State ex rel. Continental Insurance v. Doyle

Ryan, C. J. In granting a peremptory mandamus to the secretary of state to revoke the license of the relator in this case (State ex rel. Drake v. Doyle, ante, 175), we spoke with just severity of the utter mala fides of a foreign insurance company coming here under a voluntary and advantageous license of the state, upon condition not to harass citizens of the state dealing with it, by removing actions on its policies from the state court of the vicinage to distant and expensive federal courts. The papers submitted to us in support of the present application go far to satisfy us that the removal of the action by the present relator, for which we granted the writ to revoke its license, was without the knowledge or sanction of its principal officers in New York. The affidavit of Mr. Lamport, vice-president of the company, appears to be very frank and manly, and to exonerate the New York officers of the company from all personal responsibility for the removal, or for the scandalous breach of faith involved in it. We cannot but regard the petition of the relator, repudiating the removal, as a bona fide submission to the authority of the state, and to the condition imposed upon the relator’s license to do business in it. The supremacy of the state law over state officers, and over foreign corporations licensed under it, has been sufficiently vindicated, and foreign corporations sufficiently warned of the danger of playing fast and loose with their faith to the state. And we heard the present application with a strong desire of relieving the relator from further loss by the revocation of its license. We regret that we are able to see no way of doing so, consistent with our duty. I. This application was put upon the ground that the re — 231 — moval of tbe action from tbe state to tbe federal court, was caused by tbe attorney of tbf? insurance company, appointed under sec. 22 of cb. 56 of 1870, without tbe knowledge and against tbe wishes of all tbe chief officers of tbe company in New York; that bis action in tbe premises was outside of bis authority, and did not bind tbe corporation. To this position there are two sufficient answers: First. Tbe petition to remove tile cause was tbe petition of tbe corporation, running in its name,- and presented to tbe state court on its behalf, by tbe attorneys appearing for it of record. Tbe court in which it was presented could not disregard it for any latent want of authority of tbe officer verifying it. It was effectual to remove tbe cause, and tbe cause was in fact removed under it. Sec. 1, cb. 64 of 1872, makes it the imperative duty of tbe secretary of state to revoke tbe license of a foreign insurance company which shall make such application to remove an action. And tbe duty of tbe secretary to do so rests, not upon tbe authority or abuse of authority of tbe officer of tbe corporation causing tbe application to be made, but upon tbe actual application to remove tbe action. And this was not only wise, but necessary. Eor an agent or officer of tbe corporation, not expressly authorized to do so, might well, as this ease proves, make an effectual application to remove tbe cause, and remove it beyond recall, while tbe corporation might repudiate bis act and claim its insufficiency to justify tbe revocation of its license. Tbe actual removal is tbe evil at wlricb tbe statute aims. And.no foreign insurance company could be tolerated in suffering tbe removal of a cause defacto by its officer or agent, and in then claiming immunity de jwre from revocation of its license, for tbe officer’s or agent’s want of authority. Tbe authority which is adequate. for tbe removal of a cause, is adequate to work a revocation of tbe license. Tbe local agents and attorneys of foreign insurance companies licensed bere, bave tbe actual power to remove causes — 232 — from state to federal courts. And it is not enough for the corporation to be silent, not to instruct their local representatives to remove causes. They owe it as a duty to the state to instruct them not to remove causes. If they choose to run that risk, at the discretion of their local agents or attorneys, they ipso facto run corresponding risk of revocation of their licenses. It will not do that they stand indifferent between their duty to the state and the discretion of their local agents. If will not do, in complying with their obligations to the state, that their principal officers, a thousand miles away, with little knowledge or control of litigation here, act bona fide; they must see to it that their local representatives, with all practical control of litigation here, are prohibited from acting mala fide. Second. The statute requires that foreign insurance companies taking license here, “ shall first appoint an attorney in this state, on whom process of law can be served; ” “ and any process issued, etc., in this state, and served upon such attorney, etc., shall be deemed a sufficient service of process upon such company.” It was the attorney so appointed by the relator who made application for the corporation to remove and removed the action, for which the relator’s license was revoked. As between the insurance company and the state, it appears to us quite manifest that, as to all process of state courts served upon him, the attorney in fact so appointed stands here, for the purposes of his appointment, for the corporation, and possessed of all its power in the disposition of process against it, served upon him. He may have general or special instructions from the corporation, what course to take in each action or in all actions. The state is not privy to these, and has no concern with them. The state requires the appointment of an attorney in fact, in whom the corporation can confide, in place of the corporation itself, for the purposes of actions against it. It may be presumed that the attorney will — 233 — act for tbe interest and according to tbe instruction of tbe corporation. But as between bim and tbe state, as between bim and suitors bere against tbe corporation, he possesses tbe power of tbe corporation over tbe process served upon bim; tbe same power that be has over process against himself personally. He represents, pro hac vice, tbe corporation with all its power in tbe premises. And bis disposition of tbe process served upon bim, bis control of the action instituted by tbe process, is tbe disposition, tlie control, of tbe corporation itself. Tbe