Cole v. State ex rel. Harris, 45 So. 11

Cole v. State ex rel. Harris

45 So. 11 | Miss. | 1907

Lead Opinion

Whitfield, C. J.,

delivered the opinion of the court.

We are all clearly of the opinion that the income features of *648the policy under consideration operate an illegal discrimination, and %re violative of the provisions of our insurance statute. No amount of ingenuity can obscure the fact that such is the purpose, and such the effect, of these income feature clauses.

This proceeding, however, was begun by mandamus, and the prayer of the petition is that “ the commissioner of insurance be commanded to reconsider the policy and application of the insurance company, and to revoke and annul the license to do business in this state heretofore granted ”; and this prayer is based upon the ground, as alleged, that “ such license was granted by the commissioner by mistake of law, as applied to such policies; that the same was revocable and should be revoked,” etc., and praying the court to command the insurance commissioner to “ review and reconsider the application, and, if it should appear that such provisions in the policies of insurance issued by the insurance company did violate the provisions of § 2600 of the Code of 1906, then that the commissioner should be required to revoke and cancel the license of such company to do business in the state, and to exclude the same from the state of Mississippi.” The prayer, it is seen upon close analysis, is twofold: First, that the commissioner should be required to review and reconsider the policy which he had already reviewed, considered, and acted upon; second, that if he should find, from the face of the policy, the income features to be in violation of our insurance law, then that he should revoke the license, etc. It is perfectly clear that the first part of this prayer, that the court should require the commissioner to review and reconsider the policy, is simply a prayer that the court should require the commissioner to do what he had already done. It is not asked that any evidence dehors the policy should be looked to. No such evidence was introduced. The whole evidence in this case, under this prayer, is just the face of the policy, the identical policy the commissioner had before him when he did originally review and consider the policy, and determined to grant the license, which he did there*649after issue to the company, and under which it entered upon its business in this state, relying upon that decision of the commissioner. It is, as we think, perfectly clear that no mandamus could lie to accomplish this object. The commissioner acted judicially in granting the license originally. He was not performing a mere ministerial duty, or doing a mere clerical act. He was reviewing and considering these very income features and other features of this policy, and deciding upon the law applicable to these features, and determining, as a judge would determine, whether they violated any of the provisions of our insurance statute. It is too plain for argument that he did act in this capacity judicially. Having once, in the exercise of judicial power, reviewed and considered the policy on its face, and decided, as a judge would decide, that it did not violate any of the provisions of our laws, and having, in pursuance of that, issued the license to it to do business in this state, and the company having, upon the faith of that decision, incurred expense and entered upon its business in this state for the one year which is the life of the license, the commissioner can no more be called upon to do over that identical thing. But it is said that this statute prescribes two duties: Hirst, the duty to determine whether the license should be granted originally; and, second, to revoke the license although granted, if thereafter the company should be guilty of conduct authorizing its revocation. We think this is a perfectly correct statement of the meaning of this § 2600, but it is perfectly obvious that the effort here to have this license revoked is not because of anything that the company has done since the license was granted which the commissioner did not know it was going to do at the time he granted such license. The very thing which he determined — wrongly, it is true —• at the outset, was that these income features appearing on the face of the policy itself did not violate our laws or public policy, and this he determined on the face of the policy, unaided by proof. Is now this application to exercise what is called his second duty — to revoke this *650license — founded on anything in the world except the face of the policy % Manifestly not. Is there any evidence dehors the policy offered to show that the company has done anything except what the policy sought to authorize it to do, and the commissioner determined it might lawfully do, when he granted the license ? Not one particle of such evidence. So that, in the grip of a clear common-sense consideration of what is here precisely involved on principle, it is clear that, practically, the commissioner is simply sought to be required to revoke the license, not for anything done since the license was granted, not considered by the commissioner, but merely because it is putting into effect the very income features which the commissioner originally decided were not violative of our laws or public policy. In short, it is an effort, not to revoke the license for wrongful conduct subsequent to the granting of the license violative of our laws or public policy, but to revoke the license on the very identical grounds which the commissioner has already determined would not authorize a denial of the license. The court would be placing the commissioner in a very singular situation, and the state of Mississippi in an extremely awkward attitude, if it should now hold that the commissioner should be required to revoke the license, on the very grounds, and no other, which the commissioner held insufficient to authorize a denial of the license. We are, therefore, clearly of the opinion that, in this proceeding by mandamus, the commissioner cannot be required to reconsider, or review, his first action in granting the license, and to revoke it, on the mere face of the policy, which policy he had before him at first, when there is no evidence of any kind, dehors the policy, tó show any wrongful or illegal conduct on the part of the company subsequent to the granting of the license which might serve properly as a ground of revocation, and when it is plain that the effect would be, not to compel the commissioner to perform a mere clerical act, but tp compel him to act in the way the court commanded him to act • — ■ an effort, in other words, to control his discretion. *651The court below, in sustaining the mandamus, entered a judgment revoking the license.

From what we have said, it is clear that the matter is res adjudicate and that the judgment of the court below should be, and it is hereby, reversed and the proceeding dismissed.

Concurrence Opinion

Calhoon, J.

delivered the following concurring opinion.

While fully concurring in the conclusion, I have not decided in my own mind that the policy of insurance in question is violative of any statute of the state of Mississippi.