
    Carson-Rand Company, Appellant, v. Stern et al.
    
    Division One,
    June 25, 1895.
    1. Foreign Corporation: statutory requirement: attachment: practice. By the statute (Laws, 1891, p. 75), foreign corporations are required (under a pecuniary penalty) to comply with certain conditions. It also declares that no foreign corporation, failing to comply, "can maintain any suit or action, either legal or equitable, in any of the courts of this state,” etc. A corporation brought an action by attachment, without having complied with the law, but did comply before the return day of the process: held, that it could then “maintain” the action.
    2. -: -: -: -. The statute concerning foreign companies (Laws, 1891, p. 75), should not be enlarged by construction, so as to effect a forfeiture of the right to begin an action.
    
      3. Pleading: construction: mbaning of "maintain.” In pleading, the word “maintain” is defined tornean, "to support what has already been brought into existence.”
    4. Statute: construction. The object of a statute should be considered in construing it, and it should always have a reasonable interpretation.
    5. Practice: dismissal of action. The defense of "another action pending” may be defeated by a dismissal of the other action, and a reply to that effect to the said defense.
    
      Appeal from St. Louis City Circuit Court. — Hon. L. B. Yalliant, Judge.
    Reversed and remanded.
    
      Boyle (& Adams and Wm. A. Kinnerk for appellant.
    (1) The act of April 21, 1891, known as the foreign corporation law, is highly penal and must be strictly construed. State to use v. Railroad, 19 Mo. App. 104; Paris hv. Railway, 63 Mo. 284; State v. Bryant, 90 Mo. 534. (2) The agreed facts show no failure “to comply with the conditions of this law” or no fa.ilure “to comply with this act.” Livingstonev. Stockles, 7 Hill,-255; Catlin v. Insurance Company, 1 Sumner, 439; 1 Platt on Leases, p. 116; Jackson v. Silvernail, 15 Johns. 278. (3) Plaintiff complied with the requirements of section 2 of the act after instituting this suit and before the return day and before the defendant filed the motion, to dismiss; and this was sufficient to entitle it to maintain this suit, and the motion to dismiss should have been overruled. Towne v. Bowers, 81 Mo. 497, and cases cited; Westv. Citizens, 27 Ohio St. 1; Catlinv. Ins. Co., 1 Sumner, 439; Martin-dale on Contracts, secs. 99, 126, 335, 339; Rush v. Frost, 49 Iowa, 183; Ball v. Railway, 71 Iowa, 306; Blood v. Barrington, 8 Pick. 553; Lumber Co. v. Hotel Co., 2 Pac. Rep. 1073. (4) This state does not recognize the rule of some other states that a party failing to comply with the laws of the state can not make an enforceable contract in the state, or enforce it by suit, if made. Ins. Go. v, Walsh, 18 Mo. 237; Prietto v. Lewis, 11 Mo. App. 600; Prince v. Church, 20 Mo. App. 332; Howell v. Stewart, 54 Mo. 404; Michael v. Bacon, 54 Mo. 474; see, also, Washburn Mill Co. v. Bartlett, 54 N. W. Eep. (N. D.) 544; Wright v. Lee, 55 N. W. Eep. (S. D.) 931; Fritts v. Palmer, 132 TJ. S. 282; see, also, 2 Morawetz on Private Corporations [2 Ed.], sec. 665, and Lumber Co. v. Thomas, 33 W. Ya. 566, 25 Am. Eep. 925. (5) The general rule of law is that the right and duty of enforcing penalties imposed by statute on persons or corporations transacting business in the state, contrary to the provisions of the statute, is exclusively for the state, and that the state is the only party which can complain, and if the state does not complain the individual can not. See cases hereinbefore cited under 4, also Insurance Co. v. Mount Auburn, 37 Pac. Eep. (Wash.) No. 4.
    
