The State ex rel. Mackey v. Hyde

• Decision Date: 06 August 1926
• Docket Number: 26150
• Citation: 286 S.W. 363,315 Mo. 681
• Parties: The State ex rel. Frank L. Mackey v. Ben C. Hyde, Superintendent of Insurance
• Court: Missouri Supreme Court

286 S.W. 363

315 Mo. 681

The State ex rel. Frank L. Mackey v. Ben C. Hyde, Superintendent of Insurance

No. 26150

Supreme Court of Missouri

August 6, 1926

Peremptory writ denied.

Frank X. Hiemenz, James T. Blair and Edward W Foristel for relator.

(1) Even had the Legislature expressly attempted to impose the conditions which the Insurance Commissioner attempted to impose upon relator, the statutory attempt to effect such imposition of such conditions would have been unconstitutional and void because of their discriminatory nature. Hauser v. North British Ins. Co., 206 N.Y 455, 42 L. R. A. (N. S.) 1141. (2) The act in question does not expressly authorize the Superintendent of Insurance to impose the conditions he is now attempting to impose, but even if the Legislature had attempted expressly to authorize him to impose additional conditions and had then failed to provide a "definite rule or specified conditions to which all similarly situated might knowingly conform," such attempt would have been futile, because such unregulated discretion cannot be vested in officials by the Legislature. State ex rel. Markis v. Superior Ct., 193 P. 845, 12 A. L. R. 1428, and note 1436. (a) Courts sometimes differ as to whether particular language in a statute prescribed a sufficiently definite rule. There is little or no difference of opinion upon the proposition that the statute must prescribe an adequately definite rule or be held invalid. (b) The Legislature has no power to vest in any person or officer unregulated power, at discretion, to apply a law to whom he will or refuse to apply it to whom he will. Merchants Exchange v. Knott, 212 Mo. 636; State ex inf. v. Carlisle, 235 Mo. 259; Yick Wo v. Hopkins, 118 U.S. 368; Sutherland v. Miller, 91 S.E. 993; King v. State, 87 Tenn. 304; Hays v. Poplar Bluff, 263 Mo. 534; Welch v. Maryland Cas. Co., 47 Okla. 293, L. R. A. 1915 E, 708. This is as applicable to conditions additional to those a particular statute prescribes as to conditions when the statute prescribes none otherwise, the whole rule (and thereby the Constitution) would be easy of evasion. (3) The Legislature may "make a law to delegate the power to determine some facts or state of things upon which the law makes or intends to make its own action depend; but the Legislature cannot delegate the power to make laws. State v. Thompson, 160 Mo. 345; Boyd v. Bryant, 35 Ark. 69. (a) "The true distinction is between the delegation of power to make the law, which necessarily involves the discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and pursuant to the law," which the Legislature has made. "The first cannot be done. To the latter no valid objection can be made." Railroad v. Comrs., 1 Ohio St. 77; State ex rel. v. Bridge, 95 Wis. 390; Sheldon v. Hayne, 261 Ill. 225; Cooley in Const. Lim. (7 Ed.) p. 163; Dowling v. Ins. Co., 92 Wis. 69; Nalley v. Ins. Co., 250 Mo. 459; 1 Sutherland on Statutory Const. (1904), sec. 88, p. 148. (b) The statute prescribes no rules and delegates no authority to make rules. Construed as respondent construes it, he may make such rules as he will. He claims authority to prescribed regulations for limiting the class the act marks out. This is the necessary result of his contention. So construed, the section, as a law, is "intolerable in any country where freedom prevails as being the essence of slavery itself." The power to classify for legislative purposes is the essence of legislative power Sheldon v. Hayne, 261 Ill. 226. (4) The word "may" is construed to be mandatory in a case like this. State ex rel. Jones v. Loughlin, 73 Mo. 449; State ex rel. v. King, 136 Mo. 318; Steiner v. Franklin Co., 48 Mo. 178; State ex rel. Hawkins v. Harris, 304 Mo. 315. (5) Applying the canon that an act will be construed so as to be valid rather than invalid does not constitute a decision of a constitutional question. Relator does not attack Section 6317. Petring v. Current River Land Co., 111 Mo.App. 373.

North Todd Gentry, Attorney-General, and James A. Potter, Special Assistant Attorney-General, for respondent.

