2 N.D. 36 | N.D. | 1891
The opinion of the court was delivered by
The affidavit upon which the alternative writ issued was made by the secretary of relator, and states, in substance, that the relator is a mutual hail insurance company, organized under the laws of the territory of Dakota, and has been engaged in business in the states of North and South Dakota, with its principal office at Plankinton, South Dakota; that the relator has at all times fully complied with the laws of North Dakota, and is therefore authorized to do business in said state; that the defendant, as insurance commissioner, issued to the relator a certificate of authority to do business in North Dakota in 1890, and at the close of that year, and on January 27,1891, relator filed with the defendant its annual statement, as required by law, which defendant accepted without objection, and has at no time given relator notice of any defect therein; that relator has literally complied with all the requirements to authorize it to do business in this state during the year 1891, and on January 27,1891, defendant issued to it a certificate of authority for said year. On the same day relator tendered to defendant the fees for filing such statement, and for furnishing copies for publication, and for issuing said certificate. Defendant requested affiant to hold said money until some time later, which relator did. That on February 6, 1891, relator sent said money to defendant, who on March 3, 1891, returned the same. On March 10, 1891, relator again tendered said fees, together with the legal fees for issuing certificates to five agents, all of which the defendant refused to accept; and relator deposited said fees in the name and for the use of said defendant in the James River National Bank, and notified defendant accordingly. That defendant has failed to publish such annual statement, or designate th§ newspapers in which the same may be published. That on February 19,1891, the defendant, by letter, attempted to recall relator’s certificate of authority, and again, on February 25th, defendant, by letter asked relator to surrender such certificate, and stated that said fees would be returned later. On
The attorney general contends that this proceeding is not a special proceeding, but is a civil action, and, consequently, that it should be brought in the name of the'real party in interest, i. e., in the name of the Dakota Hail Association of Plankinton, S. D., and should not be brought in the name of the State of North Dakota ex rel., etc.; citing Comp. Laws 1887, §§ 4830, 4870, 5005, 5518; 14 Amer. & Eng. Enc. Law, p. 217, and cases cited. Section 4830 in terms refers only to “actions at law and suits in equity,” as such actions and suits existed prior to the innovations made by the reformed procedure. No reference is made to a special proceeding. See Comp. Laws 1887, §§ 4810, 4812. Section 4870 'declares that “every action must be prosecuted in the name of the real party in interest,” etc. This obviously has reference exclusively to those remedies formerly had by an action at law or by suit in equity, and we think it would be a violation of the plain intent of the statutes to extend its meaning so as to include special proceedings which are not mentioned in § 4870, but on the contrary, are regulated ■by distinct and special proceedings of the statute. Comp. Laws 1887, §§ 5505, 5536.. The attorney general also cites the following authorities: State v. Marston, 6 Kan. 524; Bobbett v. State, 10 Kan. 15; State v. Board, 11 Kan. 67; People v. Pacheco, 29 Cal. 213; Territory v. Cole, 3 Dak. 301, 19 N. W. Rep. 418. Doubtless these cases, especially that cited from California, with others from that state not cited, tend to support the position taken by the attorney general. With respect to the territorial case, it will be noticed that the case seems to turn upon the non-residence and non-official capacity of the relator, rather than upon the question how the procedure should be entitled. The use of the name of the territory is not criticised in the opinion. In the state of Kansas the statutes regulating the remedy by mandamus differ materially from those of this state. The Kansas enactments pointedly recognize the
We think the statutes regulating special proceedings give countenance to the existing practice. Comp. Laws 1887, §§ 5518, 5527. We therefore hold that the name of the state was properly inserted in the title of this proceeding. High, Extr. Hem. § 430. We still add, as a guide for future cases, that the name of the state should be inserted in the writ in connection with the name of the relator in all cases w7hether the matter is one in which the state as such is strictly a party in interest or not, or whether the question is one of public concern or a purely private dispute. The statutes of the state have assimilated the mandamus proceeding to a civil action, but have not made it a civil action, as is done in the case of quo warranto. Comp. Laws 1887,. §§ 5345, 5361. We think it will be proper to add, with a view to settling a very embarrassing and much controverted question of practice, that in cases where the state, as such, is directly interested as a party, the attorney general should apply for the writ, or in some manner signify his assent to the proceeding ; but on the other hand, where the controversy does not concern the state, as such, but does concern a large class of citizens in common, as, for example, the citizens
