The State ex rel. United States Fidelity & Guaranty Company v. Harty
| Decision Date | 25 January 1919 |
| Citation | 208 S.W. 835,276 Mo. 583 |
| Parties | THE STATE ex rel. UNITED STATES FIDELITY & GUARANTY COMPANY v. ALFRED L. HARTY, Superintendent of Insurance |
| Court | Missouri Supreme Court |
Permanent writ issued.
Joseph A. Wright and John M. Wood for relator.
(1) While prohibition is the proper remedy to restrain inferior judicial tribunals and to keep them within proper bounds, it may also be invoked against (a) inferior ministerial tribunals, sometimes called quasi-judicial tribunals possessing incidentally judicial power and (b) purely administrative bodies in extreme cases where no other remedies are reasonably available, preventing them from usurping judicial functions. High on Extraordinary Legal Remedies (3 Ed.), par. 764a; 2 Spelling on Injunction and Extraordinary Remedies (2 Ed.), par. 1744; 32 Cyc. 598; State ex rel. Ellis v. Elkins, 130 Mo. 90; State ex rel. Mosconi v. Maroney, 191 Mo. 531; State ex rel. Railroad Co. v. Johnston and Roach, 234 Mo. 338; State ex rel. United Railways Co. of St. Louis v Wiethaupt, 238 Mo. 155; State ex rel. Verble v Haupt, 181 Mo.App. 18; Connecticut River Railroad Co. v. Commissioners, 127 Mass. 50; State ex rel. Nolan v. Clendening, 93 Ohio St. 264; People v. Sherman, 72 N.Y.S. 718, 171 N.Y. 684; People ex rel. Pintler v. Transue, 132 N.Y. 497; People ex rel. Jordon v. Witherspoon, 157 N.Y.S. 923; Harriman v. County Commissioners, 53 Me. 83; State ex rel. Marshall v. District Court, 50 Mont. 289; Baker v. Gooding County, 25 Idaho 506; Bradley v. Board of Canvassers, 154 Mich. 274; State ex rel. Schloss v. Stevens, 34 Nev. 146; Prairie Oil, etc., Co. v. Cruce, 45 Okla. 774; State ex rel. Hahn v. Young, 29 Minn. 474; State ex rel. Pryor v. Axness, 31 S.D. 125; Brown v. Board of Election Canvassers, 45 W.Va. 826. (2) Sec. 7078, R. S. 1909, clothes the respondent with quasi-judicial powers in cases where an insurance or bonding company is insolvent or financially embarrassed; his duties, however, are wholly statutory, and unless the facts bring the particular company under investigation within the terms of the statute respondent has no authority to revoke the license. Bishop on Non-Contract Law, par. 785, 790; Fidelity Trust Co. v. Revelle, 266 Mo. 202; State ex rel. Commonwealth Trust Company v. Chorn, 269 Mo. 172; State ex rel. Inter-Insurance Auxiliary v. Revelle, 257 Mo. 529; Lamar Township v. City of Lamar, 261 Mo. 171; Bankers, etc., Co. v. Barnes, 81 Kan. 422; American Surety Co. v. Fishback, 95 Wash. 124; Wallace & Co. v. Ferguson, 70 Ore. 306; Welch v. Maryland Casualty Co., L. R. A. 1915E, 708, 147 P. 1046; Mutual Life Insurance Co. v. Prewitt, 127 Ky. 399; Volunteer State Life Ins. Co. v. Dunbar, 133 Tenn. 331; State ex rel. Martin v. Howard, 96 Neb. 278; Senn v. Metropolitan Life Ins. Co., 154 N.Y.S. 472. (3) The respondent is an administrative officer vested with quasi-judicial power, which power he now seeks to expand into purely judicial power, and thereby not only to exercise functions which belong solely to the courts, but if permitted to proceed in the premises, it would actually oust the courts of their jurisdiction. Whether he entered an order requiring relator to pay under penalty of having its license revoked, or enter an order revoking the license, the effect would be the same. Lusk v. Atkinson, 268 Mo. 109; State ex rel. York v. Locker, 266 Mo. 384; State ex rel. v. Public Service Commission, 259 Mo. 704; Ocampo v. United States, 234 U.S. 91; People ex rel. Schau v. McWilliams, 185 N.Y. 92; People ex rel. Stewart v. Railroad Commrs., 160 N.Y. 202; Metz v. Maddox, 105 N.Y.S. 702; Tyson v. Washington County, 78 Neb. 211, 12 L. R. A. (N. S.) 350; Gulnac v. Board of Freeholders, 74 N. J. L. 543; Burnam v. Terrell, 97 Tex. 309; State ex rel. Board, etc., v. Briede, 117 La. 183; People ex rel. School District v. Van Horn, 20 Col. App. 215.
