This is an action to recover damages for the breach of a contract alleged to have been entered into between the plaintiff and the defendant on the seventh day of March, 1918, by the terms of which the defendant agreed to employ the plaintiff to act as its exclusive agent or broker in the sale of its entire pack of canned fish and fish products during the term of five years from April 1,1918, and up to and including March 31,1923, and for which the plaintiff was to receive certain stipulated commissions from the net price of the product thus sold. It was alleged that the defendant had refused to perform and had repudiated said contract, to the plaintiff’s damage in the sum of $4,000. The defendant, in its answer, denied having entered into or executed any such contract or employed the plaintiff in any capacity whatever or agreed to pay plaintiff any commissions whatever or delivered to the plaintiff for sale, or otherwise, any of its fish product whatever. The answer contains certain other specific denials not material to the inquiry in this ease.

Prior to the trial of the action, the parties entered into a stipulation as to the facts of the ease, which by agreement was to constitute the findings of fact in the .case, and which was adopted by the court as such, and which stipulation reads as follows:

Upon the foregoing findings of fact the court rendered its judgment in the defendant’s favor, that the plaintiff take nothing by his action. It is from such judgment that the present appeal has been taken.

The sole question presented upon this appeal is as to the validity of said contract between the parties hereto. In view of the fact that it was purported to have been made and entered into on the part of said defendant at a time when its charter as a corporation was in a state of forfeiture for the nonpayment of its license tax, due January 1, 1917, under the provisions of the act of the legislature entitled “An act prescribing terms and conditions upon which corporations may transact business in this state, and providing penalties and forfeitures for non-compliance,” approved May 10, 1915. (Stats. 1915, p. 422.) This act was amended and practically reframed by an act of the legislature approved on May 11, 1917 (Stats. 1917, p. 371), which amendatory act contains certain changes in verbiage from the former act, hereafter to be noted.

'It is the contention of the appellant herein that notwithstanding the forfeiture of the charter and suspension of the powers of said corporation under either or both of these acts it continued to act and function as a corporation de facto subsequent thereto and as shown by the stipulated facts herein and that in the capacity of such de facto corporation it made and entered into the contract in question and that such contract was and is valid as the act and contract of such defendant corporation. The question thus presented is this: Can a de jure corporation whose charter has been forfeited, and whose powers and functions have been suspended under either or both of the foregoing acts of the legislature, continue to function as a de facto corporation so as to give validity to its acts and contracts entered into during the period of its forfeited charter and suspended powers? We are of the opinion that this question must be answered in the negative. The act of the legislature of 1915 states in its title that its purpose is that of “prescribing terms and conditions upon which corporations may transact business in this state.” It "provides in section 3 of said act that “no corporation heretofore or hereafter incorporated under the laws of this state or any other state, territory or foreign country shall do or attempt to do any intrastate business within this state by virtue of its charter or certificate of incorporation, without a state license therefor.” By section 4 of the act it is made the duty of every such corporation “to procure annually from the secretary of state, a license authorizing the transaction of such business in this state, and pay therefor the license tax prescribed therein.” The act then proceeds to fix the basis upon which the said corporate licenses shall be computed and then provides that “said license tax shall be due and payable to the secretary of state on the first day of January of each and every year. Such license tax shall be paid on or before the hours of 6:00 o’clock p. m. on the first Monday of February of each year and if not so paid shall, at said hour become delinquent.” By section 7 of said act it is provided that:

Section 12 of said act provides:

By section 13 of said act it is provided:

In section 14 of said act the manner is provided by which a corporation which has suffered the forfeiture prescribed in the act may be restored to its former corporate status and have reissued to it a license entitling it to do intrastate business in this state. This section contains the following proviso:

