Cavanaugh v. Patterson , 41 Colo. 158 ( 1907 )

Mr. Justice Gabbert

delivered the opinion of the court:

The report for 1901 was due sixty days from the first day of January of that year. Directors of a domestic corporation during the period it is in default, in failing to file the annual report required by the statute, become personally liable for the indebtedness incurred by such corporation during that period. The statute in question has been so construed in numerous decisions of the court of appeals and this court, among which we cite Colo. Fuel & Iron Co. v. Lenhart, 6 Colo. App. 511; and Austin v. Berlin, 13 Colo. 198. New York has a similar statute, and the courts of that state have given it a similar construction.—Boughton v. Otis, 21 N. Y. 261; Shaler & Hall Quarry Co. v. Blies, 27 N. Y. 297.

Prom our conclusion under the facts we are considering both defendants were liable, and the district court erred in holding to the contrary. No certificate of paid up stock was filed. The annual report required by the statute had not been filed when the indebtedness sued upon was created, and both defendants were directors of the debtor corporation at this time. The fact that Mr. Patterson was not a director until after the expiration of the period when the annual report for 1901 should have been filed did not relieve him from the liability imposed by the statute, for indebtedness incurred thereafter under his administration while the corporation was in default. The duty devolved upon him, when he became a director, to see that the law with respect to the filing of the annual report was obeyed, and having neglected this duty, he became liable for the penalties imposed by the statute for this neglect.

April 6, 1901, the general assembly passed an act providing for a different kind of report than that mentioned in § 491, and by this act repealed that section, without any saving clause as to penalties which had attached thereunder. — Section 11, Laws 1901, p. 121. Counsel for defendant urges that because there was no saving clause to the repeal of .§ 491, that, therefore, all rights under this statute fell with its repeal. This is the general rule, but it bas been abrogated by statute passed in 1891 (Laws 1891, p. 366), which provides, that:

“The repeal, revision, amendment or consolidation * * * of any * * * section * * * of any statute shall not have the effect to release, extinguish, alter, modify, or change, in whole or in part, any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such statute, unless the repealing, revising’, amending or consolidating act shall so expressly provide; * * *”

This act does not attempt to interfere in any manner with future legislation, but provides that the repeal of a statute prescribing a penalty shall not prevent a recovery of such penalty unless the repealing statute so provides. Its purpose was to save the right to penalties incurred when the repealing statute was silent on that question, and hence, by virtue of its provisions, the repeal of a statute imposing penalties under certain conditions, without any saving clause, does not prevent the recovery. of such penalties when it appears that the repeal and subsequent statute are not inconsistent with its purpose.—Wilson v. People, 85 Pac. 187; 36 Colo. 418; State v. K. C., Ft. S. & G. R. Co., 32 Fed. 722.

The new act providing for reports of corporations merely goes more into detail as to what corporations shall file such reports, and what they shall contain. It is entirely silent with respect to the effect of repealing § 491 on penalties incurred thereunder, but relates to the same general subject which that section covers, provides penalties for failure to file the reports thereby prescribed, is in no sense inconsistent with the general saving statute of 1891, and indicates no intent on the part of the legislature to interfere with any rights which attached under § 491 prior to its repeal and the enactment of a substitute. We are, therefore,'of the opinion that the. right to recover the penalties incurred by. the defendants from their failure to file the annual report of the corporation of which they were directors, was saved by that statute.

Counsel for appellees challenges the finding of the trial court as to the dates when they became directors. It appears to be conceded that Mr. Taggart became a director on March 5th, 1901, and therefore, for reasons already stated, it is immaterial whether he became a.director on that date instead of February 5th preceding, as found by the court. On behalf of Mr. Patterson, it is contended that he did not become a director until May 1st, 1901. Of course, if that is true, under our construction of the statute he would not be liable, because the indebtedness sued upon was incurred before that date—Austin v. Berlin, supra; but we are precluded from investigating the question of the date when, according to the evidence, he became a director, because no exception was taken to the finding of the trial court on this issue, nor cross-error assigned thereon. It appears, however, that there may be some merit in the claim on behalf of Mr. Patterson, that he did not become a director until May 1st, 1901, and we therefore decline to direct the trial court to enter judgment against the defendants, as requested by counsel for plaintiff, but shall remand the cause for a new trial as to both defendants.

The judgment of the district court is reversed and the cause remanded for a new trial.

Reversed and remanded.

Chief Justice Steele and Mr. Justice Camp-' bell concur.