*1 512 Bank, 49 Ariz. 347; 221 First Nat.
1949, (2d) Wisе S.W. v. Crowell, 1154; 146, (2d) 65 School Dist. v. Pac. Jacksonville 693; 640, 317 11, Kell, 1957, 211 Or. 33 52 Pac. Callbeck v. Or. 167, 202, N.W. (2d) 591; State, Betts 67 93 589, Neb. Pac. v. 1115; Chamber Stephens Querry, 1904, 97 N.W. 168; v. Iowa rel. Hector 839; MacVicar, 1898, lin 76 N.W. State ex v. Iowa 876; People ex rel. Green v. Trainor, 848, N.W. v. 91 Neb. Hun. 11 N.Y. S. Cohoes, 57 City Board of Ed. of (2d) 920. Cohen, 206 Md. 109 A. Price v. appeal is dismissed. BLACK, THE W. M. ADAIR,
MR. JUSTICE HON. MR. BOTTOM- Judge (sitting place District JUSTICE LY), concur.
MR. ANGSTMAN. I JUSTICE dissent. Hag- I rel. shows, thought the case of ex
As the record State erty Rafn, (2d) 918, should have v. Mont. Pac. merits, I this case. on its think the same about been decided joins ANGST in MR. JUSTICE MR. JUSTICE CASTLES MAN’S dissent. HOLMES, J. WAITE, JOHN
GARDNER C. Appellant, etc., Montana, al., et Re State Auditor State spondents. No. 9569. 1958. 1957. June Decided
Submitted December (2d) Pac. *2 Picotte, Helena, & Henry Loble, Loble Gene A. Picotte and Helena, argued orally, appellant. for Atty. Helena,
Forrest H. Anderson, Gen., Leapbart, C. W. Jr. Hoven, Plentywood, Vernon Langen, Glasgow, Kline & Vernon Hoven, Plentywood, Kline, Glasgow, argued and John Marriott orally, respondents. for
MR. CHIEF JUSTICE HARRISON:
Tbis is an appeal judgment granting from a tbe defendants’ judgment pleadings denying prayed motion on tbe relief for by plaintiff. for tbe Waite, a
Tbe in tbis action is Gardner C. licensed agent Holmes, in tbis insurance state. Defendants are John J. Montana, and, officio, as State Auditor of tbe ex tbe State Insurance, Holmes, as Commissioner of hereafter referred to Fidelity Company, Ltd., and Saskatchewan Guarantee corporation. hereafter referred to defendant is a plaintiff alleged complaint Tbe in bis that: He resi- Montana, duly and is licensed dent and citizen of tbe State of under the of Montana, business, profit, laws and has as for his the transaction of insurance business fire and allied lines within agent Montana as companies various insurance both domestic and foreign, companies duly which said are licensed un- der the laws of Montana to do such insurance business therein. compensated in the course of his business on a basis, according commission to the amount of insurance business obtained him companies. for such defendant, 2. The corporation is a purported insurance province Saskatchеwan, Canada; defendant, Holmes, 3. The John J. Auditor of State Montana, officio, Insurance; and ex the Commissioner of
4. Prior 1, 1949, to November the defendant was private corporation, duly organized existing province under the laws of the Saskatchewan, Canada; thereabouts, 5. On November Crown Nations, the right of the Province British Commonwealth of *3 Saskatchewan, became, ever since has been the sole of and owner Company, operator and the sole and mana- of said Saskatchewan date, ger the last mentioned said Saskatche- thereof. Ever since fact, been, although in truth and in not nom- Company wan has integral, organic part an of inally, and arm of and a branch province government of the of Saskatche- and identical with indeed, department it is the Satkatche- that, wan; alleging business and affairs are con- government, and all of its wan government. govern- by functions of ducted and are general insurance business does ment of Saskatchewan name in the of said Saskatchewan of Saskatchewan Province writing, selling types all insurance in making, and Company, insurance; except Saskatchewan life Holmes, capa- acting his official 6. On November purporting to act Commissioner and city of State Insurance 40-1303, 1947, issued pursuant 40-1302 and R.C.M. to sections dеfendant, foreign as a supposed to the license Montana in fire corporation to do business within the State of and allied lines of insurance, designated as those lines are subdivision 1 40-1409, of section R.C.M.