      Gustave L. Stern for respondents.
    (1) First. A corporation created by one state can exercise none of the functions or privileges conferred by its charter, in any other state of the union, except by the comity and consent of the latter. The latter may exclude such corporations altogether, or may admit them upon such terms as it may choose, however onerous. Paulv. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410; Insurance Co. v. Needles, 113 IT. S. 574. Second. The act of April 21, 1891, is not a violation of article 1, section 8, clause 3, of the constitution of the United States, declaring that “congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Mfg. Co. v. Dix, 64 Fed. Rep. 406; M. & M. Co. v. Pennsylvania, 125 U. S. 181; Paul v. Virginia, 8 Wall. 168; Express Co. v. Seibert, 142 U. S.'339; Crutcher v. Kentucky, 141 U. S. 47. Third. The act of April 21, 1891, is not a violation of article 4, section 2, clause 1, of the constitution of the United States, declaring that, “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Corporations are not citizens within the meaning of this clause of the constitution. Paul v.. Virginia, 8 Wall. 168; M. é M. Co. v. Pennsylvania, 125 U. S. 181; Ducat v. Chicago, 10 Wall. 410. (2) The appellant failed to comply with the requirements of the act of April 21,1891, before filing this suit; the suit was, therefore, properly dismissed upon the motion of respondents, defendants below. Steam Heating Co. v. Cas Fixture Co. —Mo. App. Rep. 108; Williams v. Scullin, — Mo. App. Rep. —; Asphalt Co. v. New York, 30 N. T. Supp. 252; Machine Co. v. Caldwell, 54 Ind. 270; Machine Co. v. Hatfield, 58 Ind. 187; Daly v. Ins. Co., 64 Ind. 1; Singer Mfg. Co. v. Brown, 64 Ind. 548; Christian v. American etc. Co., 89 Ala. 198; Dundee, etc., Co. v. Nixon, 95 Ala. 318; 2 Cook on Stock and Stockholders [3 Ed.], sec. 694, and cases cited in note 2; 2 Morawetz on Private Corporations [2Ed.] secs., 661 -665, and secs. 959-960, and cases cited; Ins. Go. v. Heath, 95 Pa. 333; Health Ass’nv. Rosenthal, 55 111. 85; Haworth v. Montgomery, 91 Tenn. 16; Lumber Co. v. Thomas, 92 Tenn. 587. (3) This suit was properly dismissed, even though respondent complied with the law subsequent to the filing thereof. . The suit was prematurely brought and must abate. Asphalt Co. v. City, 30 N. T. Supp. 252; Lumber Co. v. Thomas, 92 Tenn. 587; Haworth v. Montgomery, 91 Tenn. 16; Singer Mfg. Co. v. Brown, 64 Ind. 548; Farrior v. Security Co., 88 Ala.-275. (4) Respondents are not estopped to plead in abatement of appellant’s suit, the failure of appellant to comply with the requirements of the act of April 21, 1891. In re Comstock, 3 Sawyer, 218, and cases cited; Bussell v. DeQrancl, 15 Mass. 37; Prescott v. Battersby, 119 Mass. 285; Stead-man v. Duhamel, 1 Com. B. 888; Keen v. Coleman, 39 Pa. St. 299; 2 Parsons on Contracts* [8 Ed.], star page 800, bottom page 926, and note W; Lotvell v. Daniels, 2 Gray, 161; Broivn v. McCime, 5 Sandf. 224; Cases cited under 2 and 3 heads of this brief; 1 Spelling on Private Corporations, page 107, sec. 89. (5) Where the meaning of a statute is clear and its provisions are susceptible of but one interpretation, that sense must be accepted as the law; its consequences, if evil, can only be avoided by a change of the law itself, to be effected by the legislature, and not by judicial construction. Sutherland on Statutory Construction, p. 315, see. 238, and cases cited in note number 2, to same. When the words of a provision are plainly expressive of an intent, not rendered dubious by the context, no interpretation can be permitted to thwart that intent; the interpretation must declare it, and it must be carried into effect as the sense of the law. Sutherland on Statutory Construction, p. 315, see. 238, and cases cited in note 4, to same.
   Barclay, J.

Plaintiff brought an action against defendants, August 25, 1893, to recover upon certain notes and accounts for goods sold and delivered, amounting to a total of more than $3,400. The action was in usual form, accompanied with an attachment under which some property 'of defendants was seized on the same day.

