National Surety Corp. v. Kruse , 121 Mont. 202 ( 1948 )

I am of the opinion that the only order which the commissioner of agriculture has jurisdiction to make when complaint is made to him in disputes between a licensed wholesale produce dealer and a grower or producer, is to "dismiss the charges, or suspend the license of said dealer for a specified period, or revoke the same, or make such other appropriate order as may be deemed just and proper." So reads the statute, section 2443.8, Revised Codes of Montana 1935.

Applying the recognized rules of statutory construction, it appears that the "other appropriate order," which the commissioner may make, is an order "with reference to the revocation or suspension of any license granted under the provisions of this act." The maxim "noscitur a sociis" expresses the rule that the meaning of words may be indicated or controlled by those with which they are associated. It is the rule that general words and expressions may take color from those with which they are associated and are restricted to a sense analogous to the less general. Misch v. Russell, 136 Ill. 22, 26 N.E. 528, 12 L.R.A. 125.

Thus, the "other appropriate order" following the orders enumerated relative to the revocation of the dealer's license, takes the color of an order in some manner affecting the license and is read as "other such like order." People ex rel. Barnett v. Bartlett, 169 Ill. App. 304; In re Bush Terminal Bldgs. Co., 2 Cir., 93 F.2d 659. As held by the district court, such general language does not empower the commissioner to give judgment between parties in controversies where either would be entitled to a jury trial if pending in a court. Furthermore the only appeal from an order of the commissioner which the statute affords is from the action of the commissioner "with reference to the granting of, or the refusal to grant, or to renew any license or with reference to the revocation or suspension of any license granted under the provisions of this act." Sec. 2443.10, Rev. Codes 1935. This clearly implies that such are the only orders which the commissioner may make.

True it is that the scope and field of power and authority granted by legislative bodies to administrative boards, bureaus, commissioners, and officials, in these later years of greater control and regulation of the ordinary contract relations within the community, has largely widened. The granting of portions of the judicial or quasi-judicial power to such administrators is upheld where the determination of a controversy is incidental to the regulatory function of the administrative body, but not when it is primarily to determine and decide questions of legal right between private parties; then the power is held to belong to the judiciary. Re Opinion of Justices, 87 N.H. 492, 179 A. 344, 357,110 A.L.R. 819.

However, a consideration of the question how much of judicial power may be constitutionally vested by the legislature in an administrative officer is not required here. The reading of the statute seems to be all that is necessary to determine what power has been given by it. The controversy between the producer Reagan, and the wholesaler, Barr, involved an alleged breach of an alleged contract on the part of the wholesaler. The statute does not grant to the commissioner the judicial power to pass upon the existence, or the validity, of the alleged contract, or the amount of damages arising by reason of its alleged breach. I believe the district court was correct in holding that the order of the commissioner was not one within his power to make. The surety company was not notified of the hearing on Reagan's complaint against Barr and was not a party thereto.

As claimed by the surety, appellant here, before it may safely pay Reagan the amount of the damages he claims for the alleged breach of Barr's alleged contract, a valid judgment against Barr must be entered in a court of competent jurisdiction for the amount of such damage, whatever it may be. The surety must then pay if the principal fails to do so.

Because the judgment of the district court was outside the issues as defined in the pleadings and agreed statement of facts, and because it is not supported by any evidence, or any admitted facts, it should be reversed, and declaratory judgment entered that the order of the commissioner that Barr and appellant pay Reagan the sum named therein be held invalid as an order beyond the power vested in the commissioner by the statute.

Rehearing denied May 3, 1948.