there appears to be no sound reason why the Legislature may not accomplish the same result by amendment or repeal. The obnoxious feature of the system of excise taxation as embodied in the two statutes, considered in their conjoint effect, may be removed by the Legislature by amendment eliminating, or by repeal of, the offending part. If the law, as thus left, after amendment or partial repeal, is such as would have been valid as an initial enactment, it is valid as to all matters coming within its future operation. That which previously was unenforceable and invalid becomes transformed into a binding and enforceable statute. The Legislature under these circumstances may repeal the statute which alone imported any element of illegality into the scheme of taxation, and thereby render the scheme valid because resting upon an unobjectionable statute left unrepealed and unchanged. That is what the General Court did by the enactment of St. 1918, c. 76. The inference is irresistible that the express purpose of the General Court in repealing St. 1914, c. 724, by the terms of St. 1918, c. 76, was to validate the rest of the foreign corporation excise tax law and to restore thereby said § 56 to its former position as a vital and effective piece of legislation. After the repeal of said c. 724, said § 56 stood as before the enactment of said c. 724, unaffected and impregnable in respect of its validity and conformity to the Constitution. It was unnecessary for the Legislature to re-enact said § 56 in order that it might become a valid statute. It stood. Its legality and constitutionality and present force revived by the simple repeal of St. 1914, c. 724. As has been pointed out, this was the manifest design of the Legislature. We know of no reason why that design cannot be given effect.

People v. De Blaay, Madera County, 142

There are numerous decisions to this effect in other jurisdictions. Sweet v. Syracuse, 129 N. Y. 316, 349, 350. Allison v. Corker, 38 Vroom, 596. Ferry v. Campbell, 110 Iowa, 290, 299. State v. Cincinnati, 52 Ohio St. 419, 446. 137 Mich. 402, 405. Mariposa County v. Cal. 50, 57. Lynch v. Murphy, 119 Mo. 163. Jacksonville, Tampa & Key West Railway v. Adams, 33 Fla. 608, 612. Walsh v. State, 142 Ind. 357. (See Copeland v. Sheridan, 152 Ind. 107.) Commonwealth v. Chesapeake & Ohio Railway, 118 Va. 261, 275, 276. Sauter v. Shoenthal, 54 Vroom, 499, 503. Patterson v. Close, 55

Vroom, 319, 322. St. Louis & San Francisco Railroad v. Tolbert, 47 Okla. 228, 234. Beatrice v. Masslich, 47 C. C. A. 657, 661. Columbia Wire Co. v. Boyce, 44 C. C. A. 588. American Fidelity Co. of Montpelier v. State, 128 Md. 50, 54, 55. Hammond v. Clark, 136 Ga. 313. See note in 4 Ann. Cas. 920, and cases there collected. This principle seems to us to be upheld by In re Rahrer, 140 U. S. 545, 565. See also in this connection Spencer v. Merchant, 125 U. S. 345; Donley v. Pittsburgh, 147 Penn. St. 348; Fontenot v. Young, 128 La. 20. If and so far as there is anything in Schwartz v. Oshkosh, 55 Wis. 490, 495, at variance with our conclusion upon this point, it is contrary to the current of authority and we do not follow it.

It follows that, if the question is approached from this second point of view, said § 56 was in full force and effect when the excise here attacked was assessed and collected.

3. This conclusion appears to us to be supported by the further consideration that it is not correct to say that St. 1914, c. 724, was void or that the two statutes considered together as making one scheme were void. If all the property of a foreign corporation were located wholly within the Commonwealth and not engaged in interstate commerce, the ground for the decisions in 246 U. S. 135 and 146 is inapplicable and the excise with respect to such a corporation would be valid. Statutes may be constitutional in their operation with respect to some persons or states of fact, and unconstitutional as to others. Sears v. Board of Aldermen of Boston, 173 Mass. 71, 79, 80. A statute, valid and enforceable within a certain limited field, but unconstitutional and unenforceable in a wider field, may by amendment or law removing unconstitutional features be extended into the wider field. See In re Rahrer, 140 U. S. 545, 565.

4. There is force in the view that a statute, enacted by the Legislature with all prescribed formalities but declared to be contrary to the Constitution by a court of last resort, is nevertheless a legislative act until repealed by the same power by which it was enacted, that such a statute, although often referred to as void, is speaking with strict accuracy, until repealed by the Legislature, simply unenforceable, that the question of its validity so long as it is not repealed by the Legislature may be raised at a subsequent time between other parties and the court may re

verse its earlier opinion unless it remains satisfied with the opinion first expressed or feels bound by the doctrine of stare decisis. The decisions of the Supreme Court of the United States in the Legal Tender Cases, 12 Wall. 457, 553, 572, upholding in their entirety the legal tender acts of Congress and overruling Hepburn v. Griswold, 8 Wall. 601, 606, wherein the same court had previously declared those acts unconstitutional with respect to certain classes of debts, give color to the contention that a statute once declared unconstitutional by a court of last resort may nevertheless at a later period be held enforceable because not in conflict with the fundamental law. Allison v. Corker, 38 Vroom, 596, 600. If that be so, it would seem to follow inevitably that the Legislature may cut out the offending parts of one of its own statutes without reenacting the unoffending parts. It appears to us unnecessary to discuss or decide upon the soundness of this view and it is left entirely open.

