132 N.W. 769 | N.D. | 1911
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,
“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.
“See. 4. Any firm, person, or corporation violating any of the provisions of this act, shall upon conviction thereof forfeit to the state of
“Sec. 5. Nothing in this act contained shall in any maimer 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 m this state for commodities sold by the-said company, to wit, oil and gasolene, different prices for the same quality of such oil and gasolepe; that said company charged higher-prices per gallon for the same grade of oil and gasolene in one locality of this state than it did for the same quality of oil and gasolene- 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
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 of state, and much delay was occasioned in the hearing and consideration of the matter by this failure. Before argument a new attorney general.and .a new secretary of state had assumed the duties of the offices. The assistant attorney general appeared on the argument before this court, and stated that the office of attorney general did not desire to argue the -case; that they deemed it due the court and themselves and the office of the secretary of state that explanation be made regarding the state’s position; that when the change occurred in the office of the attorney gen-eral no brief had been filed or prepared, and that the new officers spent some time in attempting to find authorities sustaining the action of the -secretary of state and the district court, but that they were unable to find any cases, which had not been overruled, that would sustain the ■position of the state; that thereupon the matter was submitted to former Secretary of State Blaisdell, who spent considerable time, with the aid of outside counsel, in investigation, and at length informed the attorney .general that he would be unable to prepare a brief defining his position in the matter; that the attorney general’s office felt, under the circumstances, it would be folly to try to make out a 'case. However, the attorney general declined to consent to a reversal of the judgment.
A great part of the argument of the appellant is in support of its contention that the act in question violates § 85 of the Constitution of this state, in that it attempts to confer upon an administrative officer judicial power. Section 85, supra, reads: “The judicial power of the state of North Dakota shall be vested in a supreme court, district courts, county courts, justices of the peace, and in such other courts as may be created by law for cities, incorporated towns, and villages.” A similar statute, but requiring action by the court, was passed upon and sustained in State v. Drayton, 82 Neb. 254, 23 L.R.A. (N.S.) 1287, 130 Am. St. Rep. 671, 117 N. W. 768, that, like this, applying only to discriminations for the purpose of destroying business of a competitor.
The question of the distribution of the powers of government to the legislative, executive, and judicial departments under the Constitution has been passed upon many times and by nearly every court of this country, and there can no longer be any doubt that each department is supreme within its own sphere, or that the judicial power of this state has been exclusively vested, under § 85, supra, in the courts. Without any extended citation of authorities, we may call attention to the exhaustive opinion of Judge Hook of the Federal.court in Western U.
No difficulty is presented in the determination that under our system
It may aid in determining these questions to consider briefly what constitutes judicial power. It will be unnecessary to formulate a definition which includes everything which may come under the appropriate title of judicial powers, but only to determine those things or acts which appropriately belong thereunder as applicable to the instant case. Judge Cooley says: “On general principles, those inquiries, deliberations, orders, and decrees which are peculiar to such a depart
Official action, the result of judgment or discretion, in such case is k judicial act. 23 Cyc. 1620, and citations; Territory ex rel. French v. Cox (Dist. Ct.) 6 Dak. 501; State v. Le Clair, 86 Me. 522, 30 Atl. 7; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Owners of lands v. People, 113 Ill. 309. In United States v. Eider (D. C.) 50 Fed. 406, the court construed an act of Congress providing that, when the Secretary of War shall have reason to believe that any bridge is an obstruction to free navigation, he shall give notice requiring the bridge to be so altered as to render navigation through or under it easy and unobstructed, and imposing a penalty on the controllers of the bridge for failing to make such provisions; and it was held that as power of the Secretary depended upon his having adjudged that the bridge was an obstruction, and that under the terms of the law his adjudication was made final and conclusive, this was judicial power, and that Congress could not delegate such power to the Secretary of War. In Church v. South Kingstown, 22 R. I. 381, 53 L.R.A. 739, 48 Atl. 3, the question before the court related to the liability of a town for the care of a pauper, and three questions were presented for determination: (1) Was the person a pauper? (2) Had he a legal settlement in the town sought to be charged? (3) Had the defendant town failed in the discharge of its duty to suitably care for him ? The legislature of Ehode Island had enacted a law providing that when it was claimed a pauper was not suitably cared for by the town to which he was chargeable, upon five days’ notice to the commissioners or overseers of the poor of such town, and on continued neglect of the town, complaint might be made in writing to the appellate division of the supreme court or any justice thereof, setting forth the nature of the grievance complained of; and that such division or justice, after ordering notice to the town of the pendency of such complaint, might, in its discretion, appoint a com
In State ex rel. Monnett v. Guilbert, 56 Ohio St. 575, 38 L.R.A. 519, 60 Am. St. Rep. 756, 47 N. E. 551, the supreme court of Ohio had un
The supreme court of Massachusetts, speaking through Chief Justice Bigelow, in Denny v. Mattoon, 2 Allen, 361, 79 Am. Dec. 784, regarding the determination of the solvency or insolvency of a party under the insolvency law, said: “He must be found to be insolvent within the legal signification of that word in order that his property may be taken, the title thereto vested in the assignees, and its proceeds distributed among his creditors. Especially is this true where, as in the case at bar, the proceedings are in invitum, and no assent of the debtor, either express or implied, can be had or inferred to aid the course of legal proceedings by which his right to the property is devested and appropriated to the payment of his debts. The determination of the question whether a debtor is so situated in relation to his creditors as to be subject in his person and estate to the provisions of the insolvent laws is, in its nature, the exercise of a judicial power. It is not to be settled arbitrarily or capriciously, but by the application of fixed rules and established principles to facts which may be proved. . . . It must be the result of due inquiry sufficient to satisfy the discretion and convince the judgment of the officer of the law.” That case involved the validity of a law reviving a certain invalid judgment, and the principle, being considered, was the usurpation of judicial powers by the legislature.