The foregoing provisions of the act of 1915 were reenacted in substance from the act of 1905 (Stats. 1905, p. 493), which act has been repealed in 1913. (Stats. 1913, p. 380.) This court has had occasion in several recent cases to discuss the foregoing features of this and the earlier act, and their effect upon the existence and powers of corporations which have suffered the forfeiture of their charters under its terms. In the case of Crossman v. Vivienda Water Co., 150 Cal. 575 [ 89 Pac. 335 ], this court held that a corporation which had been dissolved under the provisions of the Code of Civil Procedure relating to the voluntary dissolution of corporations had its existence so far terminated as a legal entity as to render it incapable of suing or being sued as a corporate body or in its corporate name. The court says (p. 580): “It is dead, and can no more be proceeded against as an existing corporation than could a natural person after his death. There is no one who can appear or act for it, and all actions pending against it are abated, and any judgment attempted to be given against it is void. As to this, all the text-writers agree, and their statement is supported by an overwhelming weight of authority.’’ (Citing many cases.) In the case of Newhall v. Western Zinc Mining Co., 164 Cal. 380 [ 128 Pac. 1040 ], an action had been brought against the defendant corporation for goods sold and delivered. The defendant appeared and answered as a corporation, its answer being verified by one of its directors. The answer admitted, but failed to deny, the corporate capacity of the defendant. The action was tried upon the pleadings as thus framed, and a judgment rendered against the corporation for a considerable sum of money. Thereafter a stockholder of the corporation appeared and moved to set aside such judgment, upon the ground that prior to the commencement of said action the charter of the corporation had been forfeited under the act of 1905 by its failure to pay its license tax; which motion, being denied, he appealed to this court, which decided that the motion should have been granted, holding, upon the authority of Crossman v. Vivienda Water Co., supra, that a corporation whose existence has been terminated, whether by judicial decree or by forfeiture of its charter under the act of 1905, cannot be sued and cannot exercise any corporate powers. The court says: “For that act clearly and unmistakably declares and provides for a forfeiture not dependent upon judicial determination and decree, but a forfeiture which is self-acting and operating. The language of the act does not even permit a doubt upon this question. It not only declares the day and the hour when the forfeiture shall arise, but it makes it a penal offense for any officer or agent thereafter to exercise any corporate powers on behalf of the corporation and, finally, it provides that the winding up of the corporate affairs is imposed upon the directors or managers of the corporation who ‘are deemed to be trustees of the corporation whose power or right to do business is forfeited. ’ These trustees and not the corporation may sue or ‘may be sued in any of the courts of this state by any person having a claim against said corporation. ’ ” In that case it was argued that the corporation having acted as such defending the action, was estopped and hence its stockholders were also estopped from setting up its nonexistence in an attack upon the judgment. But the court said: “To this it must be replied that the law authorizes the directors, and not one of them, to act as trustees. It empowers them as trustees to sue and be sued, but not to answer suits in the name of the defunct corporation. Brangier’s answer was, therefore, not only without authority of law, but in direct violation of the law. And, finally, if, notwithstanding these plain violations of the law, assent be given to the statement of respondent that ‘the business of the Western Zinc and Mining corporation was continued by defending this suit in its name, ’ it must inevitably result that the trustee who thus did continue the business of the Western Zinc Mining Company not only did so in violation of his powers and of the express mandate of the statute, but made himself criminally liable for his conduct, under section 9 of the amended act” (pp. 383, 384). This subject again came before this court in the case of Aalwyn’s Law Institute v. Martin, 173 Cal. 21 [ 159 Pac. 158 ], The plaintiff, alleging itself to have been a stockholder in the Ocean Shore- Bailway Company, a corporation, prior to the forfeiture of its charter under the act of 1905, sought, on behalf of said corporation, to have the title to certain of its property quieted as against certain persons who were formerly its directors but who had become trustees of the defunct corporation upon the forfeiture of its charter. This court denied the plaintiff that relief, holding that: “When a corporation has failed to pay its license tax, and a forfeiture of its charter has been declared, it ceases to be a corporation. (Newhall v. Western Zinc Mining Co., 164 Cal. 380 [ 128 Pac. 1040 ].) The title to the property formerly owned by the corporation vests in the former directors as trustees. The complaint in the case at bar does not seek to have the title of the trustees quieted, but' on the contrary asks that the title of the Ocean Shore Railway Company be quieted, and the whole action is based upon the alleged ownership of the property by the said company. But the company is dead and may not own property. Even if we concede the plaintiff’s capacity to sue, it is seeking relief upon a false theory and a general demurrer to its complaint will lie.” In the case of Rossi v. Caire, 174 Cal. 74 [ 161 Pac. 1161 ], the question of the effect of the forfeiture of the charter of a corporation under the act of 1905, and also under the amendment thereto in 1907 (Stats. 1907, p. 746), upon the ownership and administration of its property, came up for consideration, this court holding that the corporation having ceased to exist under the provisions of said acts it was no longer capable of holding the title or possession of its former property, which thereafter belonged to the persons who were its stockholders at the time it ceased to be a corporation. In the later case of Rossi v. Caire, 186 Cal. 544 [ 199 Pac. 1042 ], the court went somewhat more fully into the question of the status of a corporation which had suffered the forfeiture of its charter under the act of 1905 and the acts amendatory thereto, and in so doing said:

In the case of National Supply Co. v. Flack, 183 Cal. 124 [ 190 Pac. 634 :], the status of corporations which had failed to pay their license tax under the act of 1915 arose, and this court, citing as authority therefor the foregoing cases, held that the failure to pay a license tax ipso facto terminated the corporate existence and that a judgment rendered against a corporation after the forfeiture of its charter was void.

Thus far in the foregoing line of decisions the court has been dealing with the status of corporations under the act of 1905 and the several acts amendatory thereto, and in the latter ease applied the same doctrine to the status of corporations whose charters had been forfeited under the act of 1915. The United Tuna Packers Corporation, defendant herein, had, as we have seen, suffered the forfeiture of its charter in March, 1917, and under the terms of this later act. Thereafter and during the year or more which followed, according to the agreed statement of facts and findings of the trial court, the persons who had formerly constituted its board of directors undertook to continue to function as such, notwithstanding the forfeiture of the charter of the corporation. In the month of May, 1917, at a purported meeting of said board of directors of said defunct corporation, by successive resignations and elections, the entire membership of said board of directors was changed, all of its former members resigning, and in their place and stead three other persons being elected directors of the corporation and two vacancies being left unfilled. These acts were done prior to the adoption of the act of the legislature of 1917 (Stats. 1917, p. 371), which effected certain changes in the act of 1915, the effect of which will be hereinafter considered. These attempted changes in the personnel of the board of directors of the defunct corporation were therefore done, or attempted to be done, while the corporation was, as to its status, in the condition described by the language of the decisions of this court above quoted. Subsequent to the taking effect of the act of 1917, above referred to, it was these persons, together with two others who had been added to their number by the same method of election, who assumed as directors of said corporation, to enter into and execute the contract with the plaintiff, which forms the basis of this action. The question has arisen in the case as to the effect of the enactment of certain provisions of the act of 1917, which, while it purports to he an amendment, amounts to a revision of the act of 1915 upon the status of this corporation at the date of said contract. Under section 7 of the act of 1915 the charters of all corporations which failed to pay their license tax were declared to be “forfeited to the State of California.” Under section 11 of the act of 1917 it was declared that “the corporate rights, privileges and powers of every domestic corporation which has failed to pay, etc., shall ... be suspended and incapable of being exercised for any purpose or in any manner.” (Except for, certain limited purposes.) The act-further declares that after such suspension “every person who attempts or purports to exercise any of the rights, privileges or powers of any delinquent domestic corporation except as permitted by this act, or, who transacts or attempts to transact any intrastate business in this state in behalf of any forfeited foreign corporation, shall be guilty of a misdemeanor,” and further provides that “every contract made in violation of this section is hereby declared to be void.” There is some discussion in the briefs of counsel herein as to the effect of the foregoing changes in the verbiage of the law affected by the adoption of the act of 1917, but in view of our conclusions herein we do not think these verbal changes in the law material to the matter in controversy here, particularly in view of what was said by this court in the case of Ransome Crummey Co. v. Superior Court, 188 Cal. 393 [ 205 Pac. 446 ], wherein these changes in the language of the law were noted and discussed. In that case the suspension of the powers of the corporation had occurred under the act of 1917 and the' court significantly says: “During the time its taxes were unpaid, petitioner was shorn of all rights save those expressly reserved by the statutes. The right to institute or maintain actions is not included in this reservation, but is denied to corporations as a part of the penalty”; and the court further declares:

In view of the language of the foregoing decisions of this court and of the terms of the statute under which the charter of this corporation had been forfeited for the nonpayment of its license tax, we are of the opinion that during the period of such forfeiture of its charter, said corporation could not become, be or act as a corporation de facto so as to permit the execution of or give any validity to the contract upon which the plaintiff herein relies as the basis of this action. The corporation, when it had failed to pay its license tax and the forfeiture of its charter had resulted, ceased to be a corporation. It was dead. It had no longer a board of directors or other body of officers or agents. The persons who had been its directors prior to its decease ceased to be such and became the trustees of an express trust, with such powers only as were expressly conferred by the statute declaring the forfeiture of its charter, but with no power to select, appoint, or authorize others to take their places or perform their duty as such trustees. Under the express terms of the statute it was declared to be unlawful for such a defunct corporation to transact any intrastate business whatever, and every attempt of any of its former officers to exercise any of- the former powers of the corporation or to transact any such business for or on behalf of such corporation after and during the period of such forfeiture of its charter was made a misdemeanor. Under the terms of the statute of 1915, the contracts of such a corporation were not expressly declared to be void, but such we think was the effect of the language of the statute making them unlawful. However, under the statute of 1917, section 11, the omission to expressly so declare was supplied by the express statement that “every contract made in violation of this section is hereby declared to be void.” It is to be noted that the contract upon which the appellant herein counts and relies was entered into after the statute of 1917 had come into effect and that it was attempted to be made and entered into on behalf of such defunct corporation by a set of persons who were not its directors at the time of its demise, but who had attempted to be made such by the members of its former board of directors, whose powers to act as such had ceased and who at the time of such purported change possessed only the limited powers of trustees of an express trust under the terms of the statute, in which the power to choose others to administer their trust was not embraced. To hold that such a corporation could, after its death, after it had ceased to have officers, directors, agents or attorneys; after it had been stripped of all its property; after it had become incapable of suing or being sued or of having judgments obtained against it; after its every attempted act in the way of the transaction of any intrastate business had been expressly made unlawful and after those of its former officers or agents who attempted to do or transact any act of business on its behalf during the period of such forfeiture of its charter had been declared guilty of crime, still function as a corporation de facto would be to practically nullify both the language and intent of the statute under which the forfeiture of its charter and powers had been declared, and would be, in effect, to cast upon the state the burden of instituting judicial proceedings in the nature of quo warranto against every such corporation to have decreed the forfeiture which the statute had itself expressly declared. The appellant herein, however, cites section 358 of the Civil Code as supporting his contention and also strongly relies upon the cases of McCann v. Children’s Home Society, 176 Cal. 359 [ 168 Pac. 355 ], and First National Bank etc. v. Penning, 28 Cal. App. 267 [ 151 Pac. 1153 ], as sustaining his claim that the respondent, having continued to act as a corporation, after the forfeiture of its charter, and having entered into this contract while purporting so to act, is estopped to deny its corporate existence and powers in this action. He also cites cases from other jurisdictions to the same effect. It is to be noted that the cases upon which the appellant relies are in no instance cases in which the acts of the corporation relied upon to sustain its de facto status in relation to the particular transaction sued upon, were acts done or attempted to be done or powers exercised or sought to be exercised in express violation of law. They are, without exception, cases where through some defect or oversight in attempting to organize or continue to do business as a corporation de j%vre the institution had nevertheless in good faith assumed to act as such in entering into the particular transaction. Such a state of things is well illustrated by the case of McCann v. Children’s Home Society, supra, in which, manifestly, the institution purporting to act as a corporation was violating no express statute in so doing, but was merely assuming to do de facto and in good faith that which it could have done de jure but for the defect in its attempted organization or exercise of corporate powers. But that is not this case since the law has expressly declared that a corporation, the charter of which has been forfeited under the terms of the statute in relation to the payment of license fees cannot do any act either de jure or de facto and that any attempt whatever so to do is unlawful, and that those of its former officers or agents making such attempt shall be guilty of a crime. As to section 358 of the Civil Code it must be held to have application only to such corporations as are not forbidden by positive law to do business as de facto corporations and cannot be given application to the attempted acts of corporations wffiose charters have been forfeited and whose acts thereafter have been expressly made unlawful by the terms of the statute declaring such forfeiture.

The judgment is affirmed.

Wilbur, J., Lawlor, J., Lennon, J., Sloane, J., and Waste, J., concurred.

Shaw, C. J., dissented.

Rehearing denied.

In denying a rehearing the court filed the following opinion on August 31, 1922 •.