Where the right sought to be secured by the writ is private only, the relator must, of course, show that his individual interest is affected in some way peculiar to himself. See authorities supra. It may be added that under § 4, c. 21, Laws 1890, defining the duties of the attorney general of the state, it would not be the duty of that officer to represent the state officially in court or in any case where an inspection of the papers would disclose the fact that the name of the state is inserted in the writ as a formal or nominal party only, and that the state, as such, is not interested as a party in the subject-matter. It follows from what has been said that the district court did not err in holding that this proceeding is properly instituted and entitled in the name of the state. The record discloses that many of the material averments in the affidavit of the relator are not embodied in the alternative writ, but are simply referred to and adopted as a part of the writ, without being annexed thereto. The point is not made on the motion to quash the writ, and we shall dispose of the case wholly on another ground. But we are clear that the omission to incorporate in the alternative writ any material fact contained in the affidavit would be fatal on demurrer or motion to quash the writ. The writ only is served on the defendant, and the defendant answers only to the alternative writ in cases where such writ issues. The writ should be treated as a declaration at
Proceeding to the merits of the motion to quash the writ, we are called upon to determine whether the facts stated in the writ, including for the purposes of this case all the facts set out in the affidavit, are sufficient in law to entitle the relator to the peremptory writ. The attorney general contends that the affidavit shows affirmatively and clearly that the relator is not entitled to invoke the aid of the writ for the purpose of compelling the commissioner of insurance to do the various acts and things required to be done by the writ, viz., to designate the newspapers in which the relator’s annual statement should be published, and to issue the certificates of authority to enable the local agents of the relator to transact business, etc. § 3053, Comp. Laws 1887. The groundwork of the contention-is that the insurance company complaining is not entitled to the writ, because it is not, and was not when the writ issued, legally entitled to have its annual statement for 1890 published, nor legally entitled to have certificates issued to its local agents enabling them to do business for the current year, because, as counsel contends, the company itself was and is without authority to do business in this state; the certificate issued to the company by the defendant for the year 1891 having been “canceled” and declared “null and void,” and the company notified thereof by a formal letter from the commissioner, dated March 15, 1891. The motion to quash admits the facts set out, and it is conceded that the various letters constituting the exhibits were written by the insurance commissioner and received by the relator prior to instituting this proceeding; but the relator denies the authority of the commissioner to revoke the relator’s certificate on any grounds set out in any of the letters. In his brief counsel for relator says: “It is admitted that the commissioner of insurance has authority, in some cases, to revoke and cancel certificates issued by him, but it is vigorously denied that this is one of such cases. There must be cause for such action on the part of the commissioner. Having once authorized an insurance company to commence business in this state,
The issues presented require a consideration of the nature and extent of the authority vested in the insurance commissioner with respect to granting and revoking certificates of authority to do business in the state. Section 16, c. 69, Laws 1885, provides that insurance companies doing business in the state shall annually, on the 31st day of December, make and file with the insurance commissioner a statement, as prescribed in the act, showing in detail its business affairs and financial resources, etc., which statement, together with the certificate of authority for the company to do business, are required to be published in certain newspapers, as indicated by said § 16. Section 25 of said chapter is as follows: “ It shall not be lawful for any agent or agents to act for any company or companies referred to in this act, directly or indirectly, in taking risks or transacting the business of fire, cyclone, tornado, hail and inland navigation insurance in this territory, without procuring from the territorial auditor a certificate of authority, stating that such company has complied with all the requisites of this act which applies to such company. The statements and evidences of investment required by this act shall be renewed from year to year, in such manner and form as required by this act; and the auditor, on being satisfied with the capital, securities and investments remaining secured as hereinbefore provided, shall furnish a renewal of the certificate as aforesaid.” Section 28 is as follows: “If the auditor has, or shall have, at any time after examination, reason to believe that any annual statement or other report required or authorized by this act, made or to be made out by any officer or officers, agent or agents of any corporation, association or partnership incorporated by or organized under the laws of any state or territory of the United States or any foreign government, is false, it shall be the duty of said auditor to immediately revoke the certificate of authority granted on behalf of said corporation or association, and mail a