327) because under the provisions of that law the business of such company, so carried on, was illegal. It was further held that the parties to such bond were bound to know the law, should be presumed to know that the requirements of the law had not been complied with by the company, which requirements were necessary to render the business legal.

In Aspinwall v. Ohio, etc., Co. (1863), 20 Ind. 492, appellee company was incorporated to do business by the legislature of Indiana. It received subscriptions to its capital stock payable in installments as the company might determine and then migrated to Ohio and there established its office and performed all its corporate acts, and determined in what installments and at what times such subscriptions should be paid, and required them to be paid at its office in Ohio. It was held that such subscriptions could not be collected because such corporate acts were inoperative and void, the corporation having no legal existence in the State of Ohio.

The following cases affirmed the principle that contracts which contravene the provisions of a statute are void: State Bank v.Coquillard (1855), 6 Ind. 232; State, etc. v. State Bank etal. (1854), 5 Ind. 353; Case v. Johnson (1863), 91 Ind. 477;Siter v. Sheets (1855), 7 Ind. 131, 134; Neglebaugh v.Harder, etc., Co. (1899), 21 Ind. App. 551, 51 N.E. 427; 9 Am. Eng. Encycl. of Law 909.

It is my opinion that the majority opinion is against the plain words of the statute, that it is contrary to sound reasoning and the great weight of authority, that a wrong result is reached, and one that will work damage to the state and injury to its citizens, that U.S. Construction Co. v. Hamilton NationalBank should not be overruled, and that the judgment of the trial court should be affirmed.