dissenting.
I agree with the majority holding that the complaints state a cause of action under ORS 59.115(l)(a).
However, I do not agree with the majority holding that the three-year statute of limitations specified in ORS 59.115(5) does not apply to this suit. In my view, the court’s opinion for all practical purposes emasculates the latter section of the statute.
The majority purports to rely upon the Supreme Court decision in Hartford Acc. and Ind. Co. v. Ankeny, 199 Or 310, 261 P2d 387 (1953). However, Ankeny is distinguishable from the case at bar both on its facts and due to a crucial subsequent change made by the Oregon legislature in the predecessor of ORS 59.115 in effect at the time Ankeny was decided.
At the time of Ankeny, the predecessor of ORS 59.1151 made tender of the security to the seller by the purchaser a condition precedent to the cause of action *744granted by that statute. Under the facts in Ankeny, the injured parties were unable to make such tender, having been victims of fraud by criminal conversation and not having received their ordered securities. Thus that court went on to hold that there existed a cause of action on the bond based upon fraud separate from that granted by the predecessor of ORS 59.115. The court pointed out that the predecessor of ORS 59.115 was not the exclusive remedy, but was "an additional statutory remedy to defrauded purchasers * * *.”199 Or at 323 (emphasis supplied). It also held that the separate remedy on the bond available to defrauded purchasers was governed by the six- or possibly ten-year statute of limitations.
Here, however, there is no claim or proof of fraud, and, as stated, the current statute no longer makes tender a condition precedent. ORS 59.115(2)(b). The record in the instant case does not reveal whether the injured persons, none of whom are parties to this proceeding, were able to make tender, but such inability, even assuming it existed, no longer necessitates initiation of a separate cause of action on the bond. Thus I would refuse to extend Ankeny to a nonfraud case where as here a right of action under ORS 59.115* 2 is available.
*745Accordingly, I would apply to the case at hand the three-year statute of limitations specified in ORS 59.115(5). The plaintiffs’ action on the bond is derived from ORS 59.115. Furthermore, ORS 59.175,3 relied upon by the majority, is silent as to any applicable statute of limitations. Thus it seems clear to me that *746the legislature intended ORS 59.115(5) to govern this case.
Because the latest violation by Pacific Securities Company occurred December 12,1969, and each action was commenced on April 19, 1973, more than three years had passed, and each action is therefore barred.
Since I would conclude that although a cause of action was stated under ORS 59.115(l)(a), the actions were barred by the three-year statute of limitations as provided in ORS 59.115(5), I would not reach the other assignments of error and would reverse. Accordingly, I respectfully dissent.
The predecessor of ORS 59.115 in effect in 1951 provided:
"(1) Every sale made in violation of any of the provisions of this act shall be void, and the person, issuer or dealer making such sale and every director, officer or agent of or for such seller, if such director, officer or agent with knowledge of such violation shall have personally *744participated or aided in any way in making such sale shall be jointly and severally liable to such purchaser in an action at law in any court of competent jurisdiction upon tender of the securities sold or of the contract made for the full amount paid by such purchaser, with interest, together with all taxable court costs and reasonable attorney’s fees. No action shall be brought for the recovery of the purchase price after three years from the date of such sale * * *.
"(2) Any person having a right of action against a dealer or salesmen under this section shall have a right of action under the bond provided in section 80-113.
***** *.” § 80-119, OCLA.
ORS 59.115 provides:
"(1) Any person who:
"(a) Offers or sells a security in violation of the Oregon Securities Law or of any rule or order of the commissioner, or of any condition, *745limitation or restriction imposed upon a registration under the Oregon Securities Law.
"(5) No action or suit may be commenced under this section more than three years after the sale.
"(6) Any person having a right of action against a broker-dealer, or against a salesman acting within the course and scope or apparent course and scope of his authority, under this section shall have a right of action under the bond provided in ORS 59.175.
ORS 59.175 provides:
"(1) A broker-dealer or investment adviser may register or renew a registration by filing an application. A salesman shall be registered or his registration renewed by the filing of such an application by the broker-dealer, investment adviser, issuer or owner of securities desiring to employ the salesman.
"(2) The application shall contain such information and exhibits as the commissioner may require upon forms furnished or approved by the commissioner and shall be accompanied with the fees required by subsection (7) of this section. The surety bond required by subsection (5) of this section shall be filed before registration is granted.
"(3) The commissioner may require an applicant for registration as a broker-dealer or investment adviser, including the applicant’s partners, directors, officers or any person occupying a similar status or performing similar functions, and any person directly or indirectly controlling such applicant and a person for whom application for registration as a salesman is made, to pass an examination on such person’s knowledge and understanding of the Oregon Securities Law and the securities business.
"(4) The commissioner may make such further examination of the applicant and its affairs as he deems advisable and may require by rule or order that the applicant publish an announcement of the application in such manner as the commissioner may specify.
"(5) Every applicant for registration as a broker-dealer or investment adviser shall file with the commissioner a corporate surety bond satisfactory to the commissioner running to the State of Oregon in the sum of $10,000.
"(6) If the application, surety bond and fees are in order and the commissioner is satisfied that the application should not be denied upon one or more of the grounds specified in ORS 59.205 to 59.225, the commissioner shall issue an order of registration or renewal.