The summons was served on defendants, September 11, 1893.

The writs were returnable to the October term, 1893. At that time the defendants 'appeared, and moved the court to dismiss the cause on the ground that the plaintiff had omitted to comply with the conditions prescribed by the act of 1891, concerning foreign corporations. (Laws, 1891, p. 75.) The motion specified the particular- facts, showing the alleged omission. But it is not necessary to recite them at the moment.

The trial court sustained the motion and dismissed the cause. The plaintiff appealed after the usual formalities.

The motion, which formed the basis of the judgment on the circuit, was submitted on an agreed statement of facts. We need not quote it at length. The substance of it is that the plaintiff was a corporation, duly organized under the laws of Iowa, at all the dates mentioned in the case, and that it had not complied with the requirements of section 2 of the act of 1891, before beginning this action.

After the action was brought, the company did comply fully with said act in every particular, September 6, 1893, long before any motion, answer or plea was filed by defendants. On the date last mentioned the company received from the secretary of státe the certificate of authority to do business, described in the second section of the act.

On these facts the question is whether or not the omission of the company to meet those requirements, before action brought, totally defeats its right to maintain the action.

The terms of the statute thus brought under construction are found in the third section which provides that .all such corporations which shall neglect or fail to comply with the conditions of the law shall be subject to a fine of not less than $1,000 tobe recovered before any court of competent jurisdiction; * * * “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, either legal or equitable, in any of the courts of this state, upon any demand, whether arising out of contract or tort.”

At the time the motion to dismiss was filed, plaintiff had fully met the demands of the law. But it did not meet them before beginning the action. That is •all there is in the objection to the proceeding as made by the motion to dismiss.

The statute does not, in express terms, forbid the bringing of an action by such a company. It declares that it can not “maintain” an action, not having complied with the law.

What was the paramount object of the enactment? Not to exclude such concerns from participation in the business done in Missouri; but to compel a compliance' with certain conditions by them. Those conditions were imposed with a view, probably, to place foreign and domestic companies on a footing of equality in the field of commerce.

The object of the law was rather to induce observance of those conditions than to deprive any foreign corporation of a right of action, or other property.

Keeping the general purpose of the law in view, what are we to understand by the word “maintain,” as used in the third section. As its structure suggests, it signifies, literally, “to hold by the hand;” hence (in ordinary use) “to uphold, to sustain, to keep up”. While in pleading it is defined to mean, “to support what has already been brought into existence.” Anderson’s Law Diet.

It is nothing new to the law that a party may maintain an action although at its outset a legal barrier to it existed. This is illustrated by the law touching the defense of another action pending, which defense, though good when put of record, may be defeated by a dismissal of the prior action and a statement of that fact by way of reply to the answer containing that defense. Warder v. Henry (1893), 117 Mo. 530 (23 S. W. Rep. 776); 1 Encycl. Pl. and Pr. 755.

It is not necessary at this time to consider whether this statute should receive a broad or narrow construction at our hands,or whether it should be viewed as penal or remedial. It certainly must have a fair and reasonable reading, and should not be enlarged beyond its natural meaning to accomplish the forfeiture of a' right of action.

No corporation, having failed to obey this law, can maintain an action. The corollary is that, when it has complied, it may maintain the action. The prohibitory command does not reach the right to begin the action. We should not broaden the language to destroy that right. There is a well defined distinction between beginning and maintaining an action,. viewed with reference to the facts of the controversy now before .us

We are bound to assume that the word “maintain” was chosen to express the exact shade of meaning intended by the lawmakers. It does not, with its present context, seem to us to include also the word “begin.” Philpott v. Jones (1834), 2 Ad. & El. 41.

We are of opinion that the learned trial judge was in error in sustaining the motion to dismiss, under the terms of the law, without entering into any of the constitutional questions as to its validity. The judgment is reversed and the cause remanded for further proceedings.

Brace, O. J., and Macearlane and Robinson, JJ., concur.  