7. Since the issuance supposed of said license on November 14, 1953, the defendant has conducted insurance business with- in the State of Montana fire and lines, competition allied plaintiff; with the and prays Plaintiff then granted that the license by Holmes corporation
to the defendant void, be declared and of no effect upon grounds whatsoever that it violates 11, section article XV, of the Montana Constitution 40-1422, and section R.C.M. 1947, because companies domestic of like character are forbidden by provisions of section 26, V and 1, article section article XIII of the Montana enjoy Constitution advantages being chartered, owned, operated, by govern- financed ment, special under or law, local defendant; as is the violates section article XV, by because government virtue ownership the corporation defendant permitted would be to en- gage in destructive plaintiff, with the destroy his- business disrupt general economy of the State of Mon- tana; negotiations that the carried on between Holmes and the corporation defendant fаll the proscription within clauses 1 and I article of the United States Constitution, en- joining the states from entering any treaty, agreement into compact with a foreign nation. April 16,
On Holmes filed a motion to strike and a general complaint demurrer to the which were subsequently overruled the district court. September special
On the defendant its general filed overruled, subsequent demurrer which was to which both Holmes corporation and the defendant separate filed their answers.
Then, on December the defendant and Holmes joint judgment filed a motion for pleadings on the on fol- *4 (1) That lowing grounds: plaintiff proper was not a party an palintiff bring to action to cancel or declare null and void a foreign company license of a insurance to do business in Montana; (2) plaintiff State of did not have sufficient in- proper party in lawsuit be a to
terest the outcome of this his admin- bring action; (3) plaintiff pursued had not remedies, as matter law must be exhausted istrative action; (4) that precedent bringing as a condition this this there no issues before court. pleadings from the were factual judg- the motion 7, 1955, hearing March was held on for On April pleadings, 8 the court filed its order ment on the and on motion, judgment pleadings on granting the entered sustaining grounds for the mo- favor of the defendants. The plaintiff (1) order: “That tion were stated the court’s bring declare null proper party is not a an action to cancel or foreign company of a to do busi- a license void Montana;” ness in the State of action, this
(2) “That, pleadings as shown interest in the outcome this not have sufficient does ’’ proper party bring the action. law suit to be a perfected appeal. this judgment this has From judgment pleadings, on the appeal an from a Since this is applicable judgment is summary the rules to such neces- sary properly frame the issues. Co., Ry. 85 Mont. Butte Electric
In Mihelich v.
judgment
motion
540, 546, this court said “the
Pac.
sufficiency
is,
effect,
a demurrer to the
pleadings
on the
pleading
complaint. However, on such a belated attack
clearly bad, nor if
held insufficient unless
there
not be
should
sufficiency. Equity Co-op.
to such
Ass’n
doubt as
is reasonable
63 Mont.
Co-op. Milling Co.,
Pac.
Sam
Equity
v.
Co., 62 Mont.
“It construed, liberally complaint, allegations if the ranted see any theory.” To the same effect on of action a cause state 866, 868; Patterson 426, pages Pleading, 71 C.J.S. (2d) 102, 103, App. 203, Pac. Indemnity Co., 119 Cal. Pacific
517 presented We upon appeal now consider first issue this n —whether plaintiff proper party is the to have cancelled foreign null and declared void license of a insurance company.
As in stated his main reply brief, brief and bases his that he proper party bring contention this action is on the basis he of Montana, is a “resident and citizen is [*] profit, [*] [*] duly * licensed * [*] transaction [*] [*] [*] of has as insurance business his business, [*] [*] [*] as agent [*] [*] [*] of various insiirance companies,” who are licensed in Montana in with the defendant corporation; that the unlawful action of in issuing Holmes defendant a license to enter into insurance business Montana, in in competition plaintiff, with the destructive plaintiff’s business, gives right in bring which effect him the Emphasis supplied. this action.
