Cofman v. Ousterhous

Decision Date12 August 1918
Citation168 N.W. 826,40 N.D. 390
CourtNorth Dakota Supreme Court

Certiorari to review the action of the District Court in revoking a creamery license.

Appeal from the District Court of Burleigh County, Honorable, W. L Nuessle, Judge.

Judgment for respondents. Petitioner appeals.


F. E McCurdy, for appellant.

Regulations and licenses under the police power of the state can only be exercised where it has a real substantial relation to the public health, public safety, and public morals, and unnecessary or unreasonable restrictions upon the use of private property should not be imposed. Only an imperative necessity should prompt or warrant the revocation of a license issued for a lawful business. 17 R. C. L. 530; People v. Ringer, 27 L.R.A. (N.S.) 528 and note.

The regulations of the Dairy Commissioner on the modes and manner of handling cream by a licensee must be reasonable, fair, and just, and he cannot arbitrarily revoke a license, without substantial evidence of an intentional and material violation of the license. Tiedeman, Pol. Power, 273, 35 L.R.A. (N.S.) 717.

If the statute is given the construction placed upon it by the respondents, then it is unconstitutional and void in that it permits of the taking of property without due process of law. 6 R. C. L. § 44, p. 49.

William Langer, Attorney General, and Edward B. Cox, Assistant Attorney General, for respondents.

Where a license is issued to the owner of a cream station by the Dairy Commissioner of the state, he may revoke same at any time, upon substantial evidence being submitted to him showing a violation of such license, and of the rights and privileges accruing thereunder. Comp. Laws 1913, § 2654.

Where it affirmatively appears that the inferior court, officer, or tribunal of whose acts complaint is made, has not exceeded its jurisdiction, the writ of certiorari will not lie to review the discretionery action of such body, officer, or tribunal. St. M. & Man. R. R. Co. v. Blakemore, 17 N.D. 67; State ex rel. Noggle v. Crawford, 24 N.D. 8, 40 Am. St. Rep. 34.

"A party to an action who has actually appeared may not question the validity of the statute on which the action is brought because of its failure to provide for a sufficient notice of the proceedings." 12 C. J. 773; Quinn v. State, 82 Miss. 75, 33 So. 839; Tennessee Fertilizer Co. v. McFall, 163 S.W. 806; 19 Ann. Cas. 181; C. B. & Q. R. Co. v. Neb. (U.S.) 42 L.Ed. 948; Security Trust & S. V. Co. v. Lexington, 51 L.Ed. 204.

Neither is appellant in a position to question the constitutionality of the statute. A person who invoked the benefits of an unconstitutional law, and actually receives them, cannot in subsequent litigation deny its constitutionality. Appellant voluntarily applied for and obtained the license; he accepted and retained the benefits resulting from the possession and use of such license. He cannot now question the validity of the law. M. etc. R. R. Co. v. Nester, 3 N.D. 480, 57 N.W. 510; State v. Seebold, 192 Mo. 720, 91 S.W. 491; 19 Ann. Cas. 183.

The power of the legislature to enact a law for the purpose of state regulation, and requiring that the obtaining of a license shall be a condition precedent to carrying on a certain business, trade, calling, or occupation, is unrestricted except as to limitations found in the state or Federal Constitutions. 6 R. C. L. 217; 17 R. C. L. 501.

To the extent that property or business is devoted to the public use, or is affected with a public interest, it is subject to regulation under the police power. 12 C. J. 922; 17 R. C. L. 541; 6 R. C. L. 202, 210, 217, 220; 51 L.R.A. 151; 17 R. C. L. p. 503, §§ 28, 213; 12 C. J. 922, 924, § 432, and cases cited in note 67 thereunder.

Such a law is not enacted solely for the public good or public health or morals, or for sanitary purposes, but it extends to fair dealing, and is intended to prevent fraud and cheating in connection with the particular calling, business, or occupation for which the license is issued and where public interest is affected. 17 R. C. L. 542; State v. Robinson, 6 L.R.A. 339, 43 N.W. 833; State v. Armour & Co., 27 N.D. 177, 145 N.W. 1033; 6 R. C. L. 207; Runge v. Glerum (N.D.) 164 N.W. 284.

