State ex rel. Ladd v. Dist. Court in & for Cass Cnty.

• Citation: 17 N.D. 285,115 N.W. 675
• Parties: STATE ex rel. LADD v. DISTRICT COURT IN AND FOR CASS COUNTY et al.
• Decision Date: 20 March 1908
• Court: United States State Supreme Court of North Dakota

17 N.D. 285

115 N.W. 675

STATE ex rel.LADD

v.DISTRICT COURT IN AND FOR CASS COUNTY et al.

Supreme Court of North Dakota.

March 20, 1908.

Syllabus by the Court.

The legality of the acts of the pure food commissioner, and the question whether he is exceeding the powers conferred upon him by the law under which he is authorized to act, may be tested in an action to enjoin him from the commission of acts alleged to be without authority.

A district court may properly entertain jurisdiction of an action brought by parties whose property is about to be destroyed by the pure food commissioner, and who will, from the nature of their business and other facts, be thereby subjected to a multiplicity of suits to enjoin him from unlawfully proceeding.

The pure food commissioner may be enjoined from distributing circulars or bulletins condemning the property of manufacturers as harmful and deceptive to the public, when the acts of the commissioner are in excess of the power or authority conferred upon him by law, and would cause irreparable injury.

The writ of prohibition will not issue against a district court to restrain it from further proceedings in an action to enjoin the pure food commissioner, when the issue in that court is the legality or illegality of the acts threatened by the commissioner, and the record leaves this question in doubt.

Application by the state, on the relation of E. F. Ladd, for a writ of prohibition to the district court of Cass county and Charles A. Pollock, judge. Temporary writ vacated, and application denied.Barnett & Richardson, Engerud, Holt & Frame, and T. F. McCue, Atty. Gen., for the relator. Ball, Watson, Young & Hardy, for defendants.

SPALDING, J.

On the 3d day of October, 1907, certain manufacturers of flour whose mills are located within this state commenced an action against Pure Food Commissioner E. F. Ladd in the district court of Cass county for the purpose of enjoining him from issuing or causing to be issued further circulars or bulletins condemning the flours manufactured by the plaintiffs in that action in the manner described in their complaint, and particularly the flour in the manufacture of which the process known as the “Alsop process” was employed, and from certifying to the county auditors the flours so manufactured by them as adulterated, and from seizing or causing to be seized such flours, and from instituting or causing to be instituted prosecutions against the plaintiffs therein under chapter 195, p. 315, Laws 1907. The complaint in that action among other things alleged that the plaintiffs therein were the owners of and engaged in operating flouring mills in various parts of the state, having a total capacity of 5,050 barrels of flour per day, and that they had for a long time prior to the commencement of such action been engaged in such business; that for the purpose of conducting such business, they had installed expensive plants aggregating in value many hundreds of thousands of dollars, and that they manufactured each year more than 50 per cent. of all the flour manufactured and used in the state; that complaint further alleged that the growing of wheat was the principal agricultural industry, and the milling of the same the principal manufacturing industry, of the state, and that the state produced more wheat and more flour than could be consumed by its people. That the wheat producers and millers must and do depend upon foreign markets for the sale of their product; that by reason of this fact they were forced into competition with the large mills of other states, and, unless able to manufacture flour under the same conditions as the mills of other states, they would be rendered unable to sell in competition with them; that within the past few years there had been adopted by the millers of the United States, Europe, and elsewhere a process for aging and conditioning flour at the time of its manufacture known as the “Alsop Process”; that such process had received general recognition and approval in all of the several states of the Union and in foreign countries, and was in general use by commercial mills throughout the United States, and by said plaintiffs in their respective mills, as well as by other millers of the state; that said process was used in the manufacture of about 80 per cent. of the flour manufactured within the state, and had been adopted by plaintiffs after thorough investigation, from which it was found that it did not render the flour so manufactured harmful, but, on the contrary, that it improved it; and that as a result of such investigation and the information thereby obtained the plaintiffs had installed said process within their mills at a very great expense. The complaint contained a description of the process and an allegation that nothing was used therein other than a flaming discharge of electricity and air, which matured and conditioned and slightly whitened in color and rendered more marketable the flour so manufactured, and made it more acceptable to the consumer, improved its bread-making qualities, and that no harmful ingredients were added, and no necessary constituent in whole or in part extracted, and that the flour so manufactured under said process did not deceive or tend to deceive the purchasing public. Such complaint also shows plaintiffs' claims as to the benefits derived by them and the public from the use of such process, particularly by reason of the saving made in storage and the ability of the millers to immediately market their product, saving to them and to the public the expense of storage during the period otherwise required for aging and conditioning the flour manufactured by them. The act of the Legislature commonly designated as the “Pure Food Law,” being chapter 195, p. 315, Laws 1907, is set out at length in such complaint, and it is alleged that Prof. E. F. Ladd was appointed commissioner and chemist thereunder, and that since about the 8th day of March, 1907, he had been exercising the authority enjoined upon him as such commissioner and chemist by said act, and that, pretending and assuming to act under the authority of the act of the Legislature referred to, he had issued and caused to be circulated through the mails a circular or bulletin directed against the flour manufactured by said plaintiffs, and had caused the same to be published in the newspapers in the state, such bulletins being entitled “Bleached Flour Warning,” and bearing date September 10, 1907; that in said bulletin he warned the manufacturers and the dealers that after October 1, 1907, the sale of flour described therein would be in violation of the pure food law of the state, and condemned the flours manufactured by said plaintiffs in the manner described. It also alleged that, assuming to act under authority of the act of the Legislature referred to, he was then threatening to institute criminal prosecutions against said plaintiffs and others, and to cause plaintiffs' property manufactured under said process to be seized and destroyed, and that he was threatening to, and would, under the assumed authority contained in section 9 of said act (page 318), certify to each of the county auditors of the state, and cause to be published in the several counties, a statement that their flours were adulterated, when, in fact, such flours manufactured under said process were not adulterated, and were not within the condemnation of said act. The nature of their business, and the great value of this process to them through enabling them to successfully compete with other mills, was shown. It was further alleged that, if prevented from continuing the use of such process, they would sustain irreparable injury, and that from the acts threatened to be performed by said Ladd, as aforesaid, great damage and loss would be sustained by said plaintiff, and that by reason thereof, and of the seizures threatened, they would be involved in a multiplicity of suits, and that they were possessed of no adequate remedy at law. It was then alleged that the flours manufactured by them under such process were not within the condemnation of said act of the Legislature, and not within the description contained within the bulletins and circulars issued and threatened to be issued by said Ladd, and that the provisions in said chapter were obnoxious to certain articles of the Constitution of the United States and the state Constitution.

The district court of Cass county issued a temporary restraining order, and an order to show cause against said Ladd why such restraining order should not be continued pendente lite. Ladd answered, denying generally the material allegations of the complaint, and also detailed his investigations of the subject of flour treated by the process described and his conclusions...