The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1921-12-23


le contract.
Between the time of the APPEAL to
the supreme court and the final de-
cision, membership of the Industrial
Commission was changed through the
installation of officers elected at the
recent recall election. Part of the
contract was abrogated by the retir-
ing Industrial Commission before il
went out OF office and a new contract
signed and this contract later was
modified by the new Industrial Com
mission.
The decision was by the M Ajority Of
the court, Justice Birdzell being au-
thor and Justices Christianson and
Robinson concurring. Chief Justice
Grace and Justice Bronson specially
concurred, but held that following up
on the entrance of the new Industrial
Commission upon its duties, the ap-
peal from the district court should
have been dismissed, allowing the de.
cision made there to stand and thus
attaining the same end. While the
court took notice of the reports of a
new contract it did not enter into
their decision and the decision is up
on the stipulation by Attorney Gen.
eral VIM. Lemke, representing the for.
mer Industrial Commission and the
attorneys of the taxpayers, j.. J.. Ke.
hoe and Fl. E.. Wheeler of Cando.
Never Was Purchaser.
In reaching its decision, the su-
preme court says:
THE stipulated facts, in our opin-
ion, show beyond doubt that the
bank never became the purchaser of
the bonds which it attempted to sell
to Splitter. Rorick & Company. 1t
had them merely for safe keeping, as
it's own receipts indicated. It was net
carrying the bonds as assets. As 1t
scld them, it RENTED the proceeds to
the Industrial Commission. In it's let
ters Of advice it expressly acknow.-
edged that 1T had held the bonds mere.
ly for safekeeping and that the sale
had resulted partly through the activ
tiles of the bank mourning expense;
under the direction OF the Industrial
commission, which expenses were
charged to the appropriation of the
Commission. The bank never at any
time pretended to be the owner of the
bonds. The attempted sale therefor
must be considered as having been
made by the Industrial Commission
In view of the facts it is not neces-
sary to consider whether or not the
bank, under the direction of the In
dustrial Com mission, could in fact
purchase at par and resell at dis
count.
Can the Industrial Commission sell
, at 4 discount to the purchaser OF
bonds which the statutes require to
be sold at par and for cash? I'VE are
clearly Of the opinion that it cannot.
The attorney general argues that Il
the sale by the, bank is in reality o
sale by the Industrial Commission, as
we hold it to be, payment of such COM
missions as were paid and contracted
to be paid to Spitzer, Rorick & Com
pany is not necontrovention Of the
statute prohibiting the sale at less than
par. We have examined all of the au-
thorities cited in this connection and
find that, while they support the pay
ment of reasonable commission to
an agent or broker, where one is EN-
ployed, they do not countenance the
allowance of commission to pur.
chase do so in case where the
commission mus be substracted from
the par value would result ip a sale
at less than par-the thing the stat
ute prohibits. This is not an instance
where the state has attempted to en-
ploy the Splitter, Rorick & Company
as an agent or broker to sell its bond;
and to pay them commission fol
their services. Put the Splitter Roric:
e Company purport to be the purchas
ers. None of the authorities reliet
upon by the attorney general goes 81
far as to support discount to tn
purchaser under the guise of com
: mission On the contrary. they de
clare that a purchaser may not thu
secure the bonds at less than par"
The decision then cites the author
tiles and continues through discus
sion Of changes to its affirmation.
V in supporting their stand that TIL
: action should have been dismisse
e when the former Industrial Commis
4 sion went out of Office, Chief Justic
g Grace and Justice Bronson say:
: "This will operate accordingly I
permit the judgment entered by tn
S trial court to stand as such and wi
:: not service in any manner. to embaras
d the new Industrial Commission. cor
d cerning the new contract, or. by an
determination upon the merits wit
such new Industrial Commission a
n defendants" e.,