Moore v. Fidelity Deposit Co

• Decision Date: 01 November 1926
• Docket Number: No. 185,185
• Citation: Moore v. Fidelity Deposit Co, 272 U.S. 317, 47 S.Ct. 105, 71 L.Ed. 273 (1926)
• Parties: MOORE, Insurance Commissioner, v. FIDELITY & DEPOSIT CO. et al
• Court: U.S. Supreme Court

272 U.S. 317

47 S.Ct. 105

71 L.Ed. 273

MOORE, Insurance Commissioner,

v FIDELITY & DEPOSIT CO. et al.

No. 185.

Argued Oct. 12, 1926.

Decided Nov. 1, 1926.

Miss Grace E. Smith, of Salem, Or., for appellant.

Mr. John S. Coke, of Portland, Or., for appellees.

Mr. Justice BRANDEISdelivered the opinion of the Court.

Three companies licensed to do business in Oregon brought this suit against its insurance commissioner in the federal court for that state.The bill alleges that a former commissioner had authorized these companies to issue indemnity bonds, commonly called 'confiscation coverage,' by which those who sell automobiles on conditional sale are insured against loss arising from their confiscation for violation of law; that the defendant has entered an order canceling this authorization, on the ground that insurance of this nature is void as against public policy, because it serves to encourage the transportation of intoxicating liquors in violation of law; and that he has threatened to annul the plaintiffs' licenses unless they refrain entirely from writing such indemnity bonds.The bill charges that the defendant's action is in excess of the powers conferred upon him by the statutes of the state, and that his wrongful acts will, unless restrained, deprive plaintiffs of their property without due process of law in violation of the Fourteenth Amendment.The bill prays for both a preliminary and a permanent injunction.

The defendant moved to dismiss the bill, on the ground that it did not state facts sufficient to constitute a cause of action.The motion was overruled.An answer was filed.Parts of it were stricken out on plaintiff's motion.What remained admitted substantially all the allegations of the bill.The case was then heard further by a single judge, who on May 18, 1925, entered a final decree for an injunction.The constitutional question presented by the bill was not passed upon.The decision was rested solely upon the ground that the order complained of was in excess of the powers conferred by the statutes upon the insurance commissioner.3 F.(2d) 652.An appeal to this court was allowed by the District Judge.A motion having been made to advance the case for argument, this court, of its own motion, entered a rule that the appellant show cause why the appeal should not be dismissed for lack of jurisdiction in this court.Upon return to the rule, the case was set for argument.

The bill invoked the jurisdiction of the federal court on the ground of diversity of citizenship, as well as on the ground that plaintiffs' constitutional rights were threatened.Although the constitutional question raised was not passed upon by the District Court, the allegations of the bill would have supplied the basis for a direct appeal under section 238 of the Judicial Code, before that section was amended by ActFeb. 13, 1925, c. 229, 43 Stat. 936, 938 (Comp. St. § 1215).CompareWinchester v. Winchester Waterworks, 251 U. S. 192, 193, 43 S. Ct. 123, 64 L. Ed. 221.But section 238 was so far changed by that act that now there is no right to a direct appeal on constitutional grounds alone; the right exists now only in cases falling within the provisions enumerated in that section as amended.Otherwise the case must go in the first instance to the Circuit Court of Appeals, and may come here only for review of that court's action.SeeApplication of Burder, 271 U. S. 461, 46 S. Ct. 557, 70 L. Ed. 1036.

The act of 1925 applies, as the decree of which review is sought was entered after May 13, 1925.Among the provisions enumerated in section 238as amended is section 266 of the Judicial Code(Comp. St. § 1243).It is contended that this case falls within the latter section.It was...