State ex rel. Dakota Hail Association v. Carey
| Decision Date | 16 June 1891 |
| Citation | 49 N.W. 164,2 N.D. 36 |
| Court | North Dakota Supreme Court |
APPEAL from district court, Burleigh county; Hon. W. H. WINCHESTER Judge
Mandamus proceedings. Peremptory writ, as prayed for by relator issued. Defendant appeals. Reversed.
Reversed.
C. A M. Spencer, Att'y Gen., for appellant.
S. L. Glaspell, for respondent.
The affidavit upon which the alternative writ issued was made by the secretary of relator, and states, in substance, that the relator is a mutual hail insurance company, organized under the laws of the territory of Dakota, and has been engaged in business in the states of North and South Dakota, with its principal office at Plankinton, South Dakota; that the relator has at all times fully complied with the laws of North Dakota, and is therefore authorized to do business in said state; that the defendant, as insurance commissioner, issued to the relator a certificate of authority to do business in North Dakota in 1890, and at the close of that year, and on January 27, 1891, relator filed with the defendant its annual statement, as required by law, which defendant accepted without objection, and has at no time given relator notice of any defect therein; that relator has literally complied with all the requirements to authorize it to do business in this state during the year 1891, and on January 27, 1891, defendant issued to it a certificate of authority for said year. On the same day relator tendered to defendant the fees for filing such statement, and for furnishing copies for publication, and for issuing said certificate. Defendant requested affiant to hold said money until some time later, which relator did. That on February 6, 1891, relator sent said money to defendant, who on March 3, 1891, returned the same. On March 10, 1891, relator again tendered said fees, together with the legal fees for issuing certificates to five agents, all of which the defendant refused to accept; and relator deposited said fees in the name and for the use of said defendant in the James River National Bank, and notified defendant accordingly. That defendant has failed to publish such annual statement, or designate the newspapers in which the same may be published. That on February 19, 1891, the defendant, by letter, attempted to recall relator's certificate of authority, and again, on February 25th, defendant, by letter asked relator to surrender such certificate, and stated that said fees would be returned later. On March 10, 1891, relator presented to defendant a properly certified list of agents, and demanded that certificates of authority be issued to such agents, and at the same time tendered the legal fees therefor. On March 16, 1891, defendant, by letter to relator, refused to issue such certificates to agents, and declared relator's certificate of authority "null and void," and ordered relator to discontinue business in this state, and returned the fees to relator; and on the same day defendant issued and sent to relator a proclamation assuming to revoke the authority of relator to do business in this state. All the letters mentioned in said affidavit are attached as exhibits, and also the certified list of agents, with demand as stated, and the proclamation issued by defendant. The alternative writ commanded the commissioner to publish such annual statement for the year 1890, to designate the papers in which the same should be published, and issue certificates of authority to local agents, or to show cause, etc. On the return-day the defendant, by the attorney general, appeared before the district court, and moved to quash the alternative writ upon two grounds: First, that the said action is not brought in the name of and by the proper party, the real party in interest; second, that the affidavits and exhibits show upon their face that the plaintiff is not entitled to the relief demanded. The motion to quash was denied, and defendant excepted to the ruling. Defendant elected to stand upon the motion to quash, and refused to answer or plead further. Whereupon the trial court entered judgment, adjudging as follows: "That a peremptory writ of mandamus do now issue out of this court directed to the said defendant, A. L. Carey, commanding him that he do forthwith publish, or cause to be published, the annual statement for the year 1890 of the relator the Dakota Hail Association, and to select or designate the newspapers in which the same may be published; and that he issue certificate of authority to the agents of said Dakota Hail Association as requested; and that plaintiff do have and recover of defendant the costs of the proceeding." The errors assigned in this court are that the court erred in denying the motion to quash, and in entering the judgment. It is a stipulated fact that the state, as such, has no interest in the controversy. We shall therefore, without conceding that such a stipulation is binding upon the court, and without passing upon the question of whether the state, as such, has a direct interest in the questions at issue, proceed to consider the matter as a purely private controversy.
The attorney general contends that this proceeding is not a special proceeding, but is a civil action, and, consequently, that it should be brought in the name of the real party in interest, i. e., in the name of the Dakota Hail Association of Plankinton, S. D., and should not be brought in the name of the State of North Dakota ex rel., etc.; citing Comp. Laws 1887, §§ 4830, 4870, 5005, 5518; 14 Amer. & Eng. Enc. Law, p. 217, and cases cited. Section 4830 in terms refers only to "actions at law and suits in equity," as such actions and suits existed prior to the innovations made by the reformed procedure. No reference is made to a special proceeding. See Comp. Laws 1887, §§ 4810, 4812. Section 4870 declares that "every action must be prosecuted in the name of the real party in interest," etc. This obviously has reference exclusively to those remedies formerly had by an action at law or by suit in equity, and we think it would be a violation of the plain intent of the statutes to extend its meaning so as to include special proceedings which are not mentioned in § 4870, but on the contrary, are regulated by distinct and special proceedings of the statute. Comp. Laws 1887, §§ 5505, 5536. The attorney general also cites the following authorities: State v. Marston, 6 Kan. 524; Bobbett v. State, 10 Kan. 9; State v. Board, 11 Kan. 66; People v. Pacheco, 29 Cal. 210; Territory v. Cole, 3 Dakota 301, 19 N.W. 418. Doubtless these cases, especially that cited from California, with others from that state not cited, tend to support the position taken by the attorney general. With respect to the territorial case, it will be noticed that the case seems to turn upon the non-residence and non-official capacity of the relator, rather than upon the question how the procedure should be entitled. The use of the name of the territory is not criticized in the opinion. In the state of Kansas the statutes regulating the remedy by mandamus differ materially from those of this state. The Kansas enactments pointedly recognize the remedy as a civil action by repeatedly referring to the parties as "plaintiff" and "defendant." Gen. St. Kan. 1889, pars. 4809, 4811. The statutes of Iowa, in express terms, make the remedy an action, and authorize the action to be brought in the name of either the state or a private party, according to the nature of the case. McClain, Ann. St. §§ 3373, 3385. Authorities based on these statutes are not in point in this state, as we have no such statutes. It must be conceded, however, that there is authority of great weight sustaining the position of the attorney general, but we think the better authority and better reason is the other way. We have found no precedent in the reported cases decided by the late territorial supreme court for omitting the name of the sovereign in any mandamus case. We can see no good likely to result from changing the established practice in this respect, and, on the other hand, a change not based on a new and well-considered statute would, in our opinion, tend to much confusion in the practice, and thereby greatly impair the usefulness of the writ.
We think the statutes regulating special proceedings give countenance to the existing practice. Comp. Laws 1887 §§ 5518, 5527. We therefore hold that the name of the state was properly inserted in the title of this proceeding. High, Extr. Rem. § 430. We still add, as a guide for future cases, that the name of the state should be inserted in the writ in connection with the name of the relator in all cases whether the matter is one in which the state as such is strictly a party in interest or not, or whether the question is one of public concern or a purely private dispute. The statutes of the state have assimilated the mandamus proceeding to a civil action, but have not made it a civil action, as is done in the case of quo warranto. Comp. Laws 1887, §§ 5345, 5361. We think it will be proper to add, with a view to settling a very embarrassing and much controverted question of practice, that in cases where the state, as such, is directly interested as a party, the attorney general should apply for the writ, or in some manner signify his assent to the proceeding; but on the other hand, where the controversy does not concern the state, as such, but does concern a large class of citizens in common, as, for example, the citizens and tax-payers of a particular county, town, city or district, the required affidavit may properly be made...
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