State ex rel. Phillips v. Fid. & Cas. Co.

• Decision Date: 23 May 1889
• Court: Iowa Supreme Court
• Parties: STATE EX REL. PHILLIPS, DISTRICT ATTORNEY, v. FIDELITY & CASUALTY CO.

77 Iowa 648

42 N.W. 509

STATE EX REL. PHILLIPS, DISTRICT ATTORNEY,

v.FIDELITY & CASUALTY CO.

Supreme Court of Iowa.

May 23, 1889.

Appeal from district court, Polk county; JOSIAH GIVEN, Judge.

The defendant company is a corporation organized and existing under the laws of the state of New York. It has received from the auditor of this state a certificate under the provision of the law as to insurance companies, and is doing business in this state in the following classes or lines of insurance: (1) Against injury, disablement, or death of persons, resulting from traveling, or general accidents by land or water; (2) the fidelity of persons holding places of public or private trust; (3) upon plate-glass, against breakage; (4) upon steam-boilers, against explosion, and against loss or damage to life or property resulting therefrom. By the law of the state of New York insurance is classed in departments, and the kinds above specified are in the second department, and the law of that state provides that no company shall undertake to do more than one of the kinds of insurance mentioned in the second department; and it further provides that no company organized under the laws of any other state shall undertake to do more than one of such kinds of insurance in the state of New York. The petition alleges that the defendant has continually, since the 1st day of February, 1888, offended, and still offends, against the law of this state by making more than one of the kinds of insurance above specified; and the petition asks that the defendant be ousted and excluded from doing any of such kinds of insurance. There was a demurrer to the petition, which was overruled, and a judgment entered that the defendant be excluded from attempting to carry on more than one of the kinds of insurance; from which judgment the defendant appeals.Mitchel & Dudley, for appellant.

Macey, Sweeney & Jones, for appellee.

GRANGER, J.

1. The first question presented by the demurrer goes to the jurisdiction of the court, on the ground that certiorari, and not quo warranto, is the plaintiff's remedy. The argument is upon the theory that the act of the auditor in granting the certificate is quasi judicial, and that this proceeding,in effect, is to review his action. Without reference to the point in argument as to the office of the common-law writ of quo warranto, we think the statute is conclusive of the question. The writ of certiorari is permitted whenever specially authorized by law, and especially when an inferior officer exercising judicial functions is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally when, in the judgment of the superior court, there is no other plain, speedy, and adequate remedy. Code, § 3216. It will be noticed that there is a plain limitation upon the use of this writ, and before granting it the court must inquire if there is any other plain, speedy, or adequate remedy, and, if so, the writ is not available. It may be said that the auditor is not alleged to have exceeded his jurisdiction, or that he has acted illegally; and he is not a party to this proceeding. The action seems to proceed upon the theory that, notwithstanding the certificate of the auditor, the corporation is acting in violation of law, in such manner as to forfeit its rights as a corporation, and that the legislature has in terms provided a remedy that seems to be plain, speedy, and adequate. Chapter 6, tit. 20, of the Code is designed especially to “test official and corporate rights,” the latter of which is the very gist of this proceeding. Section 3345 provides that “a civil action by ordinary proceeding may be brought in the name of the state as plaintiff in the following cases: * * * (3) Or against any person acting as a corporation within this state, without being authorized by law; (4) or against any corporation doing or omitting acts which amount to a forfeiture of their rights and privileges as a corporation, or exercising powers not conferred by law.” The allegations of the petition are clearly within the purview of the quoted provisions of the statute, by averring that the defendant, by the making of the several...