It that plaintiff predicates is evident right upon his to sue membershiр his in “fraternity” agents, who must compete with companies the wares of other insurance they agency. whom have no alleges Plaintiff he has paid-up his membership “fraternity” by virtue license fees paid he has the State of Montana.
It appear gravamen would from the plaintiff’s complaint basically, and the content of his briefs that bringing he is suit enjoin competition from one whose advent into competition upon with himself based unlawfully void license—one issued. interrogatory, plaintiff’s proposition Stated in the form of an any right enjoin phrased: Does have com- be competitor operating petition stems from under a void franсhise, competitor’s such license or or a to have license or revoked? cancelled amply apparent
Thus becomes that whether the void license alleged, foreign government, is issued as to a corpo- a domestic person, natural is unimportant, plaintiff must, ration or a since contends, upon he base his cause of action alleged his prop- erty competition. be free unlicensed
518 Ct. Ickes, 464,
While Alabama Co. v. 302 U.S. S. Power Tennes 82 Ed. Co. v. L. and Tennessee Electric Power Ed. see 83 L. Valley Authority, U.S. upon making its order relied district court defendants, distinguishable the instant case favor are respects, nevertheless, some certain statements contained opinions properly framing prob those will aid this court in presented. lem Ickes, supra,
In Alabama Power Co. v. *6 only pertinent question phrased: S. the is “The Ct. then, legal right petitioner do is, What enforceable inquiry, threaten?” alleged wrongful agreements invade or While competition, the Alabama “lawful” as dis- Power case involved for here competition, as contended tinguished from “unlawful” that by plaintiff, can be cited for rule com- nevertheless absque “right” unless petition damnum some is infarta injured. plaintiff is by Mr. Justice Rob proposition amply illustrated
The same Power speaking in the Tennessee Electric Co. erts for court 366, “Thеy 118, 138-139, 59 370: case, supra, 306 U.S. S. Ct. Authority’s present and plaintiffs] stigmatize the seek to [the competition ‘illegal’ by reliance on their franchises proposed as injury or destruc they say property protected are *# * by competition. tion nor that neither their characters position is “The of the vice monopoly a or ren- grant of involved the local franchises their corporation, aas illegal. to exist competition The franchise der specific in the absence of utility, a public as and to function to free of right be subject, on the creates no charter contract legal no cause com- affords competition, and authorizing another subsequently by state’s reason of the plaint field.” in the same and.operate to enter property right plaintiffs had no way, Or, stated another rules, by we can injured. the above Governed been which had right thusly: plaintiff If does have proposition state the in- defendant, any then of the competition to be free 519 jury flowing injuria. from such absque damnum support argument
In right bis he property that had a to protect, cites the cases of Towsley, Johnson v. Wall. 72, 80 U.S. L. Township Ed. Wiggins, School v.
Iowa
The Johnson supra, patentee was a suit from the government federal patent paramount have his declared defendant’s; patent being subsequent defendant’s in time to plaintiff’s. Although recognized generally the court Secretary act of the final, regard rights Interior is with land, plaintiff, by federal the court held that virtue of his prior, patent, valid had sufficient contest the action Secretary in issuing subsequent patent invalid to de- fendant. School Township Wiggins, supra,
The facts in the ease of clearly distinguishаble are from the there instant case and is no opinion any need burden the discussion thereon. *7 case,
The Truax a suit an alien supra, was resident of Arizona, discharged employment who was from his because his employer penal comply felt bound to statute Arizona employ which made it a misdemeanor for a to less business than per eighty qualified cent or native-born citizens electors. The Supreme Court the United States declared the statute un it equal protection constitutional on basis violated clause of the Fourteenth Amendment the United Constitu to States tion, citing 356, Wo 6 Hopkins, 359, Yick v. 118 U.S. S. Ct. 1064, 220; Wong Wing States, 30 L. 163 Ed. v. United U.S. 242, 16 228, 977, Wong 41 L. United v. S. Ct. Ed. States Ark, 890, Kim 169 U.S. Ct. L. Ed. S. clearly decision. The support of their facts in the Truax case are from one. distinguishable the instant attempts right bring