In Re Sims, 54 Kan. 1, 25 L.R.A. 110, 45 Am. St. Rep. 261, 37 Pac. 135, it was held that power given by statute to the prosecuting attorney to punish for contempt any witnesses disobeying process, or refusing to answer questions when commanded by subpoena issued by such attorney to appear before him, was invalid. In that case it was also held that executive and judicial powers could not be mingled and combined in the same person, at the same time, in the same proceeding. “Judicial tribunals decide upon the legality of claims and conduct. They determine controversies and interpret laws.” 6 Am.
In People ex rel. Martin v. Mallary, 195 Ill. 582, 88 Am. St. Rep. 212, 63 N. E. 508, an act which authorized the managers of the state reformatory to transfer temporarily to the penitentiary certain persons shown to have been previously convicted of crime, or those deemed incorrigible, was held unconstitutional. To the same effect is Re Dumford, 7 Kan. App. 89, 53 Pac. 92. “The secretary of state is a ministerial officer, authorized by law to perform different duties, upon different contingencies. If he makes mistakes of facts in the performance of his functions, his action may be void or voidable only in different circumstances. But he cannot judicially determine the facts on which he acts or refuses to act. This can only be done by the courts.” State ex rel. Drake v. Doyle, 40 Wis. 188, 22 Am. Rep. 692.
We will not consider whether the duties imposed upon the secretary of state by the statute in question are judicial rather than administrative. We need not consider the provisions of § 1 further than to call attention to the fact that it makes the doing of any of the acts referred therein a misdemeanor, and the gist of the offense under its terms is the intent and wilfulness of the acts. Section 2 attempts to add a separate and different penalty for such acts, to be imposed by the secretary of state. The requirements are that a complaint shall be made that a corporation chartered in this state, or authorized to do business therein, is or has been guilty of unfair discrimination. After issuing notice fixing a date for hearing, it is provided that, if in the opinion of the secretary of state such corporation has been guilty of such unfair discrimination, the secretary shall so find and .shall make a record of such finding upon the records of his office. The penalty provided is that the secretary shall at once forfeit the charter of the corporation, if a domestic one, or immediately revoke and forfeit the permit to do business in the state, if a foreign corporation. It will be seen that his finding, if against the corporation, is the unfair discrimination within the terms of his act. The terms of the act are disclosed by referring back
We are not attempting to say what the effect of the law would.be if the decision of the secretary was not required to be based upon his opinion as to the intent or wilfulness of the relator. An entirely different question would be presented on such a statute. We repeat, the act of the secretary provided for by this statute rests not on the act of discrimination or unfair competition, but on his opinion as to intent and purpose of such acts, and his opinion is the result of the exercse of his judgment or discretion upon the evidence submitted, and is far more potent than would be his finding of the simple fact that a greater price is charged at one place than at another, under similar circumstances. He hears evidence, decides upon its weight, he finds some true and some false. He passes upon the intent of the offender, and, if found guilty, affixes the penalty, and the whole proceeding is made a record which excludes the relator from the state. In other words, he notifies, tries, acquits, or convicts, as in his opinion or judgment the facts and the law require. This is the function of courts under the Constitution. It is authority attempted to be vested in an officer to hear and determine when the rights of persons and property, and the propriety of doing an act, are the subject-matter of his adjudication.
We are of the opinion that the legislature by this act attempted to confer upon the secretary of state powers which are clearly judicial in their nature, and that the act is to that extent invalid. We may add that it is difficult, if not impossible, to define judicial powers, and to discriminate between judicial and administrative functions in a.given, case in a way which will be applicable to every case. It may also be added that the legislature at the same session enacted other statutes, apparently having the same object as the one complained of, but containing provisions which appear to obviate many of the objections found in the act which we are considering. If those statutes are valid, the state
It is further urged by the relator that this law does not provide due process. It necessarily follows, from our conclusions as to the delegation of judicial powers to the secretary of state, that this point is well taken.
The judgment of the District Court is reversed.