The opinion
BEATTY, C. J., concurring.
I concur in the judgment ■and generally in the opinion of the court. As to the effect of the call or assessment of October 27, 1899, if a cause of action had accrued to the corporation by reason of the call alone, I think the statute of limitations would have commenced runming at the date of delinquency fixed by the resolution, and if it had once commenced running I do not think the subse■quent rescission of the call would have extended the time for
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commencing the action. But it requires something more than, a mere call to establish a right of action under the statute. The call must be followed by a resolution to proceed by action regularly adopted after the assessments have become delinquent. Until the adoption of such a resolution no stockholder-can be sued. This was the point, and the only point decided, in
Bank of National City
v.
Johnston,
133 Cal. 185 , as will more clearly appear from the Department decision reported in 60 Pac. 776 , where the facts are more clearly stated. Until, the resolution to proceed by action is adopted the whole matter remains, as it was before, in the discretion of the trustees, and they may either rescind the first call and afterwards-, adopt another, or complete their right of action under the first call by resolving to enforce it by that method.
It may be added that if the statute had been set in motion at the date of the first call in October, 1899, the action was, not barred by subdivision 1 of section 338 of the Code of Civil Procedure, and it is by no means clear that this is not an action upon a statutory liability within the meaning of that section.
Besides what is said in the opinion of the court in regard to. the effect of the repeal of the Bank Commission Act, I am of the opinion that it was beyond the power of the legislature-by the repeal of that act to destroy the only remedy available to the creditors of the corporation for the enforcement of their contract rights.
Henshaw, J., concurred.
Rehearing denied.