. this predicate next to his to Plaintiff upon grounds, purposes which of this action two other for the opinion (a) involving licensed will be denominated: those cases ‘1 that The professions, allegedly which for the rules stand practice occupation profession property to or is a licensed right protectible equity against an intruder into the field who validly li validly person “The licensed.”, is not who his proper party bring protect prop is a to action to censed erty Corporation Commission, 278 right.”,- (b) Frost L. Ed. 483. contentions, discussing the merits of the above would
Before basic rule be well to set out what this court considers to be the contained in Restate- governing plaintiff’s of action. It is in a engages busi- ment, Torts, page 527: “One who profession legislative ness in violation of a enactment which or absolutely persons therein, either or prohibits engaging liability an- permission, subject prescribed without a profession in conform- engaged other who is the business or ity enactment, if, only if, with the but “ (a) protect is to purposes one of the enactment against competition, and other unauthorized liability.” negative such does not “(b) the enactment find the follow- page at we In d of work commеnt prohibits per- legislative “A enactment ing statement: securing permission in a without engaging profession sons from authority may for public have one proper so from the do prestige professional purposes of its permission practice proper those who have the reputation of (a) requirement so, it Clause If satisfied profession. section. * of this #* may prohibit Though legislative enactment “e. per particular business without engaging in a persons authority, purpose of the en public proper mission or affect be, to restrict actment of revenue or record provide a source business, but rather Thus, examрle, supervision.. inspection police to facilitate *8 an enactment prohibit persons operating a shoe shin- ing business or peddling on the streets first without se- curing license, given which is any applicant upon to be to payment stipulated of a object fee. The of such an enactment levy is to a tax rather than protect persons against to unau- competition. thorized To its violation the rule stated in this Section apply. does not Likewise, may prohibit an enactment persons from operating a saloon or pawnshop without first securing a license granted only which is to be applicant if the good found tо be of moral posts character and a bond for faithful obedience prescribed regulations. purpose of such an enactment is to facilitate the enforcement of the criminal law rather than protect persons against unauthorized com- petition ; and to its violation the rule stated in this Section does apply.”
Governed the rule cited in the Restatement let weigh us support the authorities proposition (a) cited supra. Plain tiff Adjustment cites Smith Illinois v. Finance Co., 326 Ill. App. 654, (2d) 264; 63 N.E. Ezell Ritholz, 188 S.C. Kentucky Co.,
S.E. and Hobson v. etc., Ky. Trust (2d) 197 S.W. cases, supra,
The Smith and Hobson rights involved attorneys enjoin defendants from practice the unlicensed profession. law their While both cases cited do not attempt to rationalize view, the Restatement is amply nevertheless it ap- parent that their falls purview within the of comment d Restatement, supra. Thus members legal profes- protected sion are from those attempting practice without a. the legislature license because had for purposes one of its “professional prestige reputation of those proper permission who have practice” law.
Other cases have been upon grounds decided that attor- neys court, are officers of it is duty as officers protect of the court to сourts, general public and them- against illegal practice selves of law. Depew See v. Wichita *9 Ass’n, (2d) 214, 217;
Retail 141 Kan. 42 Credit Pac. 43 Injunctions, 123, pages 662, C.J.S. section category, Ritholz, supra, third Ezell The case cited this was practice optometry a suit to restrain the of unauthorized a a burdening opinion without license. Without this with dis- of or not that cussion whether the court case found one of purposes licensing profession optometry the of was of the to protect against competition, it well unauthorized would be to Hampshire Jewelry point Co., out that New Board v. Scott (2d) 513, 517, 90 9 Inc., N.H. A. and MacBeth v. Gerber’s (2d) 366, 367, are R.I. A. both cases in which the legis- thе Restatement courts have followed test of whether the had, licensing optometrists, purposes lature for of its the one protection optometrists competition of the unauthorized against complainant in that optometry. The courts found his regard, disallowing to sue. See also Cook v. Normac involving by 4 A. Corp., (2d) 747, 749, 176 Md. a suit a dis- against competitor theatre an in which the court unlicensed plaintiff’s by applying to sue the Restatement test. allowed within Restatement view ? case, supra, come the Frost Does business, ginning owned a cotton In Frost ease defendant, from the State permit a operated under which he statute, Ann., St. 17 Okla. By Corрoration Commission. public utilities and their to be gins declared seq., were et public