State ex rel. Pearl Assur. Co. v. Holmes

• Decision Date: 13 March 1942
• Docket Number: 8271.
• Citation: 124 P.2d 700,113 Mont. 144
• Parties: STATE ex rel. PEARL ASSUR. CO., Limited, v. HOLMES, State Auditor.
• Court: Montana Supreme Court

124 P.2d 700

113 Mont. 144

STATE ex rel. PEARL ASSUR. CO., Limited, v. HOLMES, State Auditor.

No. 8271.

Supreme Court of Montana

March 13, 1942

Rehearing Denied April 28, 1942.

Appeal from District Court, First District, Lewis and Clark County Geo. W. Padbury, Jr., Judge.

Prohibition proceedings by the State of Montana, on relation of Pearl Assurance Company, Limited, against John J. Holmes, as State Auditor and ex officio Commissioner of Insurance of the State of Montana. From a judgment sustaining defendant's demurrer to an amended petition and granting his motion to quash an alternative writ of prohibition theretofore issued relator appeals.

Affirmed.

See also, 124 P.2d 994.

Harlow Pease and John K. Claxton, both of Butte, and O'Connor & Farber, of New York City, for appellant.

John W. Bonner and Howard M. Gullickson, both of Helena, for respondent.

ERICKSON Justice.

This appeal is from the judgment of the district court of Lewis and Clark county sustaining respondent's demurrer to an amended petition for a writ of prohibition and granting his motion to quash an alternative writ of prohibition theretofore issued.

On June 24, 1941, respondent John J. Holmes, the commissioner of insurance of the state of Montana, issued an order directing the relator to show cause, on a date specified, why its Montana license should not be cancelled. The order alleged certain violations of the Montana statutes and set out certain practices which were alleged to be sufficient grounds for the revocation of relator's license as the basis for respondent's action. Relator made demand for a bill of particulars, which the commissioner refused to furnish. Relator then filed a petition for a writ of prohibition in the above named district court. The prayer of the petition was that respondent be prohibited from taking any further proceedings under the order to show cause. It set out objections to the jurisdiction of the commissioner; to the sufficiency of the order and to the failure to furnish a bill of particulars. Respondent appeared by demurrer and a motion to quash.

Relator bases its argument that prohibition is a proper remedy on two grounds: First, that under former decisions of this court the writ will issue even where there is a remedy by appeal when the court or administrative tribunal assuming to act is absolutely without jurisdiction to determine the matter ( State ex rel. Lane v. District Court, 51 Mont. 503, 154 P. 200, 202, L.R.A.1916E, 1079); and, second, that the remedy by appeal is not plain, speedy and adequate for the reason that no stay is provided in the provision for appeal.

The first inquiry, then, concerns whether or not the commissioner was acting within jurisdiction in issuing the order to show cause. The commissioner, under section 1, Article VII of our Constitution, and sections 166 and 167, Revised Codes of 1935, has general jurisdiction of the subject matter. Under certain circumstances enumerated in the statutes he has the power to revoke certificates of authority of insurance companies licensed in Montana. Relator's argument that the commissioner is without jurisdiction in this particular case is that the order to show cause does not allege certain jurisdictional facts, nor does it allege the circumstances which must appear under the statute before the commissioner may invoke his power to revoke relator's license.

Considering the latter question first, we must determine whether or not the order to show cause sufficiently alleges any matter which might be a ground for revocation, and, if it does, it is sufficient. The rule as announced by this court in State ex rel. Lane v. District Court, supra, is as follows: "Whenever it is made to appear ***, that under no conceivable circumstances can the district court render a valid judgment because of a lack of jurisdiction, the discretion should be exercised in favor of issuing the writ, to the end that litigants may be saved the needless trouble and expense of prosecuting their litigation to a fruitless judgment." See, also, State ex rel. King v. District Court, 107 Mont. 476, 86 P.2d 755. Therefore the trial court, in the exercise of its discretion, must quash the writ under this particular contention that the order to show cause fails to allege any grounds which would be legally sufficient to support an order, if any single violation of the statute alleged is a ground for revocation.

Among other things the commissioner alleged that relator had not paid certain license fees required under section 6112, Revised Codes, and there can be no doubt that a failure to pay the license fee would be ground for revocation. In argument this allegation was emphatically denied by counsel. But there is no question of fact to be determined upon this hearing. Counsel urges that we may take judicial notice of the records of the commissioner's office, which will show that a license fee was paid in the year in question. From the allegations of the order to show cause it is clear, however, that those records would be of no assistance in determining whether or not the license fee was paid on the particular premiums specified in the order to show cause.

It is not necessary to consider the sufficiency of the other allegations to state grounds for revocation, since under the rule in the Lane case the writ will not issue where the remedy by appeal is available, unless the commissioner is without jurisdiction under any conceivable circumstances to make a valid order at the conclusion of the hearing.

We find no merit in the first contention, that the order to show cause does not allege certain preliminary proceedings on the part of the commissioner which relator contends were...