Page:North Dakota Reports (vol. 2).pdf/71

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.
N. DAK. EX. REL. DAKOTA HAIL ASS'N v. CAREY.
45

such company if, after an examination conducted as he sees fit, or without such examination, the commissioner "has reason to believe that such annual statement * * * is false." Section 28, Id. The same absolute right to revoke a certificate of authority is given the commissioner when the examination has been made by a representative of the commissioner, if from the report made it shall appear to the commissioner "that the affairs of any company not incorporated by the laws of this territory are in unsound condition." § 33, Id. Whether such unrestricted power and discretion to either grant or withhold a permit to do business within the state, and to revoke or not revoke such permit when granted, is or is not wisely vested in the insurance commissioner, are questions which address themselves to the legislature. The courts can not consider the expediency of any law which the legislature has power to enact. The power to prescribe terms on which a foreign insurance company can do business in a state is plenary, State v. Doyle, 40 Wis., 176, 220. It is elementary that the writ of mandamus will not issue to control the exercise of judgment and discretion which the law invests in an officer. To do so would simply result in a usurpation by the courts of the very power and discretion which the law confers upon others. High, Extr. Rem. §§ 44, 46. The court has not been aided by counsel in this branch of the case by the citation of authority, but we have found a recent case from Kansas which is a mandamus case, and practically on all fours with the case under discussion, and in our view is exactly in point. Insurance Co. v. Wilder, 20 Pac. Rep. 265. The whole case 1s instructive, but we need quote only the syllabus: "The determination of the superintendent of insurance granting, refusing or revoking licenses authorizing insurance companies to transact business within the state involves the exercise of official judgment and discretion on its part which can not be controlled or directed by mandamus." It follows that the trial court erred in denying the defendant's motion to quash the alternative writ upon the merits, and in entering judgment in favor of the relator. The judgment should be reversed and it will be so ordered. All concur.