The power to revoke such a license as is here under consideration is conferred upon the Dairy Commissioner of the state, and the law is a valid enactment. Sess. Laws 1917, chap. 105; Christ Church v. Philadelphia County, 16 L.Ed. 602; Tomlinson v. Jessup, 24 L.Ed. 204; Humphrey v. Pegues, 21 L.Ed. 326; Doyle v. Continental Ins. Co., 24 L.Ed. 148; Gray v. Connecticut, 41 L.Ed. 80.

Such a licensee takes his license subject to such conditions as the legislature deems proper to impose, and one of the conditions is that it may be revoked by the officer named. Such a license is not a contract, and a revocation of it does not deprive the owner of any property, immunity, or privilege. Com. v. Kinsley, 133 Mass. 578; 15 R. C. L. 474; 17 R. C. L. 476, 554, 556; 25 Cyc. 625.

BRUCE, Ch. J. CHRISTIANSON, J., ROBINSON, J., (dissenting).



This is an appeal from an order of the district court of the sixth judicial district denying the petition of the appellant for a writ of certiorari to review the action of the dairy commissioner, J. J. Ousterhous, in revoking a license of the appellant to conduct a cream station at Hazen, North Dakota, and to review the action of the commissioner of agriculture and labor, J. N. Hagen, in sustaining the said revocation.

The statutes under which the action sought to be reviewed was taken are as follows:

Section 2835, Compiled Laws 1913: "There is hereby created a bureau of the department of agriculture and labor to be known as the dairy department, which is hereby created for the purpose of promoting, improving and regulating the dairy products of the state and to establish and enforce proper rules and regulations pertaining thereto."

Section 2836, Compiled Laws 1913: "The commissioner of agriculture and labor is hereby authorized and directed to appoint a deputy in his department who shall be known as the dairy commissioner, and shall be the official head of the dairy department."

Chapter 103, Laws 1917:

Sec. 1. "It shall be unlawful for any person to sample or test milk, cream, or any other dairy product excepting merchants dealing in manufactured butter for the purpose of determining the commercial value of such product when bought or sold, without first having secured a license from the state dairy department and such license shall be conspicuously displayed in his place of business. Provided that in case of sickness or necessary absence, said person may appoint a substitute for six days and for a longer period subject to approval of the dairy commissioner, but said person shall be responsible for the acts of said substitute. This license shall be granted to those who shall have completed a course in milk and cream testing in any recognized college or dairy school, or to those who shall pass an examination under the direction of the state dairy department and satisfactorily demonstrate that they are properly qualified and competent to use such test.

"The dairy commissioner shall have the authority to revoke any license issued under the provisions of this act if the holder is convicted of a failure to comply with the State Dairy Laws. Said license shall be granted for a period of one year by the dairy department upon payment of a fee of two dollars ($ 2) of which shall be returned in case of failure to pass said examination. In the case of renewal of a license, a fee of one dollar ($ 1) shall be paid.

"The fees collected under the provisions of this act shall be paid into the state treasury, monthly, by the dairy commissioner to be credited to the dairy department and to be used for conducting said examinations."

Section 2854, Compiled Laws 1913: "It shall be unlawful for the owner, manager, agent or employee of any creamery or cheese factory to manipulate, underread or overread the Babcock test, or any other contrivance used for determining the quality or value of milk."

Chapter 105, Laws of 1917: "Section 284 of the Compiled Laws of 1913 is hereby amended and re-enacted so as to read as follows:

"Every person, firm or corporation owning or operating a creamery cheese factory, renovating or process butter factory, or cream station in this state, shall be required before beginning business, or within thirty days thereafter, to obtain from the dairy commissioner a license for each and every creamery, cheese factory, renovating or process butter factory or cream station owned or operated by said person, firm or corporation, which shall be good for one year. The fee for such license shall be ten dollars, and no license shall be transferable. Each license shall record the name of the person, firm or corporation owning or operating the creamery, cheese factory, renovating or process butter factory, or cream station license, its place of business, the location thereof, the name of the manager thereof and the number of the same. Each license so issued shall constitute a license to the manager or agent of the place of business named therein.

"It shall be the duty of every person, partnership, firm or corporation, or association holding a license to operate in any plant which dairy products are handled commercially, to post in a conspicuous place such license under which they are operating, together with a summary of the dairy laws which shall be prepared and sent out from the office of the...

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