Am. Cas. Ins. Co. v. Fyler

• Decision Date: 25 May 1891
• Citation: 22 A. 494,60 Conn. 448
• Court: Connecticut Supreme Court
• Parties: AMERICAN CASUALTY INS. CO. v. FYLER, Insurance Commissioner.

22 A. 494

60 Conn. 448

AMERICAN CASUALTY INS. CO.

v. FYLER, Insurance Commissioner.

Supreme Court of Errors of Connecticut.

May 25, 1891.

Appeal from superior court, Litchfield county; Fern, Judge.

Petition for writ of mandamus by the American Casualty Insurance Company to O. R. Fyler, insurance commissioner of the state of Connecticut. Petition dismissed. Petitioner appeals. Affirmed.

W. F. Henny and A. L. Shipman,for appellant.

E. D. Robbins, for appellee.

ANDREWS, C. J. The plaintiff, a corporation organized under the laws of the state of Maryland, applied to the defendant, who is the insurance commissioner of this state, for permission to transact, in this state, insurance business, "against loss and damage caused by accident to any person or property arising from explosions of steam-boilers or other causes, employers' liability insurance, and the insurance of the fidelity of persons employed in positions of trust." The defendant heard the application, and, at the request of the plaintiff, gave a second hearing. Then, after consideration, he declined to grant to the plaintiff the permission it had asked for. The plaintiff thereupon made application to the superior court for a writ of peremptory mandamus,">commanding the defendant to admit in this state the kinds of business above mentioned. The defendant accepted service of the application so made to the superior court, and that application, by consent of all the parties, has been treated as the alternative writ. On the return-day the defendant came into court, and moved that the alternative writ be quashed. The court heard argument, and indicated that the motion ought to be granted, unless the writ should be amended, and gave the plaintiff time in which to amend. The plaintiff neglected to make any amendment, and the motion was granted. The plaintiff now appeals to this court. In any case of mandamus, as the alternative writ is the foundation of all the subsequent proceedings, it must show upon its face a clear right to the extraordinary relief demanded, and the material facts on which the plaintiff relies must be distinctly set forth so that they can be admitted or denied. If it does not do this, it will be abated or held insufficient on a motion to quash. All formal objection to the writ must be taken by a motion to quash. Fuller v. Academic School, 6 Conn. 532. And objections to the substance maybe so taken. Moses, Mand. 202-206; Shortt, Mand. 397; High, Extr. Rem. § 522; Bank v. Commissioners, 10 Wend. 26; State v. Lean, 9 Wis. 279.

The principle upon which persons holding public office may be compelled by a writ of mandamus to perform duties imposed upon them by law has been pretty clearly defined and strictly adhered to in numerous cases in this court, and in courts of other states. Freeman v. Selectmen of New Haven, 34 Conn. 406; Seymour v. Ely, 37 Conn. 103; Batters v. Dunning, 49 Conn. 479; Atwood v. Partree, 56 Conn. 80, 14 Atl. Rep. 85; U. S. v. Black, 128 U. S. 40, 9 Sup. Ct. Rep. 12; U. S. v. Windom, 137 U. S. 636,11 Sup. Ct. Rep. 197; Kendall v. U. S., 12 Pet. 524; Decatur v. Paulding, 14 Pet. 497; U. S. v. Guthrie, 17 How. 304; Howland v. Eldredge, 43 N. Y. 457; People v. Brenuan, 39 Barb. 651; Smith v. Mayor, etc., 1 Gray, 72.

The principle set forth in these authorities is that a writ of mandamus may issue where the duty which the court is asked to enforce is the performance of some precise, definite act, or is one of a class of acts purely ministerial, and in respect to which the officer has no discretion whatever, and the right of the party applying for it is clear, and he is without other adequate remedy; and that the writ will not issue in a case where the effect of it is to direct or control an executive officer in the discharge of an executive duty, involving the exercise of discretion or judgment. The rule is stated very clearly by Mr. Justice Bradley in U. S. v. Black, supra. He says: "The court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require the interpretation of the law, the court having no appellate power for that purpose; hut where they refuse to act in a case at all, or where, by a special statute or otherwise, a mere ministerial duty is imposed upon them,—that is, a service which they are bound to perform without further question,—then, if they refuse, a mandamus may be issued to compel them." The same rule is given in High, Extr. Rem. § 42, where that author adds: "Indeed, so jealous are the courts of encroaching in any manner upon the discretionary powers of public, officers that, if any reasonable doubts exist as to the question of discretion, or want of discretion, they will hesitate to interfere, preferring rather to extend the benefit of the doubt in favor of the officer." "A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done." Flournoy v. City of Jeffersonville, 17 Ind. 169. The subject of insurance engages nearly 140 sections of the General Statutes, and covers more than 30 pages of the statute book. All these sections, taken together, form a complete and symmetrical branch of the executive government of the state, which, in common speech, is called the "Insurance Department." The defendant is at the head of that department. His duties are generally that he "shall see that all the laws relating to insurance companies are faithfully executed." This alone vests him with a wide range of discretion and judgment. But, in addition to this general description of his duties, there are repeated sections which impose upon him, in terms, the exercise of discretion. Section 2822 vests him with authority at any time to "examine into the methods of business of any company, corporation, association, partnership, or combination of persons doing any kind or form of insurance business in this state." He may make orders binding upon such companies, and may apply for an injunction to control their business, or for the appointment of a receiver to wind it up. Sections 2829 to 2836 vest him with discretionary powers...