State v. Charlesworth

• Decision Date: 13 December 1932
• Citation: State v. Charlesworth, 141 Or. 290, 16 P.2d 1116 (Or. 1932)
• Parties: STATE v. CHARLESWORTH. [*]
• Court: Oregon Supreme Court

16 P.2d 1116

141 Or. 290

STATE v. CHARLESWORTH. ^[*]

Supreme Court of Oregon

December 13, 1932

In Banc.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

John A Charlesworth was convicted of selling in course of repeated and continuing transactions certain corporate securities without having obtained a permit so to do, and he appeals.

Reversed.

Jay H. Stockman and John R. Latourette, both of Portland (O. P. Coshow and John F. Conway, both of Portland on the brief), for appellant.

Barnett H. Goldstein, Sp. Asst. Atty. Gen. (Lotus L. Langley, Dist Atty., of Portland, on the brief), for the State.

BELT J.

Defendant was convicted of the crime of selling "in the course of repeated and continuing transactions" certain corporate securities without having obtained a permit so to do from the corporation commissioner of the state of Oregon.

John A. Charlesworth was the organizer and chief executive officer of the Pacific National Syndicate.On August 20, 1930, Corporation Commissioner McCallister issued a permit to the above corporation to sell $1,000,000 of its installment loan certificates.On April 29, 1931, Corporation Commissioner Mott wrote the following letter to the Pacific National:

"You are advised that PermitNo. 5030 of the Pacific National Syndicate authorizing the sale of $1,000,000 Accumulative Installment Loan Certificates, is today suspended for cause, and all rights thereunder cease as of this date.

"You are also advised that the following list of agents of the above mentioned company are suspended as of this date.[List of Agents.]

"Very truly yours,

[Signed]James W. Mott,

"Corporation Commissioner."

Upon receipt of the above letter and after protesting to the corporation commissioner, the defendant wrote one of the company agents as follows:

"James A. McDonough, 117 Martin Street, Ashland, Oregon.

"Completely disregard Mott's letter cancelling your license.Keep right on working.Will write you fully Monday.

"[Signed]J. A. Charlesworth."

The serious question in the case is whether the record discloses a suspension or revocation of the permit.It is clear that defendant participated in repeated sales of corporate securities after receipt of the letter from the corporation commissioner.But does such unregistered letter constitute an order of suspension or revocation within the meaning of the statute?It appears without contradiction that no order of suspension was ever entered in the records of the corporation commissioner.The sole document upon which the state relies to establish one of the essential elements of its case, viz., a suspension or revocation of the permit, is the letter above set forth.

Section 25-1316,Oregon Code 1930, provides that: "Whenever it shall appear to the corporation commissioner that the holder of any permit issued by the corporation department for the sale of any security or securities is insolvent or conducting his or its business in such manner as to jeopardize the interests of creditors or investors, or shall fail, neglect or refuse to file any circulars, papers, statements, prospectuses, documents or other advertising matter or reports, or to pay any of the fees required or provided by this act, without satisfactory reason therefor, or has committed any fraudulent transaction, or has violated any provision of this act, the commissioner may suspend or revoke such holder's permit. ***"

Whenever the commissioner has made a final order, the person aggrieved thereby may appeal to the circuit court of Marion county(section 25-1310,Oregon Code 1930)"by serving upon the commissioner within 20 days after the date of the entry of such order" a written notice of such appeal.Thereafter it is the duty of the commissioner under the statute, upon demand, to certify and deliver to appellant a "transcript of the record and of all papers on file in his office affecting or relating to such order."

Section 25-1323,Oregon Code 1930, pertains to the records kept by the corporation commissioner and requires such officer to "keep as records of his office books showing all acts, matters and things done by him under the provisions of this act."

It is plain that the suspension or revocation of a permit by the corporation commissioner must be in accordance with the procedure specified in the above statutory provisions.Mailing by registered mail a copy...