Eastman Oil Mills v. State ex rel. Roberson

Cook, J., delivered the opinion of the court. This suit Avas instituted by the state, on relation of the attorney-general against the Eastman. Oil Mills, a corporation chartered under the laws of this state, and domiciled at Jonestown, Miss., seeking to impose on the defendant the penalties prescribed for a violation of chapter 162, LaAvs of 1911, Hemingway’s Code, section 4750 et seq., and from a decree imposing a penalty of one thousand clol — 68 — lars and forfeiting the defendant’s charter, this appeal was prosecuted. The bill of complaint avers that the defendant ivas a domestic corporation with its domicile and principal place of business at'Jonestown, Miss.; that it Avas engaged in the manufacture of cotton seed products at the place of its domicile; that since 1914, up to and including the time of the filing of the bill, it had oAvned and operated cotton gins at Belen and Rich in the state of Mississippi; that the OAvnership and use of said gins at Belen and Rich Avas unlaAvful, in that it violated the provisions of chapter 162, Laws of 1914, Hemingway’s Code, section 4750 et seq.; that since the passage of said chapter 162, Laws of 1914, the defendant has had a reasonable time Avithin which to dispose of said gins but instead of disposing of same as authorized by laAV, that defendant has, in open defiance of the laAV, proceeded to operate, control, and use said gins at Belen and Rich; and that tAvelve months after the passage of the act of March 28, 1914, known as chapter 162, Laws of 1914, would have been a reasonable time Avithin Avhieh the defendant could and should have disposed of said gins under the terms of said act. The prayer of the bill Avas for the infliction of a fine and the forfeiture of defendant’s charter as prescribed by said act. The ansAver admits that the defendant is a corporation created, 'organized, and existing under the laws of the state of Mississippi, with its domicile and principal place of business in Jonestown, Miss., and that for a long time prior to March 28, 1914, and up to the time of the filing of the bill of complaint, it owned, managed, used, controlled, and operated cotton gins at Belen and Rich, Miss., which are locations other than JonestoAvn, where the cotton oil mill of defendant is located, and Avhere defendant is engaged in the manufacture of cotton seed products, but denies that the ownership or operation of said gins was unlawful and unauthorized by law, and avers that all of the aforesaid business in which it Avas engaged, including the ownership and operation of said gins, was specially — 69 — authorized by its charter of incorporation. The answer further denies that, since the passage of chapter 162 of the Laws of 1914, it has, in open defiance of law, continued to operate, control, and use said gins at Belen and Rich, but avers that a few months after the passage of said act financial conditions in the state of Mississippi, and especially at and near the location of defendant’s plants, were greatly depressed because of the low price of cotton due to the outbreak of the European War, and for this reason defendant was unable to sell said gins for anything like a fair and adequate price, and on account of this condition defendant sought and obtained the consent of the then attorney-general of Mississippi to continue to own and operate said gins during the season of 1914-15, and that this consent of the said attorney-general was renewed each year until the close of the ginning season of 1919-20; that during said years from 1915 to 1920, a suit was pending-in the chancery court of Sunflower county, Miss., to test the constitutionality and validity of said chapter 162 of the Laws of 1914, and that during the pending of said .suit it was agreed between the said attorney-general and the defendant that it might operate its two gins from season to season. The answer further averred that on the 7th day of July, 1920, after the decision by the supreme court of the state of Mississippi of the said case attacking the validity of said chapter 162 of the Laws of 1914, and after said cause had been appealed to the supreme court of the United States, the defendant sought to obtain from the preseu t attorney-general, who succeeded to the office on the 3 9th day of January, 1920, permission to operate said lwo gins until such time as a sale of same at a reasonable price could be made, and on the 29th day of July, 1920, the present attorney-general declined to grant such permission, and that since the receipt of such advice from the attorney-general, defendant has not operated either of said gins; that since the passage of chapter 162, Laws of 1914, and all during the time it was operating its said gins by permission of the attorney-general, it sought to sell them — 70 — at a reasonable and fair price, but was unable to do so; that since the filing of this suit it had succeeded in selling its gin at Rich at a price several thousand dollars less than its actual value, the entire sale being on credit extending over a term of years; that defendant has not been able to get an offer of anything like a reasonable or fair price in cash or on credit for its. gin at Belen, although it was then endeavoring to dispose of said gin at less than half its value'. The answer further denies that it has had a reasonable time within which to dispose of said gins, and avers that in the operation of said gins it has sought to co-operate with the chief law officer of the state, and that the operation of said gins had been with the knowledge and consent of the attorney-general, and had been at a time when the validity of the act of 1914 was being contested in the courts, and it was not required to sacrifice its proj)erty until the validity of the act had been tested and upheld by the courts, and that under these circumstances it was not required to dispose of its said gins within twelve months after the passage of the said act of 1914, but, on the contrary, averred that if twelve months should be held to be a reasonable time in which to dispose of said gins, then such period of time should not begin to run against the defendant until the 29th day of July, 1920, the date upon which the present attorney-general declined to further permit defendant to operate these gins which had theretofore been operated by special permission of his predecessor in office. The answer then averred that the said chapter 162 of the Laws of 1914 was unconstitutional and void for the reason that it denied to the defendant equal protection of the law guaranteed by the constitution of the state of Mississippi and by the constitution of the United States. The cause was submitted to the chancellor