(1) Relator cannot question the constitutionality of Section 6317. For the purposes of this case the relator must accept the insurance broker's statute as it reads on its face. He is seeking the aid of a writ of mandamus to procure a broker's license under this statute, and must stand or fall by the plain letter of the statute, because in order to obtain mandamus he must have a clear legal right to the same. In other words, he must have a clear legal right under the statute as it reads. State v. Seebold, 192 Mo. 730; Cooley's Constitutional Limitations (7 Ed.) p. 232; Cunningham v. Railroad, 165 Mo. 270; State v Hathaway, 106 Mo. 236; Jones v. Black, 48 Ala. 540; Shehane v. Bailey, 110 Ala. 308. If the insurance broker's statute is unconstitutional as it reads, the relator has neither a legal right to a broker's license nor is the respondent under any legal duty to issue such license. An unconstitutional law is the same as no law. State ex rel. v. McIntosh, 205 Mo. 607; State ex rel. v. Cook, 41 Mo. 593; Hart v. Folsom, 70 N.H. 213. Under the plain wording of the statute, relator has no clear legal right to a broker's license, and since he is not in a position to attack the constitutionality of the act he has no case. United States ex rel. Siegel v. Board of Liquidation of New Orleans, 74 F. 489; State ex rel. Winie v. Stoddard, 25 Ney. 459; Kellogg v. Currens, 111 Wis. 431. (2) Relator's theory of this case seems to be that the use of the word "may" in the insurance broker's statute vests in the insurance commissioner an unbridled discretion which amounts to a delegation of legislative and judicial powers which are illegal. It is now generally held that discretionary powers may be lodged in administrative officers to determine whether the terms of a law have been complied with, "and that such terms, like other general terms, get precision from the sense and experience of men." Yee Bow v. Cleveland, 12 A. L. R. 1427; Mutual Film Corp. v. Industrial Comm., 236 U.S. 230, 59 L.Ed. 552; Hall v. Geiger-Jones Co., 242 U.S. 539, 61 L.Ed. 480; Gundling v. Chicago, 177 U.S. 183; Red Sea Oil Mfg. Co. v. Board of Agriculture, 222 U.S. 380; State ex rel. Lieberman v. VanDecarr, 199 U.S. 552. The statute under consideration must be taken as a whole and its intent, meaning and purpose must be gathered from the four corners of the statute, and it must be so construed, if possible, as to harmonize with all the other statutes relating to the subject of insurance. The Legislature never intended that anyone should have a broker's license except persons who either were, at the time of the application for same, bona-fide insurance brokers, or who intended to become such. If the Superintendent of Insurance must issue a broker's license to any person who applies for same and pays the statutory fee, then he can be compelled to grant an insurance broker's license to every large property owner in the city of St. Louis. A property owner armed with an insurance broker's license is entitled to a rebate upon his insurance in the form of a commission. This certainly was not the intent of the Legislature, because another section of our insurance law absolutely prohibits the paying of commissions to property owners under such circumstances as would enable them to secure insurance cheaper than the small property owners having property of the same class and rating. Adleman v. Board of Health, 84 Conn. 691; New York Mortgage Co. v. Secretary of State, 114 N.W. 82. (3) The grant of power to issue a license includes the power to refuse one, and mandamus will not lie until it is alleged and proved that the officer acted arbitrarily. 25 Cyc. 603; Downes v. McClellan, 210 P. 397; Noble v. English, 167 N.W. 629; People v. Grant, 126 N.Y. 473. (4) When a statute or ordinance simply says that an officer "may" issue a license or permit, mandamus will not lie unless there is a clear abuse of discretion. Doben v. Board of Health, 127 N. J. App. 38; McGinnis v. Atlantic City, 126 N. J. App. 663; State ex rel. Hawkins v. Harris, 263 S.W. 807. (5) Cases illustrating the discretionary power that may be lodged in an administrative officer without violating that provision of the Constitution forbidding the delegation of legislative powers are the following: State v. Public Service Comm., 162 Wash. 523; Commonwealth v. Sweeny, 61 Pa. Sup. 367; Merchants Exchange v. Knott, 212 Mo. 616; State v. Thompson, 160 Mo. 333; State ex rel. v. McIntosh, 205 Mo. 616; State v. Mathews, 44 Mo. 527. Section 6317 does not delegate to the insurance commissioner the power to determine whether the statute shall become effective; it gives the insurance commissioner no power to determine the existence or non-existence of the law itself. The law was complete and became effective when it left the hands of the Legislature. The insurance commissioner has only the right to determine the existence or non-existence of certain facts, or to impose certain regulations and conditions necessary to determine certain facts, which facts in turn determine whether one comes within the provisions of Section 6317. This power to determine facts or to impose reasonable regulations by which such facts may be determined, is in no sense legislative or judicial power. St. Louis v. Lamp Mfg. Co., 139 Mo. 560; State v. Thompson, 160 Mo. 343; Merchant's Exchange v. Knott, 212 Mo. 644; State v. Mathews, 44 Mo. 527. (6) One who seeks the aid of mandamus to compel the performance of a duty to him must show a clear legal right to have such duty performed. This clear legal right involves a personal interest in the relator and one peculiar to him, and it is never sufficient for...