essential to create a liability upon stockholders, the validity Appeal from the Third District Court, Salt Lake County, Hon. H. H. Rolapp, Judge. Action to recover certain stock sold for delinquent assessment, and to have the sale declared void, and to obtain a re-issue of said stock. From a judgment for plaintiff, defendant appealed. Affirmed. Messrs. Stephens and Smith, for appellant. Whether the failure of the officer to file his oath of office makes his acts void. Of the board which acted in levying the assessment, two, E. W. Genter, president and director, and E. L. Talbot, director, were original officers of the company, and filed their oaths in the beginning; they were officers both de facto and de jure. 2 Cook on Corporations, 4th Edition, Secs. 624, 713; First Nat. Bank v. Layman, 130 N. Y., 366. Of the other three members of the board, Forrester and Thompson had served during the previous term; namely, from July 12, 1897, until July 12, 1898, and J. W. Delano, only, was a recently elected officer, having taken the place of George Havercamp at the July 12, 1898, election. It is the appellant's contention that this board had power to levy an assessment and cause a sale of the stock upon which said assessment was not paid, nowithstanding the fact that three of its members had not filed their oaths of office with the county clerk as directed by law. It is well settled that the acts of de facto officers of private corporations, whether illegally elected, or ineligible to office, are valid and binding upon the corporation. 5 Am. and Eng. Ency. of Law, 94, and numerous cases cited in the note; 2 Cook on Corporations, 4th ed., Secs. 623, 713, and cases cited in the notes; Charitable Asso. v. Baldwin, 1 Metc. (Mass.), 359; Ohio & M. R. Co. v. McPherson, 35 Mo., 13; S. C., 86 Am. Dec., 128; Thompson on Corporations, Sec. 3899; Vandenberg v. Connoly, 18 Utah, 125; Dayton v. Borst, 7 Bosw., 115. The acts of those publicly exercising the functions of private corporations are upheld on the same principle which upholds the acts of de facto public officers and de facto corporations. Thompson Corp., Sec. 3893; Rockville Turnp. Road v. Van Ness, 2 Cranch, C. C. 449; 11, 986 Fed. Cases; see note Am. and Eng. Ry. Cases, 160. The right of these directors to their office, and to perform the duties of the same, can not be questioned, except in a direct proceeding to which they are parties. Schwab can not in this collateral manner attack the right of the officers to levy the assessment. Dispatch Line v. Bellemy 37 Am. Dec., 203; Bank of U. S. v. Dandridge, 12 Wheat, 64; Central Trust Co. v. Wabash, 23 Fed., 838; Hussey v. Smith, 25 Lawyers' Co-operative Edition, U. S. Sup. Ct. Reports, 314 (Utah case); People v. Sassovich 29 Cal., 480; Gumberts v. T. A. E. Co, 28 Ind., 181; Coles v. Allison, 23 Ill., 437; Gallison v. Hedrick, 15 Gratt., 244; People v. Stevens, 5 Hill, 616; People v. Albertson, 8 How. Pr., 363; Hooper v. Goodwin, 48 Me., 79; Plymouth v. Painter, 17 Conn., 585; Petersilea v. Stone, 119 Mass., 465; S. C., 20 Am. Rep., 335. The statute regarding the filing of the oaths of the officer is directory, not mandatory. Jackson v. Crown Point Co., 59 Pac., 238; Endlich on Statutory Construction, Sces. 433-436; Citing Dreyfus v. Bridges, 45 Miss., 247. Messrs. Pierce, Critchlow & Barrette, for respondent. The persons who levied the assessments were de facto directors at most, and therefore could not levy an assessment and forfeit a stockholder's shares. 4 Thompson on Corporations, Sec. 4524; Moses v. Tompkins, 84 Ala., 613, S. C., 4 South, 763; Garden Gulley v. McLister, 1 App. Cases, 39; 2 Cook on Corporations, Sec. 618, p. 1168; People's Ins. Co. v. Westcott, 14 Gray, 440; 2 Cook on Corporations (4th ed.), Sec. 625; Tyne v. Brown, 74 L., §Rep., 293 (1896). It necessarily follows that in an action to avoid the malicious consequences of the acts of de facto boards in levying assessments, that the attack is made collaterally on the board of directors. If a wrongful board has done a wrongful act, a court of equity will correct it if it is within its power. 