on bill, answer, and agreed statement of facts; the statement of facts being as follows: “It is agreed between counsel for the §tate of Mississippi and the Eastman Oil Mills, complainant and defend — 71 — ant herein, that this cause may be tried upon bill and sworn answer on file, and that the sworn answer of the defendant correctly stated all the facts averred therein, except that it is the contention of the state of Mississippi, that the defendant has had a reasonable time within which to dispose of its said cotton gins at Rich, and. Belen, which complainant contends should have been done within twelve months after the enactment of chapter 162 of the Laws of 1914, while the defendant contends that it should have a reasonable time after the 29th day of July, 1920, the date when it was refused permission by the attorney-general to continue to operate its said gins. This question is for the court to determine. “It is agreed that in addition to the facts set out in the pleadings, that the gin building at Rich, Miss., belonging to the defendant, was destroyed by fire about the latter part of November, 1919, leaving intact the cotton house, seed house, coal house, platform, boiler, engine and some other small items of salvage; that said gin was rebuilt in the spring and summer of 1920, being completed in August of said year, but that the defendant did not begin the ginning season of 1920 with said gin, not operating it at all during the autumn of said year, but having effected a sale of same on September 8, entirely on a credit, and only a small part of the purchase price has been paid to it. The defendant claims as his reason for rebuilding said gin that a large loss of the salvage would have been suffered and had to be charged off on the books of the company, since the salvage was useless as it stood and there was only a partial loss by fire, and partial insurance; that defendant decided that the only way to make use of this salvage was to rebuild the plant and continue efforts to sell it, which it did before starting the new season. “It is further agreed that the gin of the defendant at Belen, Miss., was not operated at all since the spring of 1920, the defendant neither having operated it under its own management, nor leased it to any one else, and that — 72 — the defendant has continued and still continues in its efforts to dispose of said gin. “The only other question for determination is whether or not said chapter 162 of the Laws of 1914 is violative of the'constitution of the state of Mississippi, or the constitution of the United States.” Chapter 162, Laws of 1914, Hemingway’s Code, section 4750 et seq., provides that it shall he unlawful for any corporation which oavus a compress, or which is engaged in the manufacture of cotton seed products, to o>vn, lease, use, control, or operate a cotton gin in this state except “in the city or toAvn of the location of its cotton oil plant or compress,” and that any corporation which shall operate a cotton gin in violation of the statute shall he subject to a penalty of not less than one hundred dollars, nor more than 'five thousand dollars, and in addition thereto “shall forfeit its charter if a domestic corporation, and its right to do business in this state if a foreign corporation.” This statute further provides that — “A concern prohibited by this act from owning or operating gins is at liberty to dispose of said gins for cash or credit Avithin a reasonable time after the passage of this act and to operate such gins until sold within such time.” Since the institution of this suit, the validity of this act has been settled, the constitutionality thereof having been upheld in the case of State ex rel. Collins v. Crescent Cotton Oil Co., reported in 116 Miss. 398, 77 So. 185, and Crescent Cotton Oil Co. v. State ex rel. Collins, 121 Miss. 615, 83 So. 680, and affirmed by the supreme court of the United States on November 14, 1921, 257 U. S. —, 42 Sup. Ct. 42, 66 L. Ed. — . Now conceding the validity of the said act of 1914, and that appellant has violated this law, counsel for appellant, hoAvever, contends that the state is bound by the acts of its former attorney-general in granting appellant permission to continue to own and operate these gins, or, in other words, that the state is estopped to deny the validity or binding force of the agreement entered into between ap — 73 — pellant and its former attorney-general, and that upon the refusal of the present attorney-general to renew the agreement made with his predecessor, appellant was entitled to a reasonable time thereafter within which to dispose of the gins. The provision of the act of 1914 that corporations which were prohibited by the act from owning or operating gins might dispose of them within a reasonable time after the passage of the act cannot be altered or changed by the act or consent of any officer of the state, and all such concerns that continued to own and operate these prohibited gins after the expiration of a reasonable time from and after the passage of the act did so in violation of the provisions thereof. Officers of the state cannot grant indulgencies authorizing the committal of offenses, and they have no power to authorize the continuance of any act or business which ig in violation of law (State ex rel. Tanner, Attorney General v. Northwestern Invest. Co., 70 Wash., 381, 126 Pac. 895; State ex rel. Fishback, Insurance Commissioner v. Globe Casket & Undertaking Co., 82 Wash. 124, 143 Pac. 878, L. R. A., 1915B, 976), and the attempt by the attorney-general so to do was unauthorized.' The action of the attorney-general in granting appellant permission to own and operate these gins in violation of the positive provisions of the statute cannot amount to more than a promise of forbearance on his part, and since he was without power to suspend the operation of the statute and authorize .the continuance of any act or business which was in violation of law, his action in attempting so to do can have no binding force on his successor or any other state officer having authority to enforce -the provisions of the statute, since the state cannot be estopped by the unauthorized acts of its officers. 10 R. C. L., p. 705. It-may be, and probably is, true that, in continuing to own and operate these gins and in rebuilding the gin which Avas destroyed by fire, appellant acted in good faith, believing that it was protected by its agreement with the attorney-general, and if such is the case, it is regrettable — 74 — that it has incurred such harsh penalties, but it acted at its peril in disregarding the plain and positive provisions of the statute, and it follows that the decree of the court below must be affirmed. Affirmed.