The Homesteaders v. McCombs

• Decision Date: 13 July 1909
• Citation: 103 P. 691,24 Okla. 201,1909 OK 202
• Parties: THE HOMESTEADERS v. McCOMBS, Ins. Com'r.
• Court: Oklahoma Supreme Court

103 P. 691

24 Okla. 201, 1909 OK 202

THE HOMESTEADERS v. McCOMBS, Ins. Com'r.

Supreme Court of Oklahoma

July 13, 1909

Syllabus by the Court.

An action was originally instituted in this court by H., an insurance company, against M., the state insurance commissioner, seeking a peremptory writ of mandamus against said commissioner for the issuance of a permit to said insurance company to do business in the state of Oklahoma. Held, that this court has not original jurisdiction of such action.

Original proceeding by an agreed statement of facts under Wilson's Rev. & Ann. St. 1903, § 4717, by The Homesteaders for a writ of mandamus against T. J. McCombs, Insurance Commissioner. Dismissed.

It is stipulated in this court: That said action is begun herein for the reason that one of the parties is a state officer and the insurance commissioner in charge of the insurance commission or state department, and that the controversy involved is one of public interest and concerns all of the counties of the state. That The Homesteaders, the plaintiff is a fraternal beneficiary association incorporated under the laws of the state of Iowa, having filed articles of association and incorporation in said state; there being issued to it a charter or franchise. That it began doing business in that part of the state of Oklahoma known as the "Indian Territory" in September, 1906, and has continued doing business therein up to the present time organizing homesteads (lodges) and taking in members, and has a number of homesteads (lodges) in the state of Oklahoma, and is collecting assessments from its members. That no complaint is made against it on behalf of said insurance commissioner as to any failure to pay losses, as provided in the terms of the certificates issued by it. That said plaintiff did not previous to the time it commenced business in said Indian Territory, nor has it at any time, filed its certificate with the clerk of the United States Court of Appeals in the Indian Territory, and did not designate an agent as provided by the act of Congress approved February 18, 1901 (31 Stat. 795, c. 379, § 4). That the plaintiff, within the time required by law after the Indian Territory was admitted as a part of the state of Oklahoma, filed its report with the defendant, the insurance commissioner of said state, and tendered the fees provided for in article 4, c, 43, Wilson's Rev. & Ann. St. 1903. That it is ready, willing, and requests permission to designate an agent for service, and asks for a license or permit to do business according to its articles of incorporation. That the rates of assessment provided by plaintiff are below those provided in the fraternity mortality table. That said defendant has refused to issue a license to the plaintiff for the reason that its rates of assessment are below those provided by law, and is not within the exceptions stated in the statutes or those corporations which were legally doing business in the Indian Territory prior to the passage of the act. It further appears by affidavit that this controversy is real, and the proceedings in good faith to determine the rights of the parties.

N. B. Maxey and Frank H. Dewey, for plaintiff.

The Attorney General, for defendant.

WILLIAMS J. (after stating the facts as above).

This proceeding was begun under section 4717 (art. 21, § 519), Wilson's Rev. & Ann. St. 1903, which provides that: "Parties to a question, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court, which would have jurisdiction if an action had been brought. But it must appear, by affidavit, that the controversy is real, and the proceedings in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, and render judgment as if an action were pending."

Mandamus being a civil action (State ex rel. Pinney v. Williams, 69 Ala. 315; Ex parte City Council of Montgomery, 64 Ala. 463), if the Supreme Court would have original jurisdiction had this action been instituted by mandamus, it follows that it would have jurisdiction on an agreed case involving the same proposition (State v. Allen, 5 Kan. [New Ed. p. 128] 219; State v. Huston [Okl.] 97 P. 989); but the question further arises as to whether or not this court would have jurisdiction if this action was brought originally in mandamus. Section 2, article 7 (Bunn's Ed. § 170; Snyder's Ed. p. 210), of the Constitution, provides: "The appellate jurisdiction of the Supreme Court shall be coextensive with the state, and shall extend to all civil cases at law and in equity, and to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases shall be established by law. The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all commissions and boards created by law. The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs as may be provided by law, and to hear and determine the same; and the Supreme Court may exercise such other and further jurisdiction as may be conferred upon it by law. Each of the justices shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of any person held in actual custody, and make such writs returnable before himself, or before the Supreme Court, or before any district court, or judge thereof, in the state." "There is hereby established an insurance department, which shall be charged with the execution of all laws now in force, or which shall hereafter be passed, in relation to insurance and insurance companies doing business in the state." Const. § 22, art. 6 (Bunn's Ed. § 155). "There shall be elected by the qualified electors of the state, at the first general election, a chief officer of said department, who shall be styled the 'insurance commissioner,' whose term of office shall be four years. ***" Const. § 23, art. 6 (Bunn's Ed. § 156). "The insurance commissioner shall give bond, perform such duties, and possess such further qualifications as may be prescribed by law." Const. § 24, art. 6 (Bunn's Ed. § 157). The executive department of the government cannot exercise powers belonging to the judicial, except as they are an incident to the administration of the prescribed duties of such department. In re County Com'rs of Seventh Judicial District (Okl.) 98 P. 557.

The original jurisdiction of this court extends to a general superintending control over all inferior courts and all commissions and boards created by law. In furtherance of that jurisdiction, it has power to issue writs of mandamus, quo warranto, certiorari, prohibition, and such other remedial writs as may be provided by law. In construing section 3, art. 7, of the Constitution of Wisconsin of 1848, which provides: "The Supreme Court shall have a general superintending control over all inferior courts, and shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same"--the Supreme Court of that state, speaking through the late Chief Justice Ryan, in the case of Attorney General v. Chicago & N.W. Ry. Co., 35 Wis. 521, said: "The same writs are granted to those courts [circuit] as to this. It is impossible for a lawyer to suppose that they are granted in the same sense and with the same measure of jurisdiction, to this court as to those courts. Such a proposition would shock the legal sense of any professional man. And the distinction is to be looked for, and is readily found, in the general constitution and functions of those courts and of this. The writs are given to the circuit courts as an appurtenance to their original jurisdiction; to this court for jurisdiction. Those courts take the writs with unlimited original jurisdiction of them, because they have otherwise general original jurisdiction. Other original jurisdiction is prohibition to this court, and the jurisdiction given by the writs is essentially a limited one. Those courts take the prerogative writs as a part of their general jurisdiction, with power to put them to all proper uses. This court takes the prerogative writs for prerogative jurisdiction, with power to put them only to prerogative uses proper."

Section 10, art. 7 (Bunn's Ed. § 180; Snyder's Ed. p. 218), of the Constitution of this state, confers original jurisdiction upon the district courts in all cases, civil and criminal, except where exclusive jurisdiction is by the Constitution or by law conferred on some other court, and also authority upon such courts, or any judges thereof, to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, etc. It will be noted that section 2, art. 7 (Bunn's Ed. § 170; Snyder's Ed. p. 210), confers jurisdiction only upon the Supreme Court to issue writs of mandamus, quo warranto, certiorari, prohibition, etc., whilst section 10 of said article confers such authority not only upon the district courts, but also upon the judges thereof. The framers of the Constitution probably had in mind that "the great principle of the English judicial system was that of trial in local courts properly constituted--trial per pais, in the presence of the county as opposed to a distant and unknown tribunal" (Taswell-Langmead [6th Ed.] p. 28), in making provision for the issuance of such writs. As to the district courts, they may be issued either in open court or in chambers; in the Supreme Court, except as to writs of habeas corpus, only in open court.

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