Blue v. Division of Corporations

California Court of Appeal Jul 24, 1935 No. Civ. 9514Published

Before: Nourse

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Holding. The court held that the corporation commissioner's denial of a permit to sell securities was an administrative act rather than a judicial one, and that the commissioner acted within his authority to prevent a scheme designed to evade the Corporate Securities Act.

Issues

Whether a writ of certiorari is a proper remedy to review the corporation commissioner's denial of a permit to sell securities.
Whether the corporation commissioner's refusal to grant a permit constituted a judicial act.
Whether the commissioner was justified in denying the permit based on the finding that the proposed sale was an indirect scheme to evade the Corporate Securities Act.

Disposition. affirmed

Quotations verified verbatim against the opinion

“His refusal of the permit was not in any sense a judicial act, but was purely administrative.”

“Upon the facts before him the commissioner was fully justified in finding that the sale was not in good faith.”

“As the statute requires him to refuse a permit to sell securities to the public unless he is of the opinion that such sale will not work a fraud upon the purchaser, his refusal in this instance was in strict accordance with the terms of the statute.”

NOURSE, P. J.

Petitioner brought a writ of

certiorari

to review an order denying his application for permission to sell certain securities and an order directed to certain brokers notifying them that such securities should not be sold to the public. From the decree affirming the orders the petitioner appeals.

The facts appear in the return filed and in the reporter’s transcript of evidence taken on the hearing. The Arizona Comstock Corporation, a California corporation, held a permit to sell certain of its securities under specific conditions

[487]

imposed by the corporation commissioner under the terms of the Corporate Securities Act (Deering’s Gen. Laws, Act No. 3814). After some of its securities were sold under this permit it was allowed to expire and a new corporation with the same name was organized under the laws of the state of Nevada and took over the assets of the California corporation. This concern entered into a contract with the petitioner herein agreeing to sell him 500,000 shares of its capital stock in blocks of 25,000 shares each for which he was to pay' a stipulated price per share ranging from 50 cents to $1.10. Payments were to be made by the petitioner’s unsecured promissory notes bearing no interest. Petitioner immediately commenced the sale of this stock to the public through brokers trading on the San Francisco Mining Exchange at prices ranging from $1.25 to $1.50 per share. It further appeared that the petitioner, who is a lawyer, was financially unable to purchase the stock, and that the whole transaction was planned to facilitate the sale of the stock of the corporation without the restrictions of the Corporate Securities Act. To aid this plan the corporation agreed in the same contract that it would not issue any of its unissued stock during the term of the contract. This method was conceded to be the only means whereby the corporation was able to secure funds for its own purposes during this period. The corporation commissioner determined that the plan was an indirect scheme to dispose of the stock of the corporation with the intent of evading the Corporate Securities Act. He accordingly denied petitioner’s application for leave to sell these securities in California and directed the brokers to refrain from trading in the stock.

Blue v. Division of Corporations

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NOURSE, P. J.

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