State ex rel. Phillips v. Fidelity & Casualty Co.
42 N.W. 509
Iowa
1889
Check Treatment
Granger, J.

1. insurance ' company:aobusiness: rem-I. The first question presented by the demurrer goes to the jurisdiction of the court, on g’r°und that certiorari, and not quo warranto, is the plaintiff’s remedy. The argument is upon the theory that the act of the auditor in granting the certificate is quasi judicial, and that this proceeding, in effect, is to review his action. Without ‍​​​‌​​‌​​‌‌​‌‌​‌​‌‌‌‌​​​‌​​‌‌‌​‌​​‌‌​‌​‌‌‌​‌​‌‌‌‍reference to the point in argument as to the office of the common-law writ of quo warranto, we think the statute is conclusive of the question. The writ of certiorari is permitted whenever specially аuthorized by law, and especially when an inferior officer exercising judiciál functions is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally, when, in the judgment of the superior court, there is no other plain, speedy and adequate remedy. Code, sec. 3216. It will be noticed that there is a plain limitation upon the use of this writ, and before granting it the court must inquire if there is any other plain, speedy or adеquate remedy, and, if so, the writ is not available. It may be said that the auditor is not alieged to have exceeded his jurisdiction, or that he has acted illegally; and he is not a party to this proceeding. The action seems to proceed upon the theory that, notwithstanding the certificate of the auditor, the corporation is acting in violation of law, in such manner as to forfeit its rights as a corporation, and that the lеgislature has in terms provided a remedy that seems to be plain, speedy and adequate. Chapter 6, title 20, of the Code is designed espeсially to “ test official and corporate rights,” the latter of which is the very gist of *651this proceeding. Section 3345 provides that “a civil action by ordinary proceeding may be brought in the name of the state as plaintiff! in the following cases: * * * (3) Or against any person acting as a corpоration within this state, without being authorized by law; (4) or against any corporation doing or omitting acts which amount to a forfeiture of its rights and privileges аs a corporation, or ‍​​​‌​​‌​​‌‌​‌‌​‌​‌‌‌‌​​​‌​​‌‌‌​‌​​‌‌​‌​‌‌‌​‌​‌‌‌‍exercising powers not conferred by law.” The allegations of the petition are clearly within the purview of the quoted provisions of the statute, by averring that the defendant, by the making of the several kinds of insurance, has been and is still offending against the laws оf the state. If thus offending, it must certainly be exercising powers not conferred by law. In support of the claim that certiorari is the proper remedy, we are referred to the case of Jordon v. Hayne, 36 Iowa, 9. That case arose under the law providing for townships voting aid to railroads in their construction, and it is held that certiorari is the proper proceeding to review the proceeding оf the board of trustees in calling the election. The acts of the board in such cases are judicial, and no appeal was providеd; hence a review in such cases by certiorari is in accord with the very letter of the law, there being no other plain, speedy or adequate remеdy. If there had been provision for an appeal ‍​​​‌​​‌​​‌‌​‌‌​‌​‌‌‌‌​​​‌​​‌‌‌​‌​​‌‌​‌​‌‌‌​‌​‌‌‌‍in such cases, or another remedy specified by law that was plain, speedy and аdequate, such a holding would hardly have been. The cases of Stubenrauch v. Neyenesch, 54 Iowa, 567; Smith v. Powell, 55 Iowa, 215; Darling v. Boesch, 67 Iowa, 702, —and other cases cited, in no manner militate against this view, but are in accord with it.

2. f0reign iowi’s'reiai latory statute: mentn£oroeII. The second division of the demurrer is in these words: “Because the petition of plaintiff nowhere shows or alleges that any insurance comP913^ incorporated or organized under the laws of the state of Iowa, for the transaction business of insurance, has ever sought to do business in the state of New York, and been refused or precludéd from doing business in *652said state of New York.” Referring to the statement of facts, it will be noticed that by the lаws of New York a corporation organized under the laws of any other state is precluded from making in that state more than one of the kinds of insurance being made by defendant in this state. Section 1154, of the Code of Iowa provides : “When by the laws of any other state any taxes, fines, penalties, licenses, fees, deposits of moneys or of securities, or other obligations or prohibitions, are imposed or would be imposеd on insurance companies of this state doing, or that might seek to do, business in such other state, or upon their agents therein, so long as such laws сontinue in force, the same obligations and prohibitions, of whatever kind, shall be imposed upon all insurance ‍​​​‌​​‌​​‌‌​‌‌​‌​‌‌‌‌​​​‌​​‌‌‌​‌​​‌‌​‌​‌‌‌​‌​‌‌‌‍companies of such othеr state doing business within this state, or upon their agents here.” The demurrer presents the question that the petition does not show that any Iowa company has ever sought to do business in New York and been refused. We could see no purpose in such an allegation other than that the peоple of New York not only enacted laws, but sought their enforcement; and we think it only fair to presume that fact without the allegation, and it is quite probable that as to Iowa companies the law itself is a sufficient restraint. But the ground of the demurrer does not reach a question in the case. It is not the enforcement of the law of New York against Iowa companies that gave rise to the “retaliatory ” law of Iowa; but “ when by thе laws of another state * * * prohibitions are imposed, or would be imposed, upon insurance companies of this state doing, or that might seеk to do, business in such other state,” than the law of that state as against Iowa companies exists in this state against its companies. The law of New York in terms prohibits an insurance company organized under the laws of Iowa from making in New York more than one of the kinds of insurance made by thе defendant in this state, and that law of itself places on the statute book of Iowa the law that the defendant, being an insurance company organized under the laws *653of New York, can make but' one of such kinds of insurance in this state. It is not important nor necessary to the existence оf the law here that an Iowa company should go to New York to test the sincerity of the people in the enforcement of her laws; nоr is such a step necessary to the enforcement of the law in this state. A spirit of comity between the states should induce a belief that their lаws are made in good faith, and for observance. The sting of the adder may be necessary in some cases, to avoid encroachments, but such necessity is not the result of a law or rule of action. See Phœnix Insurance Co. v. Welch, 29 Kan. 672; Home Insurance Co. v. Swigert, 104 Ill. 653.

It is urged in argument that a company organized in Iowa could only make onе of such kinds of insurance here, because it would be prohibited from doing more by our laws, and hence the laws of New York would not prevent it from doing in that state what it could do in this under Iowa law. But we fail to see how that reaches the question. It is not the question if New York does as well by Iowa insuranсe companies as Iowa itself does, but does New York deny ‍​​​‌​​‌​​‌‌​‌‌​‌​‌‌‌‌​​​‌​​‌‌‌​‌​​‌‌​‌​‌‌‌​‌​‌‌‌‍privileges to Iowa companies, or, perhaps, in better terms, does it imрose prohibitions ? If so, the same prohibitions are imposed in return as against New York companies. By the demurrer the fact of such prohibitiоns is admitted, and we think the defendant can legally make but one of the kinds of insurance in this state. It is not necessary to consider the third ground of the demurrer, as under this holding the judgment of the district court must be

Affirmed.