Cook v. Trovatten
| Decision Date | 11 June 1937 |
| Docket Number | 31019. |
| Citation | 274 N.W. 165,200 Minn. 221 |
| Parties | COOK v. TROVATTEN et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; John W. Boerner, Judge.
Action by Ann J. Cook against Rollef A. Trovatten, as Commissioner of Agriculture and Dairy and Food of the state of Minnesota and another. From orders sustaining general dumurrers of defendants to her petition, plaintiff appeals.
Affirmed.
Syllabus by the Court .
The duty imposed by Laws 1931, c. 394, on the commissioner of agriculture, generally to enforce the law against wholesale dealers in produce (in this case one unlawfully doing business without a license), involves the exercise of judgment and discretion and so is not in the class of ministerial official duties, nonperformance of which may result in liability to one proximately damaged by the nonfeasance.
William W. Pye, of Northfield, for appellant.
Davis Michel, Yaeger & McGinley, of Minneapolis, for respondents.
Action against defendant Trovatten, as commissioner of agriculture, and defendant New Amsterdam Casualty Company, as surety on his official bond, wherein the complaint encountered a general demurrer by each defendant. From the orders sustaining the demurrers, plaintiff appeals.
Plaintiff's case, as made by the complaint, is in substance this: The Austin Poultry & Egg Company, Inc., had been engaged in business as a licensed wholesale dealer. Its license and bond expired May 31, 1935. Quoting from the complaint, the Austin Company ‘ on June 4, 1935, applied to the said commissioner [defendant Trovatten] for a renewal thereof.’ He ‘ made an order requiring it [the Austin Company] as a condition before granting such license, to file a bond in the sum of $5,000 in conformity with the statute.’ Laws 1931, c. 394.‘ Said bond has never been filed and said Austin Poultry & Egg Co., Inc., was not licensed to carry on the business of wholesale dealers after May 31, 1935.'
Allegations follow that the Austin Company continued business without license and held itself out as a licensed dealer; that while carrying on such unlicensed business defendant Trovatten ‘ knew during all of said time’ that it ‘ was continuing to carry on a wholesale business as aforesaid’ and that he ‘ failed and neglected to take action to prevent said corporation continuing said unlawful business' and failed ‘ to enforce the law or to exercise the authority vested in him’ by statute.
Knowing that said Austin Company were wholesale dealers, plaintiff had sold it poultry at various times. She knew that by law such wholesale dealers were required to be licensed and bonded and that the Austin Company ‘ had formerly been licensed and bonded,’ but ‘ did not know that its license and bond had expired and that it was being allowed to continue its business without a license or a bond.’ Her damage arises from her sale in November, 1935, to the Austin Company of turkeys of the value of $5,734.50, no part of which has been paid. There is an allegation also that the Austin Company is ‘ insolvent and unable to pay its debts.'
The theory of the complaint is that, by reason of the facts stated, defendant Trovatten, as commissioner of agriculture, has been guilty of a breach of official duty of such nature that for the damage to plaintiff both he and his surety are liable. The latter's bond was furnished under Mason's Minn.St.1927, § 6023, requiring it to be ‘ conditioned for the faithful performance of his duties' by the commissioner.
It appears from the complaint that Mr. Trovatten refused to license the Austin Company upon its failure to furnish the bond required. So the question is whether the commissioner of agriculture and his surety are liable to plaintiff for her loss in dealing with the Austin Company while, unlawfully, it continued business to the knowledge of the commissioner.
The wrongdoing of which plaintiff accuses the commissioner is one of omission rather than commission. So the liability, if any, is for nonfeasance. The violation charged is not of the precise official duty to exact a bond (Laws 1931, c. 394, § 4), for it appears that the commissioner refused to license the Austin Company without one. The nonfeasance, therefore, on which plaintiff's case must rest, is the alleged failure of the commissioner to perform his general, executive duty to enforce the law against unlicensed ‘ dealers at wholesale in produce.’ Laws 1931, c. 394, §§ 3 and 17. Nothing of malicious or willful character is averred against Mr. Trovatten.
By Mason's Minn.St.1927, § 6025, the commissioner ‘ is authorized, if upon investigation he is satisfied that the laws of the state * * * have been violated, to cause to be instituted in his own name as commissioner or in the name of the state, actions in the proper court, to secure punishment of the guilty party.’ By section 6026 the Attorney General is required ‘ to assign a deputy to act as advisor for the Commissioner of Agriculture, and to institute and maintain the actions herein provided for, when sufficient evidence is available to warrant the institution of such proceedings.'
By Laws 1931, c. 394, under which the Austin Company had been licensed and which regulates such ‘ dealers at wholesale,’ the commissioner of agriculture is charged, section 17,
Thus it is clear that the duty generally to police dealers at wholesale, such as the Austin Company, and to enforce the laws applicable to them, does not rest alone upon the commissioner of agriculture. Necessarily, particularly as to legal proceedings, all he can do is to invoke the aid of the state's legal department, either by reference to the Attorney General or the proper county attorney. But we neither consider nor decide whether plaintiff...
To continue reading
Request your trial