Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-09-23

guilty OF Sucn unfair discrimination
the secretary shall so find and shall
make record of suca finding upo2
the records of his office. The penalty
provided is that the secretary shall
at once forfeit the charter of the cor
poration, if domestic one, or imme-
diately revoke and forfeit the permit
to do business in the state, of for
eign corporation. 1t will be seen that
his finding, if against the corporation,
is the unfair discrimination within the
terms of this act The terms of the
act are disclosed by referring back to
Sec. l; that is to say, That the cor
poration Intentionally, for the purpose
of destroying or preventing competi-
ton, shall discriminate or willfully,
for the purpose Of such discrimina-
ton or unfair competition, refuse to
sell, etc.
The finding of the secretary must
be as to the intent or the willfulness
of the corporation, and the record
which he makes is based upon his
opinion of the intent or willfulness.
His opinion must be reached as the
result of hearing evidence pro and
con, offered as to the facts of dis
elimination. and gathering from such
evidence and facts the intent or pur-
pose of the corporation complained
against; and determining the local
effects of such acts. He must decide
whether they conflict with the duties
Of the corporation under the statute.
or are innocentlv done. 1t is true
that administrative officers must exer-
else their judgment and discretion on
innmerable occasions when called
upon to perform official duties. It is
true that they must also pass upon
or find facts upon which to base their
actions, but these acts are done only
in the necessary routine of their bus1-
ness or official duties and are such
as people in all occupations must per
form in the ordinary exercise of their
callings. The province of courts is
not only to find the facts from evil
dence submitted in the proper case,
but to apply the law and render judy
ment; that is to say. determine by
the exercise of their Judgment and
discretion, taking into consideration
the facts and the law. what Judgment
must be imposed. The secretary OF
state is required in this instance to
make and record in his official records
the finding he makes and to at once
forfeit the charter of each offending
domestic corporation, or, If foreign
corporation, cancel its permit to do
business in the state The result is
that the corporation is punished by
what is in effect a Judgment entered
by the secretary of state. We fail
to distinguish between it and pro-
vision requiring him, in case of such
finding, to imprison private party.
The difference in the penalties appli-
cable to a misdemeanor. which the
acts are made by the first section of
the law, and the penalty authorized
under the other sections Is only in
kind and not in principle. If the
secretary can punish a domestic cor
poration by FORGETTING it's charter to
do business he destroys a franchise.
which is property, he destroys valuable
rights, taking thereby from the cor
poration the right to do business, the
very object of its existence, and Oft
times destroying, in large measure,
the value of it's property. The same
is true as to foreign corporation.
While its right to do business in the
state may not be equal to that of
domestic corporation, and 1t may not
be entitled to the same degree of pro.
lection, it Is of some value. In the
case of the relator it is shown to be
of great value. It also appears that
the property possessed by it within
this state is Of peculiar character,
valuable only in the carrying on &c
the business in which the relator is
engaged and that it will be greatly
deprecated, If not totally destroyed,
if the relator is driven from the state
We are not attempting to say what
the effect Of the law would be if the
decision Of the secretary was not re-
quired to be based uDon his opinion
as to the intent or willfulness 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 exer-
else 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 cir.
He hears evidence, de-
cides upon it's 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 prop
erty, and the propriety Of doing an
act. are the subject matter of his
We are of the opinion that the legis- |
ature. by this act. attempted to con-
fer upon the secretary of state powers
which are clearly judicial in their ma