Frank W. McAllister, Attorney-General, John T. Gose, Assistant Attorney-General, and Charles G. Revelle, of counsel, for respondent.
(1) It is elementary that under our laws the writ of prohibition is granted only to prevent the usurpation of judicial power. Kalbfell v. Wood, 193 Mo. 687. The allegation of relator's petition herein, charging the usurpation of judicial power in a proceeding wherein respondent threatened to revoke relator's license unless it paid to the International Life Insurance Company a sum of money found to be due, having been denied by respondent's return, and the truth of that return admitted by relator's demurrer, the question of the usurpation of judicial power in that respect is removed from this case. (2) The return of respondent shows that he is exercising the power conferred upon him by statute with respect to the subject-matter over which he has exclusive control, and that such power is in no sense judicial, but ministerial. The proceeding by respondent to inquire into whether or not relator's further operations in the State are hazardous to the public, is a proceeding by way of investigation, and in no sense a judicial trial. State ex rel. v. Goodier, 195 Mo. 559; Higgins v. Talty, 157 Mo. 291. Respondent was not acting judicially, but under the power conferred upon him by statute with respect to a subject-matter over which he has exclusive control; therefore, the court's writ of prohibition will not lie. Higgins v. Talty, 157 Mo. 291; State ex rel. v. Goodier, 195 Mo. 562; Kalbfell v. Wood, 193 Mo. 675; State v. Hathaway, 115 Mo. 48; Casey v. Thompson, 42 Mo. 133; State ex rel. West v. County Courts, 41 Mo. 44. "An act is none the less ministerial because the person performing it may have to satisfy himself that the state of facts exists under which it is his right and duty to perform the act." State v. Hathaway 115 Mo. 49. The duties and acts which respondent proposes to perform, set forth in the return and admitted by the demurrer, being purely administrative or ministerial, and being clearly within the scope of the exercise of a reasonable discretion and expressly authorized by law, the writ of prohibition will not lie. State ex rel. v. Gregory, 83 Mo. 123; State ex rel. v. Goodier, 195 Mo. 551; State v. Hathaway, 115 Mo. 36; Higgins v. Talty, 157 Mo. 230. The acts which respondent proposes to perform are within the powers conferred upon him by statute, and relate to the subject-matter over which he has exclusive control. Secs. 6878, 6889, 7013, 7014, 7015, 7016, 7051, 7066, 7078, and 7079, R. S. 1909.
OPINION
In Banc
Prohibition.
Prohibition to prevent respondent, the Superintendent of the Insurance Department, from revoking the license of relator, the Fidelity & Guaranty Company, to do business in this State, unless it complies with an order made by respondent requiring it to pay certain disputed amounts alleged in said order to be due by it to the International Insurance Company.
We are not concerned with whatever merit may inhere in the claims of the International Insurance Company against relator, further than the facts in regard to same, as disclosed by the pleadings, may prove illustrative of the power of the respondent to enter and enforce the order herein complained of. [State ex rel. Am. B. Ins. Co. v. McQuillin, 260 Mo. 164, 168 S.W. 924; Willow Spgs., etc. Co. v. Mt. Grove, etc. Co., 197 S.W. 916.] This order was based upon a complaint filed by the International Insurance Company with the respondent, as Superintendent of Insurance, to compel the relator to pay what are alleged to be just and past due claims arising out of a contract between the Insurance Company and relator, aggregating the sum of $ 25,000, which the latter upon demand had refused to pay. The pertinent portions of this complaint are as follows:
After formal allegations as to the corporate capacity of complainant and its authority to do business in this State as an insurance company, as well as that of the relator as a fidelity and casualty company, it is alleged that complainant deposited in a certain bank cash aggregating $ 25,000 for the times therein stated; that a contract for the payment when due of said sums, aggregating said amount, was made between the International Insurance Company and the bank, and that obligated itself, as by law it was authorized to do, as a fidelity and guaranty company, to secure the payment of same; that after said deposits were made and before any part of same was withdrawn, and while said contract was in full force and effect, said bank wherein said deposits had been made became insolvent and was placed in charge of the State Banking Department for liquidation; that default has been made in the payment of the sums there deposited, the payment of which was guaranteed by relator; that notice of such default has been given to relator, and that complainant has in all other respects complied with the terms of the contract under which said deposits were made and upon which relator became a guarantor; that it became the duty of relator upon such default to pay to complainant the amounts of said deposits; that demand therefore has been made upon relator, which has wrongfully refused to comply therewith or to perform any part of its obligations under said contract. The jurisdiction of the respondent is sought to be invoked by the International Insurance Company in this behalf in the following language: "Complainant further states and offers to show that the course of said United States Fidelity & Guaranty Company in relation to the above deposits and the above contracts and obligations is of such a character, and its repudiation of its aforesaid numerous obligations so flagrant, wrongful and unwarranted, as to make further operations on its...
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