State ex rel. Standard Oil Co. v. Blaisdell

• Decision Date: 20 September 1911
• Citation: 132 N.W. 769,22 N.D. 86
• Court: North Dakota Supreme Court

132 N.W. 769

22 N.D. 86

STATE EX REL. STANDARD OIL CO. v. BLAISDELL, Secretary of State

Supreme Court of North Dakota

September 20, 1911

Appeal from District court, Burleigh county; Winchester, J.

Application by the Standard Oil Company for a writ of certiorari to Alfred Blaisdell, as Secretary of State. From a judgment for defendant, relator appeals.

Reversed.

Reversed.

Alfred D. Eddy, Robert W. Stewart, and Ball, Watson, Young, & Lawrence, for appellant.

Andrew Miller, Attorney General, and C. L. Young, Assistant Attorney General, for respondent.

SPALDING J. FISK, BURKE, and GOSS, JJ., concur. MORGAN, Ch. J., did not participate.

OPINION

SPALDING, J.

This appeal involves proceedings taken under chapter 258 of the Laws of 1907. The act in question reads as follows:

"Sec 1. Any person, firm, or corporation, foreign or domestic, doing business in the state of North Dakota and engaged in the production, manufacture, or distribution of any commodity in general use, that shall intentionally, for the purpose of destroying or preventing competition, discriminate between different sections, communities, or cities of this state, by selling any such commodity at a lower rate or price in one section, community, or city, or any portion thereof, than is charged for such commodity in any other section, community, or city, after equalizing the distance from the point of manufacture, production, or distribution and freight rates therefrom, or who shall wilfully, for the purpose of such discrimination and unfair competition, refuse to sell any commodity in general use, and in the manufacture, production, or distribution of which such person, firm, or corporation may be engaged, to any other person, firm, or corporation which may desire to purchase the same, and who shall comply with all reasonable regulations of such person, firm, or corporation, and who shall tender payment therefor,--shall be deemed guilty of a misdemeanor.

"Sec. 2. If any complaint is made to the secretary of state that any corporation chartered in this state, or authorized to do business therein, is or has been guilty of unfair discrimination within the terms of this act, it shall be the duty of such secretary to at once institute an inquiry as to such discrimination, giving the corporation complained of notice of such complaint and an opportunity to be heard, and if, in the opinion of such secretary of state, any corporation, foreign or domestic, shall have been guilty of any such unfair discrimination under the terms of this act, the said secretary shall so find, and shall make a record of such finding upon the records in his office, and shall at once forfeit the charter of such corporation, if it be a domestic corporation, or, if it be a foreign corporation, he shall immediately revoke and forfeit its permit to do business in this state.

"Sec. 3. If, after the revocation of such charter in the case of a domestic corporation, or of its permit if it be a foreign corporation, any such corporation shall continue or attempt to do business within this state, it shall be the duty of the attorney general of this state, by a proper action commenced in the name of the state, to oust such corporation from any and all business of any kind or character within the state of North Dakota.

"Sec. 4. Any firm, person, or corporation violating any of the provisions of this act, shall upon conviction thereof forfeit to the state of North Dakota a sum not less than $ 200 nor more than $ 500 for each and every violation of this act, said sum to be recovered by action commenced by the attorney general in the name of the state of North Dakota in any court of competent jurisdiction. All sums so collected shall be credited to the general school fund of this state.

"Sec. 5. Nothing in this act contained shall in any manner be construed as repealing, or in any manner altering, any other act or part of act heretofore adopted by the legislature of this state, but the remedies herein provided shall be cumulative to all other remedies now existing."

