State v. Harkaway
| Decision Date | 09 July 1963 |
| Citation | 192 A.2d 619,105 N.H. 42 |
| Parties | STATE v. Aaron A. HARKAWAY, Turstee in Bankruptcy of Karanikas & Sons et al. |
| Court | New Hampshire Supreme Court |
William Maynard, Atty. Gen., and Alexander J. Kalinski, Asst. Atty. Gen., for the State.
McLane, Carleton, Graf, Greene & Brown and G. Marshall Abbey, Manchester, for Harkaway, trustee and for Hubbard Farms, Inc.
Velishka & Kozlowski, Nashua, for Ernest J. Savoie.
Harkaway, Ryan & Pappagianis, Nashua, for Jasper Poultry Farm.
Wiggin, Nourie, Sundeen, Nassikas & Pingree, Manchester, for Peerless Insurance Company.
The purchase, sale and transportation of poultry in this state has been regulated with increasing stringency since 1935. Laws 1935, c. 61. The controlling statute requires a license (RSA 344:1(1) as follows: 'An unlimited license to each person who shall furnish a bond with sufficient surety in an amount to be determined by the commissioner, but not to exceed ten thousand dollars, payable to the state of New Hampshire and conditioned for the faithful performance of all legal obligations incurred in the buying and selling of live poultry the meat or product of which is to be sold or used for food; such bond shall be held by the commissioner to satisfy and court judgment obtained or execution issued against any licensee because of failure to perform such legal obligations * * *.'
The principal issue in this case is whether the proceeds of the statutory bond should be distributed only to New Hampshire poultry producers. This is the nub of the fourth and fifth questions which were transferred by the Superior Court. The legislative history of RSA ch. 344 is not particularly helpful in determining what class of claimants are to be protected by the statutory bond and no rules and regulations have been issued under RSA 344:12. However the statute is geared to regulating dealers and processors who buy, sell and transport poultry rather than the farmers who raise and produce poultry. Payne v. Kansas ex rel. Brewster, 248 U.S. 112, 39 S.Ct. 32, 63 L.Ed. 153. This is evident from RSA 344:10 which provides in effect that no license is required of the poultry producer who sells poultry at his own farm or the merchants who sell at their stores. The statute, by no means unique, is directed at protecting the local producer from 'fly-by-night' operators who may leave the state with the rustic retaining a 'rubber check.' State v. Mason, 94 Utah 501, 78 P.2d 920, 117 A.L.R. 330; Lloyd Garretson Co. v. Robinson, 178 Wash. 601, 35 P.2d 504; Annot. 117 A.L.R. 341, 350. Cf. RSA 344:15-18. While there is nothing to preclude the Legislature from protecting nonresident dealers and producers of poultry (Bozied v. Edgerton, 239 Minn. 227, 58 N.W.2d 313), the provisions of RSA ch. 344 disclose a purpose to protect only resident poultry producers. Annot. 117 A.L.R. 341, 363. The answer to the fourth question is that the proceeds of bond posted by the bankrupt pursuant to RSA 344:1 are to be distributed to poultry producers only. The answer to the fifth question is that distribution of proceeds of the bond is limited to New Hampshire residents only. In this connection it may be noted that nonresidents may apply under the law of their state inasmuch as neighboring states have similar statutes.
The first question transferred is whether the filing of proofs of claim in the Karanikas bankruptcy constitutes an election which bars the claimants from receiving any distribution from the bond proceeds. The answer is no. Gehlen v. Patterson, 83 N.H. 328, 141 A. 914; Stefani v. Merrimack River Savings Bank, 90 N.H. 10, 3 A.2d 645. The doctrine of election of remedies is a harsh one which frequently causes injustice and the doctrine has been severely confined and limited in its application in this state. Ricker v. Mathews, 94 N.H. 313, 317, 53 A.2d 196, 171 A.L.R. 296. The doctrine has no application to this case and does not preclude the...
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