State v. Gerritson , 124 Or. 525 ( 1928 )

The first contention of defendants cannot be sustained.

The contrary view was announced by this court in State v.Whiteaker, 118 Or. 656 (247 P. 1077), in an opinion by Mr. Justice BELT, in page 661:

"There is more reason for the application of this law to unorganized business concerns than to those having a recognized legal entity. The corporation commissioner would undoubtedly be more hesitant in granting a permit to sell `securities' in a future or contemplated business enterprise than in an established and going concern. There is more uncertainty and speculation in the former class of investment."

To the same effect is National Bank of the Republic v.Price, 65 Utah 57, 234 P. 231.

The defendants claim that because one of the defendants subscribed for a large share of the stock as trustee and the collections in payment thereof were payable to said trustee, that the defendants are not liable. This contention is contrary to the law: Pennicard v. Coe, ante, p. 423 (263 P. 920); Bond v.Coe, ante, p. 440 (263 P. 924); Moe v. Coe, ante, p. 436 (263 P. 925), all decided by this court January 31, 1928.

It is earnestly contended that because the evidence shows that the securities involved in this litigation were offered for sale prior to the organization of the corporation that defendants cannot be guilty of violating the Blue Sky Law. The corporation whose stock was sold was the Oregon-Washington Sugar Corporation, organized May 15, 1926. The indictment charges the defendants with having sold the certificates of that company in July, 1926. This clearly shows that the sale was not consummated until after the corporation was organized. It has been well said that a subscription to the stock of a corporation in process of organization is a continuing offer which culminates in a completed sale when the offer is accepted by receiving the money whether or not the certificate is actually delivered to the subscriber: 1 Thompson, Corp. (3 ed.), 823, § 587.

In this case the certificate of stock was actually delivered for the money paid prior thereto. A certificate was given to the purchaser by defendant Gerritson as trustee of the refinery development fund which stated that the money received in payment of the shares of stock in the proposed corporation would be refunded if the sugar refining corporation was not organized in due time in accordance with the corporation laws of the State of Oregon. There was a completed sale of the corporate securities when the stock certificate was delivered: Hamlin County L.S.P.Co. v. Karlstad, 48 S.D. 82 (202 N.W. 141).

The language of the statute includes offers for sale. Section 6838 contains this language:

"The word `dealer' * * shall include every person, partnership, corporation, or association which is now engaged, or which shall hereafter engage, * * in the buying for the purpose or in the contemplation of so selling, any stocks, bonds, * *"

Section 6839 provides:

"No dealer shall in this state offer for sale, or promote for advertisement, circular or any other form of public or general offering the sale of any corporate securities to be hereafter issued unless prior thereto there shall have been filed with the corporation commission: * *"

There was evidence that the stock in the proposed corporation was offered for sale by the defendants. There was evidence that the defendants had a list of a large number of persons to whom they had either offered to sell or had in contemplation of offering to sell. There was evidence that the offer to the prosecuting witness Klekar was accepted by him, his money received and retained and a certificate of stock thereafter issued. This transaction constitutes both an offer to sell and an actual sale: People v. Curtis, 233 Ill. App. 13; State v.Fraser, 105 Or. 589 (209 P. 467).

The court did not err in refusing to require the state to elect the particular offense upon which it would rely in the prosecution. There is only one offense charged and only one offense was attempted to be proved.

"Where a statute forbids several things in the alternative, it is usually construed as creating but a single offense, and the indictment may charge the defendant with committing all the acts, using the conjunction `and' where the statute uses the disjunctive `or.' Citing 1 Bishop's Criminal Procedure, 819."People v. Curtis, 233 Ill. App. 13, 19.

This principle is analyzed and explained in State v.Laundy, 103 Or. 443, 468 et seq. (204 P. 958, 206 P. 290), by former Mr. Justice HARRIS, with his accustomed clarity and thoroughness. Other cases holding the same principle are State v. Fraser, above; State v. Mishler,81 Or. 548 (160 P. 382); State v. Clark, 46 Or. 140 (80 P. 101); State v. Fiester, 32 Or. 254 (50 P. 561). This rule of law seems to be universal: Habersham v. State,80 Fla. 240 (85 So. 655); Laroe v. State, 30 Tex. App. 374 (17 S.W. 934); State v. Rowen, 104 Or. 1 (200 P. 901);Commonwealth v. Eaton, 32 Mass. (15 Pick.) 273.

We do not believe that two different crimes are stated in the indictment. We think the defendants are charged with only one offense. There are two different statements of the way in which this offense was committed. Either statement standing alone would constitute a crime; but both statements combined would be only one offense. If only one of the ways in which the defendants are charged with having violated the act had been alleged and they had been tried upon that one charge, they could not thereafter have been tried on an indictment charging another violation of the act based upon the same transaction. In this case the same transactions are relied upon to prove the defendants guilty of violating the Blue Sky Law. The two ways in which they are charged with that violation are expressed in the indictment as one crime, not as constituting two offenses.

It has been determined that the Blue Sky Law is constitutional both by this court and the Supreme Court of the United States where similar statutes from other states are involved. The defendants contend that only one feature of the Blue Sky Law is unconstitutional, that one feature being the provision in the statute preventing the owner of stock as an individual from disposing of the stock in repeated and continuing transactions of a similar nature. This contention has already been passed upon by this court adverse to the defendants. In State v. Barrett, 121 Or. 57, 64 (254 P. 198), this court, speaking through Mr. Justice RAND, said:

"There was sufficient evidence offered to show that the defendant in dealing with this stock, was not within the provisos, even though there had been evidence of his ownership of it. His course of dealing with the stock consisted of repeated and continuing transactions all looking to the sale and transfer of the stock to the public generally, and the case was one where stock of but little if any value was being repeatedly sold to the public at its par value. Under the evidence defendant clearly violated the statute and the motions were properly overruled."

In the Barrett case, as in this, defendant Barrett contended "that in making the sale of the stock in question, he was merely selling his own property and therefore that the court erred in overruling his motions for a directed verdict and in arrest of judgment."

This same question was also raised in the case of Hall v.Geiger-Jones Co., 242 U.S. 539, 555 (61 L.Ed. 480, 37 Sup. Ct. Rep. 217, see, also, Rose's U.S. Notes Supp.), and in Merrick v. Halsey, 242 U.S. 568 (61 L.Ed. 498, 37 Sup. Ct. Rep. 227). In the last case cited the same question presented in the instant case with ability was also presented very earnestly in the argument for appellees in page 574. Defendants rely with confidence on the case of People v. Pace, 73 Cal.App. 548 (238 P. 1089). That case supports the contention of defendants. The defendants' position is very forcibly stated in the opinion, but we cannot follow it. We think that both our court and the Supreme Court of the United States have heretofore held the contrary view, as shown by the citations above.

It may be very plausibly argued that the provisions of the statute give to the corporation commissioner arbitrary powers, but it must be remembered that the statute provides for a review of the power exercised by the commissioner in the courts. This, we believe, amply protects legitimate business and enterprises in this state: Or. L., § 6841. This court cannot and will not pass upon the soundness of the legislation any further than to inquire into its conformity with the fundamental law of the state.

The judgment of the Circuit Court is affirmed.

AFFIRMED.

RAND, C.J., and McBRIDE and ROSSMAN, JJ., concur.