On the 15th day of April, 1908, the attorney general of the state filed with the secretary of state an unverified document, called "a complaint," wherein, among other things, it was stated that complaint had been made and evidence furnished him showing that the Standard Oil Company, a corporation of the state of Indiana, had violated the provisions of said chapter by discriminating between different sections of this state in the prices of commodities sold by it, and that he, as attorney general, charged the Standard Oil Company with having violated said chapter by such discrimination, "in this, that said Standard Oil Company aforesaid has on divers and different dates during the year 1908 charged dealers and consumers in this state for commodities sold by the said company, to wit, oil and gasoline, different prices for the same quality of such oil and gasoline; that said company charged higher prices per gallon for the same grade of oil and gasoline in one locality of this state than it did for the same quality of oil and gasoline in another locality of this state, at equal distances from the place of shipment, and in which the freight rates for shipping there were the same," and asking the secretary of state to serve notice on said Standard Oil Company of Indiana, "apprising them of such charges herein, and setting a time and place at which they may appear and show cause, if any they have, why the certificate of authority issued to said company on the 23d day of December, 1895, authorizing them to do business in the State of North Dakota, as a foreign corporation, should not be revoked and forfeited." Upon the same day the secretary of state issued and mailed to the said Standard Oil Company notice of such complaint, and that he was about to institute an inquiry as to such alleged discrimination, and ordering it to appear before him at his office in the city of Bismarck on the 1st day of June, 1908, at 10 o'clock in the afternoon, and show cause, if any there be, why the benefits, privileges, and permission to do business in this state, as given by law to foreign corporations, should not be immediately revoked and forfeited. On the 26th day of May, 1908, Honorable W. H. Winchester, Judge of the Sixth Judicial District, granted an order to show cause, returnable on the 1st day of June, 1908, why a writ of certiorari should not issue commanding said secretary of state to certify fully to that court, and to annex to such writ of certiorari a transcript of the record and proceedings had before such secretary of state in the matter referred to, that his proceedings thereon might be reviewed by such court. Such order to show cause was based upon the affidavit of W. P. Cowan, a vice president of the Standard Oil Company, a corporation, wherein he alleged the incorporation thereof, the granting to it of permission to do business in the state of North Dakota according to the laws thereof in 1895, and its compliance in all respects with such laws. He then sets out in his affidavit the proceedings pending in the office of the secretary of state to which reference has been made, and that, upon calling upon that official for a certified copy of all documents or writings filed in his office in connection with the charges referred to as a basis therefor, he was informed by said secretary of state that no other papers or documents than the complaint of the attorney general were on file therein. He also alleges that the complaint filed with the secretary of state by the attorney general does not state any violation of said chapter 258 by or on the part of said Standard Oil Company, in that it does not set forth or state any specific instance or cause of violation, or aver any facts upon which a conclusion could be found that said law had been violated, and does not attempt to set forth or charge that any alleged violation of the terms of said act was done intentionally for the purpose of destroying or preventing competition, to discriminate between different sections, communities, or cities of North Dakota, and that the secretary of state was exceeding his jurisdiction in issuing and serving the order to show cause referred to, in that his acts were without authority of law, and that he was exercising powers and authority not conferred upon him and wholly judicial in their nature; that, unless prevented by an order of the court, such secretary would proceed to a so-called inquiry or investigation, and in deponent's belief would pretend to revoke or cancel said corporation's authority to do business in this state. He shows the great extent of the business of the Standard Oil Company in this state, the nature and value of its property therein, and asserts other grounds for claiming the proceedings taken and the law invalid, none of which is it necessary to detail here. On the return day of the order to show cause, the Honorable T. F. McCue, Attorney General, appeared for the secretary of state, and moved to quash the application for the writ of certiorari on each of several grounds, denying the correctness of the contention of the relator. He also made return, setting forth the proceedings had, and alleging that he had in all things complied with the provisions of the statute referred to. Upon argument based upon the files in the case, the affidavit of said Cowan, and the return of the secretary of state, the writ was denied and the order to show cause quashed, and the proceedings had at the instigation of the relator dismissed. Judgment was entered accordingly. From this judgment the relator is here on appeal.

The appellant filed an elaborate brief in this court more than two years ago. No brief was ever filed on the part of the secretary...