Carlile v. Hurd

• Decision Date: 28 November 1892
• Citation: 3 Colo.App. 11,31 P. 952
• Parties: CARLILE, State Treasurer, v. HURD.
• Court: Colorado Court of Appeals

31 P. 952

3 Colo.App. 11

CARLILE, State Treasurer, v. HURD.

Court of Appeals of Colorado

November 28, 1892

Error to district court, Arapahoe county.

Petition by Nathan S. Hurd against James N. Carlile, state treasurer for a mandamus to compel him to pay warrants approved by the superintendent of insurance for expenses incurred in the service of the insurance department. From a judgment ordering the writ to issue, defendant brings error. Reversed.

Joseph H. Maupin, Atty. Gen., and H.B. Babb, for plaintiff in error.

M.B Carpenter, for defendant in error.

BISSELL J.

An act of the legislature approved February 13, 1883, (Gen.St. p 549,) established an insurance department. The state auditor was made ex officio superintendent of insurance, with power to appoint a deputy, whose powers and duties were defined, but with which we have no concern, except in so far as they are specified in that portion of the section which will be quoted. After providing in detail for the organization of the department, it conferred upon the superintendent certain powers, in the following language: "Sec. 10. The superintendent of insurance shall have power to examine and inquire into all violations of the insurance law, and may at any time examine the financial condition, affairs, and management of any insurance company incorporated by or doing business in the state, and inquire into and investigate the business of insurance transacted, and may require any company, its officers, agents, employes, or attorneys, or other persons, to produce, and may examine, all its assets, contracts, books, and papers; may compel the attendance before him, and may examine under oath, its directors, officers, agents, employes, solicitors, attorneys, or any other person, in reference to its condition, affairs, management, or business, or any matter relating thereto; may administer oaths or affirmations; and shall have power to summon and compel attendance of witnesses, and to require and compel the production of records, books, papers, contracts, or other documents by attachment, if necessary; and shall have the right to punish for contempt, by fine or imprisonment, or both, any person failing or refusing to obey such summons or order of said superintendent. ***" The remainder of the section gives that officer power to conduct the examination in person or by deputy, and provides for the imposition of sundry penalties upon insurance companies or agents who may refuse to furnish the information which the superintendent is authorized to demand, or to do what he may direct respecting those matters committed to his control. The act afterwards provides for the payment of sundry fees, which are constituted an insurance fund. The act directs the superintendent, every 30 days, to pay all moneys which he may receive into the treasury, and enacts that they "shall be used for the purpose of defraying the expenses of the insurance department." These expenses are to be paid solely out of the fund arising from the execution of the statute, and not otherwise, and at the end of the year whatever balance may remain unexpended is to be passed into the general fund, subject, of course, to existing legislative appropriations.

The department was organized and in operation on the 14th of January, 1891, when the deputy superintendent of insurance, Nathan S. Hurd, incurred sundry expenses. He contracted two bills,--one was for the expenses necessarily incident to his attendance upon an insurance convention held at the city of St. Louis in October, the amount expended being $125. In the same month, under the direction of the ex officio superintendent, Hurd visited Knoxville, Tenn., to examine into the financial condition of the Knoxville Fire Insurance Company, which was doing business within the limits of this state. The expenses amounted to about $195. In conformity with the provisions of the act, Hurd drew a warrant on the state treasury, had it approved by the auditor as superintendent, and presented it for payment, which was refused. Hurd thereupon filed his petition in the district court of Arapahoe county, praying for a writ of mandamus to issue against the treasurer, to compel him to pay these two warrants. Judgment passed in his favor, the writ was ordered to issue, and the attorney general, representing the state, brought the case here on error. Some of the questions presented would be difficult, if they were of the first impression. Most of them have been so completely settled by prior adjudications of our own supreme court, and the tribunals of sister states, that little is left to be done, other than to restate the law which has been already declared.

In limine, the petitioner, Hurd, insists that the treasurer is charged with no other duty than to recognize and pay a warrant drawn on the state treasury by the superintendent of insurance, if it be in the form designated by the act. It is assumed that since the fees for which the act provides are constituted a fund, known as the "insurance fund," which is to be devoted, under the plan of the statutes, to the payment of the expenses of the department, it is removed, both as to its amount and the settlement of the uses to which it may be properly applied from the consideration, protection, or oversight which may...