by the bank for safe-keeping. On the real estate bonds thus so!d to Spitzer, Rorick & Co. the bank advanced in commissions, $74,325, or 5 per cent. upon the total of such bonds sold to Spitzer, Rorick & Co.
The principal contentions advanced by the plaintiffs and respondents in support of the claim that the contract in question is illegal are: First, that the legislative acts authorizing the issuance of the bonds embraced in the contract required their sale at not less than par and for cash (chap. 153, § 7, and chap. 154, § 6, Session Laws of 1919); second, that the limitation of sale for cash and at not less than par qualifies the authority of the Industrial Commission, and that hence, the commission, being the directors of the bank, cannot evade the limitations by first having the bank invest its funds in the bonds and then making a resale to third parties; third, that the record fails to show a sale to the bank; but, on the other hand, shows affirmatively that the bank did not buy the bonds from the Industrial Commission, and as a consequence that their attempted disposition under this contract is an attempt by the Industrial Commission to sell the bonds for less than par; fourth, that the contract is not binding because not executed in the manner required by § 21 of the Bank Act (Laws 1919, chap. 147), which says:
“Written instruments shall be executed in the name of the state of North Dakota, signed by any two members of the Industrial Commission, of whom the Governor shall be one, or by the manager of the Bank of North Dakota within the scope of his authority so to do as defined by the Industrial Commission.”
The stipulated facts, in our opinion, show beyond a doubt that the bank never became the purchaser of the bonds which it attempted to sell to Spitzer, Rorick & Co. It had them merely for safe-keeping, as its own receipts indicated. It was not carrying the bonds as assets. As it sold them, it remitted the proceeds to the Industrial Commission. In, its letters of advice it expressly acknowledged that it had held the bonds merely for safe-keeping, and that the sale had resulted partly through the activities of the bank incurring expenses 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 therefore must be comnsidered as having been made by the Industrial Commission. In view of the facts, it is not necessary to consider whether or not the bank, under the
