(specially concurring).
I am not convinced that the securities law, chapter 10-04, NDCC, applies to transactions such as the one before us in which the purpose of the transaction is to transfer ownership of the business and the transfer of stock is only incidentally the evidence of that ownership. I would prefer to adhere to the decision in S.E.C. v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1944). Under the facts of this case, I can divine no rational reason for distinguishing between the transfer of a business which has been incorporated and one which is owned by an individual or partnership who have not incorporated insofar as a fraudulent intent is concerned.
I am aware, as the majority opinion notes, that recent decisions of the United States Supreme Court subsequent to How-ey might appear to apply the federal securities laws to transactions such as this one. However, those cases were decided many years after North Dakota enacted its securities statutes. Howey had been decided when North Dakota enacted § 10-04-15(3). See N.D.S.L.1959, ch. 110, § 10. Where a statute is taken from another jurisdiction and adopted without change, we assume our Legislature adopted it with the construction placed upon that statute by the court of last resort of the jurisdiction from whence the statute came. State v. Kisse, 351 N.W.2d 97 (N.D.1984). But in construing a statute which adopted the language of a statute of another jurisdiction, we are not bound by decisions of the courts of that jurisdiction tendered after our Legislature enacted the statute. Id. Although subsequent decisions of that jurisdiction may be persuasive authority, they are not binding. Amerada Hess Corp. v. Conrad, 410 N.W.2d 124 (N.D.1987); Loken v. Magrum, 380 N.W.2d 336 (N.D.1986); State v. Wells, 276 N.W.2d 679 (N.D.1979), cert. denied, 442 U.S. 932, 99 S.Ct. 2865, 61 L.Ed.2d 300 (1979).
As I have noted above, I am not persuaded that, under the facts of this ease, we should depart from the Howey test. Furthermore, as the majority opinion notes, the trial court found, in effect, that there were no omissions of material facts and therefore we need not decide whether or not the securities statutes apply to this transaction.
I concur in the result reached by the majority opinion.
GIERKE and MESCHKE, JJ., concur.