ginning seed cotton be a purpose of to for the operation gin cotton, necessary permit to obtain It business. was showing public necessity. first A subse- satisfactory amake to the statute which allowed was added quent proviso cotton-ginning without in the business engage cooperatives necessity. cooperative public Defendant showing of precedent plaintiff in into permit to enter applied enjoin brought suit to the issuance Plaintiff Oklahoma. Durant, enjoin co-op establishing defendant and of the license ground proviso Durant, upon was gin cotton equal process and contravening due invalid Amendment. first conten- Fourteenth law clauses tion made was that property right had no to be operations affected co-op, and therefore no stand- ing to provisions invoke the of the Fourteenth Amendment or to appeal equity. court of
Mr. Justice Sutherland, speaking for the United States Su preme Court, examined the statutes of Oklahoma with relation to the cotton-ginning business, they noting that; are public utilities, a public business; charge commission in gins cotton having control over them has the power same authority itas had in relation transportation and trans mission companies power rates, charges to fix regulations. — pages 519, At 520 and 521 U.S., page of 278 at Ct., 237 of 49 S. the court said: *10 right
“It that follows the operate gin a and to collect tolls therefor, provided by as the statute, Oklahoma is nbt a mere license, franchise, granted but a by the state in consideration performance of the public of a service, and it as such consti- a property right tutes protection within the of the Fourteenth [Citing Amendment. cases.]
“In California v. Pacific Railroad Co., supra, 127 [Central] 1, pages 40-41 L. Ed. 150], a [8 franchise right, privilege is defined power public as ‘a or concern, ought by private which not to be exercised individuals at their pleasure, mere will but should be reserved for public con administration, either the by government trol directly, or by agents, public acting under such regulations, conditions and government may impose in public as the the interest, and for public security, [*] [*] [*] No private person can establish public highway, public ferry, a or railroad, a or charge tolls for the use of direct or derived. “ * n [*] [*] Under these same, These are without conditions, franchises. authority engage * * *’ from the Legislature, the business in ginning] is not a matter of common right, cotton a privi- but [of which, except lege, the exercise of virtue of a public grant, derogation power. of the would be state’s Suсh a privilege, test, is by every legitimate a franchise.
“Appellant, complied provisions having with all statute, acquired right operate gin city in the of Durant by valid grant through from acting the state While acquired preclude commission. thus does making the state grants others, is, similar valid never- theless, against any person attempting operate gin exclusive obtaining permit or, thing, without what amounts to the same against attempts permit, one who to do so a void either under equity of which events the a court to re- owner resort to illegal operation opera- upon ground strain the that such injurious tion is property rights. [Citing an invasion of his injury such threatened an invasion is the authorities.] impairment of the is no business, owner’s for which there ade- quate remedy at law.” upon para- last heavily
Plaintiff in the instant ease relies for the action. graph quoted providing precedent present para- on precedent may depended be However, no pro- property finds a which was graph unless one first quite evident that court’s reason- teetible—a franchise. It rule, is, Restatement the statute ing clearly falls within the purposes for one its must have violated clearly Sutherland competition. Mr. Justice from unauthorized carefully examined the Okla- when he recognized this as rule gin up business and camе governing the cotton homa statutes a cotton permit operate that a to own conclusion franchise, equity. We find protectible courts gin awas Torts, Restatement, c of following statement comment *11 clearly 529: “An exclusive franchise 527, 710, pages persons engaged specified protect purpose to manifests a competition, but that purpose may unauthorized against business containing provisions no for exclusive in enactments appear legislation generally prohibits persons Thus, privileges. utility securing without first public business in a engaging authority. proper governmental One of the permission prevention legislаtion commonly is the of so such objects engaged those in the in- loss to to cause much
525 dustry with resultant disruption deterioration or of the service. One of commonly prescribed the factors by statute for determin- ing permission whether engage grant- in the business is to be probable ed is the effect of the competition upon added business already of those in the field.”
