The Dickinson press., 1891-06-20
IN CAREY'S FAVOR
The Case of the PlankintOn Hail
Association vs.. the Commission
pr OF Insurance
Is Decided by the Supreme Court
Against the Hail AssO-
ciatiun.
Contracts of Survry0r-General Will
liams for Surveying the Pub
lie Domain.

In the case of the state of North Da-
kota, ex rel. The Dakota Hail associ;l-
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 MIR. 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 attorney-genera 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 lnsti-
tut,d before Judge Winchester, of the
Sixth district, by $. L. Gluspell 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 nointerest
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-
ance commissioner commanding him to
allow the company to transact business
in the state. The appeal was argued in
Bismarck at the Nav 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
commission. 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, us this
would be substituting the judgment OF
the court for that of the person in whom
the legislature has seen fit to repose it,
the order of the district court is re.
versel. The following syllabus is
filed:
Under the territorial statutes now III
force i'll this state the remedy by man.
damus is in some respects assimilated tc
civil action, but is not in strictness {;
civil action and is special proceeding
Compiled Laws, 1887. IS $685. 5536.
The party prosecuting the writ may
be known as the plaintiff and the ad
verse party as the defendant, but
whether the writ is sought to enforce {;
duty due the state as such, or sought
with respect toa right of common con.
cern to large number of persons, but
not a right where the state as such is
concerned, or sought to enforce Il 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 fol
by the attorney gener | or at least b.
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 /;
county, town, city or district-any citi
zen of the locality is benefcially inter.
ested and may apply for the writ within
the meaning of 5 5,51S, Compiled Laws
1887.
Where the writ is sought for the bene
fit of the relator alone, the fact of hi
special and peculiar right to the writ
must be made to appear by the affidavit
The insurance commissioner of tn
state, i'll granting OF revoklng a certif
cate authorizing insurance companies t,
transact business within the state, act
within the limits of IL discretion express
iy conferred upon him 10y statute. Sucl
official discretion, when once it has beel
exercised, cannot be controlled or re
versed by mandamus.