Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1891-06-19
in CAREY'S FAVOR
sThe Case of the Plankinton Hull
Association vs.. the Commission
er OF Insurance
lis Decided by the Supreme Court
Against the Hail Asso-
citation.
CONTRACTS of SurveyOr-General Will
liams for Surveying the Pub
lie Domain.

In the case of the state of North Da-
kota, OK rel. The Dakota Hail associa-
ton, of Plankinton, plaintiff and respond
ent, VS.. A. L. Carey, commissioner of in
surance for North Dakota, defendant
and appellant, the judgment of the
supreme court was filed Tuesday and
appears to be a victory for the commits
sioner. The action was instituted by the
company to compel, MI. Carey to issue
them certificates of authority for their
agents to do business in the state. The
record discloses that in January the usual
permission to transact business had
been granted the plaintiff. Subsequent
thereto the legislature passed a statute
which the encouragement construed to
exclude all foreign mutual hail associa-
tions from carrying on their business in
North Dakota. Acting under this advice
the commissioner recalled the permit
heretofore granted. The company ques-
toned his right to do so and insisted on
their state agents receiving the proper
credentials.
The commissioner declining to grant
the same, a mandamus action was insti-
tuted before Judge Winchester, of the
Sixth district, by s. L. Glaspell of
jamestown, on behalf of the company.
Attorney General Spencer appeared be-
fore the court and moved to dismiss the
action on the ground that it was impro-
perly brought, being on the relation of
the state, which, as such, had no interest
in the controversy. The trial court de-
MED the motion and, the attorney gen
.eral electing to stand on the same, a per-
emptory writ was issued to the insur-
n commissioner commanding him to
allow the company to transact business
in the state. The appeal was argued in
Bismarck at the May term and the
opinion of the court, by Judge Wallin,
filed yesterday. The position of the at
torney general on the motion is held to
be ~untenable, but on the right of the
commissioner to revoke the certificate to
the company the appellate court says it
is a discretionary act and cannot be con-
trolled or reversed by mandamus, as this
would be substituting the Judgment of
the court for that of the person in whom
the legislature has seen tit to repose it,
the order of the district court is re-
versed. The following syllabus is
filed:
Under the territorial statutes now in
force in this state the remedy by man.
damus is in some respects aseimilated to
a civil action, but is not in strictness a
civil action and is a special proceeding.
Compiled Laws, 1887, S. 5,505, 5536.
The party prosecuting the writ may
be known as the plaintiff and the ad-
whether the writ is sought to enforce a
duty due the state as such, or sought
with respect to a right of common con-
-cern to a large number of persons, but
not a right where the state as such is
concerned, or sought to enforce a right
peculiar to the relator the proceeding
SHOULD be had in the name of the state
9 rel. the --
Where the remedy concerns the state
as such, the writ should be applied for
by the attorney general or at least by
ibis assent.
Where the subject matter does not
concern the state as such, but is of COM
mon concern to a large number of per-
sons-for example, to all citizens of a
county, town. city or distriot-any citi-
szen Of the locality is benefcially inter-
ested and may apply for the writ within
the meaning of S 5,518, Compiled Laws,
1887.
Where the writ is sought for the bene-
ft OF the relator alone, the fact of his
special and peculiar right to the writ
must be made to appear by the affidavit.
The insurance commissioner of this
state, in granting or revok1ng q certif-
cate authorizing insurance companies to
transact business within the state, acts
within the limits Of a discretion express
~ conferred upon him by statute. Such
official discretion, when once it has been
exercised, cannot be controlled or re-
versed by mandamus.