5. The provisions of R. L. c. 8, § 4, cl. 1, to the effect that "The repeal of an act or resolve shall not revive any previous act or resolve," has no reference to such a case as is here presented. That clause merely changed the rule of the common law that, if a statute which repeals another is itself repealed, the first statute was revived without formal words for that purpose. Hastings v. Aiken, 1 Gray, 163, 165. Said c. 724 was not itself a repealing act.

6. Since said § 56 is still in force, we do not understand it to be contended that the excise was not valid. The petitioner was plainly within its terms. The case, so far as affected by the Constitution of the United States, is within the controlling authority of Baltic Mining Co. v. Massachusetts, 231 U. S. 68 and Cheney Brothers Co. v. Massachusetts, 246 U. S. 147. General Railway Signal Co. v. Virginia, 246 U. S. 500.

7. Since the excise tax was valid, it cannot be contended that the registration fee was not lawfully exacted. But even if the excise were illegally exacted, the registration fee could not be recovered. Lever Brothers Co. v. Commonwealth, ante, 22.

Petition dismissed with costs.

BOSTON TOW BOAT COMPANY vs. MEDFORD NATIONAL BANK

& another.

CHARLES F. ADAMS & others, trustees, petitioners.

Suffolk. December 3, 1918. - January 6, 1919.

Present: RUGG, C. J., LORING, BRALEY, & DE COURCY, JJ.

Limitations, Statute of. Corporation, Validity of indorsement upon certificate of stock. Contract, What constitutes.

When a purchaser of shares of stock of a corporation presents to the corporation an order for the transfer of the shares purporting to be signed by the owner of the shares, accompanied by a certificate representing them, and demands a new certificate in exchange, he impliedly represents that the signature is valid. If, upon the presentation of such an order and certificate, the corporation issues a new certificate as requested and, it afterwards appearing that the signature to the order was forged, is required to respond in damages to the owner of the shares, it has a right of action for breach of the warranty against the alleged purchaser to whom it issued the new certificate, although the alleged purchaser acted in good faith throughout the transaction.

The warranty above described is broken upon the issue by the corporation of the new certificate in reliance upon it, and any action founded upon such breach must be brought within six years thereafter or it is barred by R. L. c. 202, § 2. The presentation of such an order for transfer accompanied by the certificate representing the shares, upon which a new certificate is issued to the alleged purchaser, does not constitute a contract by the alleged purchaser to indemnify the corporation against loss or damage which it shall suffer in case the signature to the order is not genuine, which would not be broken until the loss or damage is suffered.

BILL IN EQUITY, filed in the Supreme Judicial Court on April 7, 1915, by the Boston Tow Boat Company, a Massachusetts corporation, against the Medford National Bank and the Medford Trust Company, seeking reimbursement for amounts which the plaintiff was compelled to pay by reason of the transactions described in the opinion. Also a

PETITION, filed in the Supreme Judicial Court on December 5, 1917, by the trustees of the Massachusetts Gas Companies, successors in title to the Boston Tow Boat Company, alleging its dissolution and seeking the appointment of a receiver under St. 1903, c. 437, § 53, as amended by St. 1905, c. 156.

The bill in equity was previously before this court, when it was decided, as reported in 228 Mass. 484, that the suit could not be maintained by the corporation more than three years after its dissolution. Thereafter the petition for a receiver above described was allowed, and a motion was filed by the receiver for leave to prosecute the bill in equity. The defendants in the suit in equity also filed a motion that the bill be dismissed. The motion of the defendants was denied and that of the receiver was allowed by Pierce, J. The case then was heard by the same single justice upon the merits and by him was reserved for determination by the full court.

T. Hunt, for the plaintiff and receiver.

J. E. McConnell, (E. T. McKnight with him,) for the defendants. DE COURCY, J. In May, 1902, the Medford National Bank held two promissory notes which purported to be signed by Susan M. Stuart, and also thirty-one shares of the stock of the Boston Tow Boat Company, standing in her name, as collateral security for the payment of the notes, accompanied by a blank transfer and power of attorney. In compliance with an order purporting to be signed by Mrs. Stuart, the bank sent the certificates of stock to its brokers to be sold, and they in turn sent them to Francis Henshaw and Company whose business it was to sell unlisted stocks at auction. Later the certificates for the thirty-one shares and the transfer and power of attorney with the names of the purchasers inserted were presented to the plaintiff, the Boston Tow Boat Company, and were cancelled and new certificates were issued in the names of the purchasers. Afterwards it was discovered that the signatures of Susan M. Stuart to the notes, the transfer and the order were forged; and she brought a bill in equity against the Boston Tow Boat Company. A decree was entered in her favor for $6,000, which was paid in April, 1915. See Pratt v. Taunton Copper Manuf. Co. 123 Mass. 110. The Medford National Bank had been notified to defend that suit. The Medford Trust Company in 1908 succeeded to the business of the Medford National Bank, taking over its assets and assuming its liabilities.

The first of these proceedings is a suit brought by the Boston Tow Boat Company to compel the bank and the trust company to refund the money it paid in satisfaction of Mrs. Stuart's execution, and the expenses incurred in defending her suit. It came before the