17 Am. and Eng. Ency., p. 52; Mechanics' Nat. Bank v. Burnet Mfg. Co., 32 N. J. Eq., · 236; Johnson v. Jones, 23 N. J. Eq., 216; Nathan v. Tompkins, 82 Ala., 437; S. C., 19 Am. and Eng. Corp. Cases, 336; Moses v. Tompkins, 84 Ala., 613; S. C., 21 Am. and Eng. Corp. Cases, 634. 1 A statute authorizing a forfeiture without judicial proceedings must be pursued with the greatest strictness. Cook on Corporations, Sec. 129; Garden Gully Co. v. McLister, supra; Germantown Ry. Co. v. Fitler, 60 Pa., 124; S. C., 100 A. D., 546. The power given to forfeit stock must be strictly pursued, and if any restriction or limitations imposed by the charter have been disregarded, the forfeiture is invalid. Morris v. Metalline Land Co., 44 A. S. R., 614; S. C. 164 Pa. St., 326. A corporation has no inherent power to forfeit or sell shares of stock owned by delinquent stockholders. That is not a common-law remedy, and can only be exercised when it is expressly conferred by the statute, and can only be exercised in the manner prescribed by law. Budd v. Multnomah Street Ry., 3 A. S. R., 169; S. C., 15 Ore., 413; Westcott v. Min. M. Co., 23 Mich., 145; Cook on Stock and Stockholders, Sec. 123; 2 Thompson on Corporations, Sec. 1766. If the condition precedent prescribed by law be not strictly complied with, the proceedings to declare the forfeiture are absolutely void. Westcott v. Minn. M. Co., supra; People ex rel. Pulford v. Fire Dep. Detroit, 31 Mich., 458; Lewey's Island Ry. Co. v. Bolton, 48 Maine, -; S. C., 77 Am. Dec., 236; Bray v. Farwell, 81 N. Y., 600. STATEMENT OF FACTS. The defendant corporation was organized July 12, 1896, with a capital stock of 200,000 shares of a par value of $1.00 each. Its articles of incorporation provided for the election of a board of five directors, to hold their office for one year, and until their successors were elected and qualified. The annual meeting for electing officers was required to be held on the second Monday of July in each year. Three directors constituted a quorum of the board of directors. At its first meeting, July 12, 1896, the offi cers of the corporation were duly elected, filed their oaths of office, and qualified under the statute. At a subsequent annual election of officers on July 12, 1898, Mr. E. W. Genter was elected president and director, J. L. Thompson, vice-president and director, George E. Forrester, secretary, treasurer, and director, E. L. Talbot and J. W. Delano, directors. Neither of these parties qualified or took the oath of office required by the statute, but each continued to act in the position to which he had been elected without objection from any source. Only two of the directors who were elected in 1898 had taken the oath of office in 1896. The plaintiff subscribed for and owned 20,000 shares of the capital stock of the company, subject to payments thereafter to be made. On July 28, 1898, the said board of directors, last elected, consisting of Genter, Forrester, and Delano, levied an assessment of one half of one per cent per share on the capital stock, as provided by the articles of the association, payable September 13, 1898. Due notice of such assessment was given each stockholder. Plaintiff failed to pay said assessment, and after due notice his stock was sold to pay such assessment, the corporation being the chaser. On August 9, 1898, the plaintiff wrote to the president of the company, in substance, that he had come to the conclusion that it was impossible to keep up his assessments, as they would keep up indefinitely, and desired the president to dispose of his stock at some figure. The president of the company, on August 22, answered, urging the plaintiff to remain in the company and pay his assessment, also suggesting that plaintiff pay one half of the assessment and let the balance run another month, but that he would have the stock sold for him if he could find a purchaser. On October 4, the president again wrote plaintiff, advising him that the stock was sold to the company pur |