The comment in merely Restatement is way another of stat- ing what Mr. emphasized Justice Sutherland case, the Frost supra. subsequent cases to the Frost decision have been careful
to delimit application its a situation which the to en gage in complainant's ocсupation business or amounts more than license, mere but amounts to a property franchise or right. See Light Carolina Power & Co. v. South Carolina Pub lic Authority, Service 4 Cir., 1938, 94 (2d) 524; F. 520, Corpo ration Lowe, Commission v. 281 431, U.S. 50 435, 397, S. Ct. 74 945; L. Ed. Arkansas-Missouri Corp. City Power Kennett, v. 8 Cir., 1940, 113 (2d) F. 595, 596; Capital Transit Co. v. Safe way Trails, Inc., 1952, 92 App. 20, U.S. (2d) 708; D.C. 201 F. R. B. “Dick” Wilson, Inc., Hargleroad, v. 165 468, Neb. (2d)
N.W. 177; Sheridan-Wyoming Krug, Coal Co. v. 84 U.S. App. D.C. (2d) 282, 283; F. Optometric Delaware Corp. Sherwood, v. Del. (2d) 812; 128 A. New State Ice Liebmann, Co. v. 76 L. Ed. County Greenwood v. 4Co., Cir., 1936, Duke Power 81 F. (2d) 986, 998, 999. Optometric
Delaware Corp. Sherwood, supra, (2d) A. 812, 814, presented question of whether or not licensed optometrists may enjoin practice optometry by unlicensed persons. The court in holding they could not said: ‘‘ granted Whether not such a franchise has been depends fundamentally upon the construction of the statute itself. It appear statutory purposes must protect one is to competition by the licensee from unfair non-licensees. 3 Re- * * * Torts, statement of section 710. apparent that, reading Optometry “It to us the Delaware 2101-2119], Law as Del. C. whole sections it was enacted [24 *12 general public for the of the health of the * * *
incompetent practice
optometry.
of
remotely
provision in the
can
“We can find no
statute -which
optome-
creating
property right
be considered as
in licensed
persons.
competition
trists to be free from
from unlicensed
* * *
“* * *
Corporation
Frost
plaintiffs
The
also stress
That
Commission,
The competition. unauthorized sue, therefore, governed plaintiff’s standing to determine To in Mon- authorities we must examine the statutes by the above agents’ insurance activities to governing regulation of tana pro- purposes of the of the enactments was to if one determine competition. them from unauthorized tect clearly legislature manifested intent We believe 40-1308, pro- R.C.M. of provisions any type business transacting of insurance (1) Before vides: agent as an from the commis- license procure must agent each fee; (2) appli- Each payment $5 upon insurance sioner of by the blanks furnished commis- must, upon for license cant residence, place of business and name, age, sioner, his disclose state his application; date of years prior to fоr five occupation business, insurance whether he is knowledge experience agency, company or and whether any other indebted agency had an insurance contract he ever reasons for what an official be vouched applicant shall (3) cancelled; proposes act, company for which he representative applicant’s character; upon in effect represent shall who employment termination company notify shall the insur- commissioner; ance (4) The commissioner of insurance sus- pend or revoke a upon showing agent license has vio- any lated Montana, insuranсe laws of has been convicted *13 of felony, untrustworthy incompetent or has been shown or to act as an agent; (5) any insurance that person Provides who provisions subject violates the of this act shall be to fine or imprisonment or both.
In 16 Appleman, Insurance Practice, Law and page 3, the author states: relating
“Statutes agents highly to insurance regulatory are penal and often form, safeguard and are intended to rights dealing agents, they those with though insurance even may also raise object some revenue the commonwealth. The for providing laws agents, brokers, licenses and solicitors for for is, therefore, more рublic pro- them to for vide revenue. explicitly, More it it has been stated that is de- protect public sired to money surrendering its in ex- change questionable pieces paper or worthless denominated for policies.” insurance Emphasis supplied.