ideal being of tbe corporation can act only through its servants; and as between it and tbe state, its statutory attorney is its sole servant in tbe premises, vested with its whole power. As between tbe corporation and tbe state, be is, quoad hoc, tbe corporation itself. This is no new principle in this court. It is the same on which the judgments in Bass v. Railway Co., 36 Wis., 450, and Craker v. Railway Co., id., 657, went; and is indeed the same on which Railroad Co. v. Finney, 10 Wis., 388, and other cases in this court, and Weed v. Railway Co., 17 N. Y., 362, and other cases elsewhere, really rest. In Bass v. Railway Co., it is said of officers of railroad trains: “We feel warranted by principle and authority to bold that, in the enforcement of order on the train, and in the execution of reasonable regulations for the safety and comfort of the passengers, and for the security of the train, the authority of these officers, exercised upon the responsibility of the corporations, must be obeyed by passengers; and that forcible resistance cannot be tolerated. They act on the peril of the corporations, and their own. Indeed, as that fictitious entity, the corporation, can act only through natural persons, its officers and servants, and as it of necessity commits its trains absolutely to the charge of officers of its own appointment, and passengers of necessity commit to them their safety and comfort in transitu, under conditions of such peril and subordination, we are disposed to bold that the whole power and authority of the corporation, — 234 — jpro Jiao vice, is rested in these officers; and that, as to passengers on board, they are to be considered as the corporation itself; and that the consequent authority and responsibility are not generally to be straitened or impaired by any arrangement between the corporation and the officers; the corporation being responsible for the acts of the officers in the conduct and government of the train.” This is repeated and enforced in Craker v. Railway Co., where it is said that, in respect of local duties of a corporation, it is not represented by directors in a foreign board room, or by officers in distant offices, but by the very servant or agent appointed in respect of such duties, with power to fulfill them. And it is the settled law of this court, that where a corporation appoints an agent with power and control over a function or duty of the corporation, the agént is so far the representative of the corporation; his action is the action of the corporation, for which the corporation is responsible, however faithless to his duty the agent may be. Acting within the scope of his agency, he binds the corporation, though he acts in disobedience of orders or betrays the trust reposed in him by his superiors. In this case, the disposition by the agent of the process served upon him, was, as to the state, the disposition of the corporation; though, as between him and the corporation, he may have acted without the sanction and against the wishes of his superior officers. In either view, the relator cannot be held irresponsible for the removal of the cause. It must be held for the act of its subordinate agent, within the scope of his authority, even when unsanctioned and disapproved by its board of directors and other principal officers. II. It was urged that the relator was not a party to the proceeding in which the mandarrms was issued to revolee its license; and is therefore not bound by it. This is only a new way of putting the objection urged against the mandarrms itself, that the license could not be revoked without notice. "We held there that the license could — 235 — be revoked ex parte, by tbe very terms on wbieb it was granted; that tbe relator ran tbe risk of summary revocation ex parte, and could not object to tbe summary revocation, subject to wbieb it accepted tbe voluntary license of tbe state. Upon condition broken, it was tbe peremptory duty of tbe secretary of state to bave revoked tbe license, without notice. And tbe mandamus only enforced tbe secretary’s duty of summarily revoking tbe relator’s license, without notice to it. Having no right to notice of tbe revocation, it is difficult to see bow tbe relator was entitled to be a party to tbe mandamus enforcing tbe revocation, and indeed bow it could be a party. Tbe court, without notice, commanded tbe secretary merely to do what it was bis duty to bave done, without notice. "We lay no stress upon tbe fact that tbe relator’s own counsel was beard for tbe secretary in opposition to tbe mandamus. But it is obvious from what has been said, that, could it bave been, and bad it been, a party to tbe mandanvus proceeding, nothing which it now sets up would bave availed it against tbe peremptory writ. III. Under tbe circumstances disclosed by this application, we are very reluctant to bold tbe relator to tbe strict consequences of its own act. But, having on full consideration issued a mandamus to tbe secretary to perform bis statutory duty, it would be a strange anomaly to give way now to appeals to a supposed equitable discretion, and to send out another writ to that officer to undo tbe duty which be has already done by command of tbe court. That is quite clearly out of tbe question. And we therefore considered tbe effect of opening tbe judgment for tbe mandamus, still within our control; and of permitting a further return to tbe alternative writ, setting up tbe facts now presented by way of appeal to our discretion. But brief reflection disclosed tbe inutility of that course. It is true, that courts bave discretion in issuing writs of — 236 — mandamus merely in aid of private riglit. But when the writ is invoiced on behalf of the state, as a pure prerogative writ, in matters publiei juris, there is no discretion. The writ goes ex debito justitice, without discretion. Tapping, 287; 35 Wis., 594. And it would be worse than idle to open a judgment which we still approve, to consider matters which could not affect it. Submitting to the state law and to its interpretation by the state court, in default only by an act of its local agent, disavowed by its principal officers, the relator has a strong claim to the mercy of the state. But it is not for us, in such a case, to make justice give way to mercy. That discretion rests only in the legislature, to whose lenient consideration we commend the relator. By the Qowt. — The motion for an alternative writ is denied, with costs against the relator.