Courier Democrat. (Langdon, N.D.) 1891-1920, 1891-06-25
AN IMPORTANT DECISION.


tainly the hest in the township.
AN IMPORTANT DECISION.
The Dakota Hail Association, Vs. the State
of North Dakota, ex Rel.
tFrom Bismarck Tribuney
In the case of the State of North Da-
kota, eX rel. The Dakota Hail associa-
ton. of Plankinton, plaintiff and re-
spondent,vs. y. l.. Carey, commissioner
OF insurance for North Dakota, defend
ent and appellant, the Judgment of the
supreme court was filed yesterday and
appears to be a victory for the commits
sioner. The action was instituted by
the company to compel Mr.. 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 bust
ness had been granted the plaintiff.
Subsequently thereto the legislature
passed a statute which the attorney
general construed to exclude all foreign
mutual hail associations from carrying
on their business in North Dakota.
Acting under this advice the commiss-
Toner recalled the permit heretofore
granted. The company questioned his
right to do so and insisted on their stat
agents receiving the proper credentials.
The commissioner declining to grant
the same, mandamus action was in
stituted before Judge Winchester, of
the Sixth district, by S. L. Glaspell, of
jamestown, Oh 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 inter-
est i'll the controversy. The trial court
denied the motion and. the attorney
general electing to stand on the same,
a peremptory writ was issuedsto the in
surance commissioner commanding him
to allow the company to transact bust
ness in the state. The appeal was ar
gued in Bismarck at the May term and
the opinion of the court filed yesterday.
The position of the attorney general on
the motion is held to be untenable, but
OIL the right of the commissioner to re-
woke the certificate to the company the
appellate court says it is a discretion
airy act and says it cannot be controll-
ed OF reversed by mandamus, as this
would be substituting the judgment Of
the court for that of the person in who
the legislature has seen fit to repose it.
the order Of the district court is revers-
ed. The following syllabus if fled:
Under the territorial statutes now in
force in this state the remedy by man
damus is in some respects assimilated
to a civil action; but is not in strictness
a civil action and is special proceed
ing. Compiled Laws 1887, SS 5,505, $3.50.
The party prosecuting the writ may
be known as the plaintiff and the adj
verse party as the defendent, but wheth-
or the writ is sought to enforce duty
due the state as such, or sought with
respect to right of common concern
to large number Of persons, but not a
right where the state as such is con-
cernced, OF sought to enforce a right
peculiar to the relator the proceeding
should be had in the name of the state
ex rel. the
Where the remedy concerns the state
as such, the writ should be applied for
by the attorney general or at least by
his assent.
Where the subject matter does not
concern the state as such but is of COM
mon concern to large number of per-
sons-for example, to all citizens of a
coun ty, town city or district any citi-
zen of the locality is benefcially inter
ested and may apply for the writ with
in the meaning Of 5,518, Compiled
Laws, 1887.
Where the writ is sought for the be-
nefit 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 reyoking a certifi-
cate authorizing insurance companies
to transact business within the state,
acts within the limits Of a discretion
expressly conferred upon him by stat
ute. Such official discretion, when it
has once been exercised, cannot be
controlled Or reversed by mandamus.