In find following section 8633 rule stated: “A statute we am, authorizing authority the issuance act of certificate of is, therefore, police regulation broker considered a tax making rather than a measure. And statute it unlawful one to act as an insurance solicitor without a license must policy-holders.” protect Emphasis be supplied. construed quite apparent governing It that our statutes the issuance agents purposes
of licenses to has for its the same ulti generally by Appleman, supra. mate aims of statutes as indicated right therefore, squarely plaintiff’s The action falls within the supra, Restatement rule e contained comment which states merely purpose “police” regu of the statute is that where supervision, or then has no of action. lation See Corporation Sherwood, Optometrie supra. also Delaware Justice Matthews in query presented Mr. New Or Ellerman, Ed. leans, M. & T. R. Co. v. L. 1015, particularly apt at “But if point: this itself, wrong injurious, however is not a he could of which * * * complain against a person natural does it be- how * * * merely come so because the author of is a [for- eign government] ?” foregoing
For the reasons this court to affirm is constrained judgment giving judgment district court to defend- pleadings ants on grounds on not the was proper party bring this action.
MR. ADAIR, THE JUSTICE HONORABLE EUGENE Judge, B. FOOT, sitting place District JUSTICE of MR. BOTTOMLY, concur.
MR. (dissenting). JUSTICE ANGSTMAN: foregoing opinion. I concede agree I do property franchise agent has no licensed insurance by compe- against injury or destruction protected be Electric followed Tennessee rule stated and tition within the *14 118, 59 Authority, Valley 306 U.S. Co., Tennessee Power L. Ed. S. Ct. however “lawful”
I think there is a vast difference between the matter competition competition “unlawful” which is and by plaintiff. complained of here he obtained agent licensed as an insurance plaintiff When was rights privileges. Loucks, Wyo. 485, Pac. in
As the stated State v. court re- agent, “The speaking licensed insurance 39, when right Though license. it be under the lator had some of value property, not was nevertheless granted it was that any arbitrarily taken from him more not be him and could be taken. Dent v. personal property could so than his real 231, 32 L. Virginia, 129 U.S. Ed. West [State of] 623.” prosecute to institute and has sufficient
I think he masquerading as a another from licensed prevent proceedings to agent insurance when in his license and is fact was unauthorized alleged course, say and void as here. I that the license Of do corporation defendant in fact is void as unauthorized under charge is complaint law but that made and for the purpose proceeding allega- of this we must assume that the tions are true. made
I majority opin- do not believe statement relied on Restatement, ion page 527, contained Torts section has any application that here. That statement substance is agent unlicensed is liable to licensed under one the conditions stated, there of which prescribed pur- on as a condition that the * * * pose licensing protect against statute is “to ’’ competition. unauthorized That statement play does not come into here because does not a right contend that he damages has to recover for in- jury to his business. he recognizes fact that that he has no cause of action damages very why reason proceeding he is against the
state auditor have the unlawful license issued to the defend- ant revoked. if we that
Furthermore assume the statement from the Re- statement, majority relied on in opinion has application here, by I think necessary implication Legis- our by licensing lature protect intended drdy statute to licensed agent against competition. insurance unauthorized I think our Legislature legal promised effect those holding duly as an agent issued license agents that unlicensed would not be tolerated in the same field licenses would be only possess requisite issued to those who qualifications. I has a sufficient interest and think to seek against illegal its the courts unauthorized sought. Compare North Arlington here Na *15 Kearny & Savings Ass’n, Federal Loan 3 Cir., tional Bank (2d) 564, certiorari denied S. F. Ct. 617. 30, 96 L. Ed. be judgment
I should reversed. think the MR. JUSTICE CASTLES:
I ANGST- dissenting opinion concur of MR. JUSTICE MAN. doing Hopkins Heating
EARL HOPKINS, and business DIS Plumbing, Respondent, Plaintiff v. SCHOOL TRICT NO. Missoula al., et Defend County, Montana, Appellants. ants No. 9683.
Submitted March June 1958. 1958. Decided (2d) Pac. Gen., Word, Jr., L. Asst. Anderson, Atty. Robert Forrest H. County Atty., Missoula, appellants. Kurtz, Gen., M. Atty. J. Root, Missoula, & for re- Paddock, Jewell & Shallenberger spondent. ANGSTMAN:
MR. JUSTICE District entered into a con- School defendant Plaintiff