On Rehearing.
Opinion by
Mr. Chief Justice McBride.1. The petition for rehearing challenges the constitutionality of Section 6707, L. O. L., being Section 5, p. 43, Session Laws of 1903, on the ground that it imposes a tax upon the whole capital stock of a foreign corporation, irrespective of whether it is employed in this State. That the imposition of such tax is unconstitutional is clearly held in the following cases: W. U. Telegraph Co. v. Kansas, 216 U. S. 1 (30 Sup. Ct. 190: 54 L. Ed. 355) ; Pullman Co. v. Kansas, 216 U. S. 56 (30 Sup. Ct. 232: 54 L. Ed. 378); Ludwig v. W. U. T. Co., 216 U. S. 146 (30 Sup. Ct. 280: 54 L. Ed. 423) ; Atchison, Topeka & Santa Fee R. Co. v. O’Connor, 223 U. S. 280 (32 Sup. Ct. 216: 56 L. Ed. 436) ; Mulford Co. v. Curry, 163 Cal. 276 (125 Pac. 236).
*5172. Whatever might be our own opinion, the contention presents a federal question in regard to which the holding of the Supreme Court is controlling; and we therefore acquiesce in the conclusion reached in the cases above cited, and hold that, in so far as the section in question requires the payment of a license fee based upon the whole amount of the capital stock of a foreign corporation, whether employed within the State or not, it is void. But it does not follow that because this part of the section is void that the whole section is void. Its provisions are not so interdependent that other requirements cannot be separated from the single invalid provision. A corporation is required to file with the Secretary of State a statement, showing, among other things, the location of the principal office, the names and post office addresses of its president, secretary, treasurer, managing agent, and attorney in fact in this State; and a failure or refusal to file such report or to pay the license fee subjects it to a fine of $100. It will be noticed that this penalty may be incurred (1) by failure to file the report; or (2) by failure to pay the license fee. If the corporation pays the license fee, but fails to make a report complying with the provisions of the section, it is amenable to the prescribed penalty; or, if it makes the report, but fails to pay the fee, it is also held liable. The fact that the requirement to pay the license fee is void because of a conflict with the Federal Constitution does not render void other requirements not so in conflict.
3. No penalty is expressly denounced by the succeeding sections for failure to appoint a resident attorney; and, following the rule announced in Bank of British Columbia v. Page, 6 Or. 431, we would be compelled to hold that a contract made by a corporation before appointing an attorney in fact is absolutely void. But the law abhors forfeitures, and we are disposed to construe Section 6707, L. O. L., and Section 6726, L. O. L., together. The section last cited requires the appointment of such attorney, and *518the preceding section requires a report to the Secretary of State, giving the name of such attorney. Taking the act by its four corners and construing the sections together, we think it may reasonably be deduced that the corporation must appoint the attorney, and report that fact to the Secretary of State in its annual statement. If it has neglected to appoint the attorney, it cannot, of course, make the report required by law, and is liable to a penalty for its failure so to do. The law having prescribed the penalty by way of fine, the courts should not impose an additional penalty by way of forfeiture; the omission not being malum in se.
A, 5. The entrance fee of $50 required by the statute is not in conflict with any provision of the Federal Constitution, and is a reasonable requirement. The corporation has not paid nor offered to pay this fee, and its right to maintain an action in the courts of this State is suspended until such fee is paid. Section 6708, L. O. L. And this objection must be raised by plea in abatement. Section 6709, L. O. L.
6. The assignment of the note after maturity and especially an assignment made as in this case merely for the purposes of collection cannot confer on the assignee any better right than that of the payee at the time of the assignment. Plaintiff took the paper subject to all defenses which existed as against the original payee. The petition for rehearing seems to assume that we have held that the contract between plaintiff’s assignor and defendant is absolutely void, and the note also void; but such was not our holding. Plaintiff can enforce payment in our courts whenever his assignor or principal complies with our laws and pays the $50 entrance fee which the statute requires.
The suit should abate without prejudice to another action upon plaintiff’s assignor complying with the statute in so far as held valid herein.
Former Opinion Approved.