State ex rel. Court of Honor of Illinois v. Giljohann

Gassoday, O. J. Counsel for the relator contends 'that the defendant could not appeal from the order and judgment quashing both returns and awarding a peremptory writ of mandamus. One ground of such contention is that it is a judgment, and not an order. This court has treated the awarding of such writ as a judgment, and also referred to it as an order or judgment. State ex rel. Voight v. Hoeflinger, 31 Wis. 251, 260, 264; Rork v. Smith, 55 Wis. 67; State ex rel. Taylor v. Delafield, 64 Wis. 218; State ex rel. Star Prairie v. St. Croix Co. 83 Wis. 340, 343, 344, 348. If allowed to stand, it certainly determines the rights of the parties, and is, in effect, a judgment. The supreme court of the United States has held that “ an order awarding a peremptory writ of mandamus is a final judgment in a civil action, within the meaning of that term as used in the statute regulating writs of error to the United States supreme •court.” Davies v. Corbin, 112 U. S. 36. This being so, counsel contends that such judgment was not rendered in “an action, either civil or criminal,” and hence that it cannot be reviewed on appeal, but only upon writ of error. It is conceded that if it is a judgment in a civil action it may be reviewed on this appeal. Nearly twenty years ago this court, after hearing able and learned counsel, and after •careful deliberation, held that “a proceeding by mandamus is essentially a suit, and when issue is joined by the return it becomes a civil action,, within the meaning of the statutes, and as to the form and sufficiency of the several pleadings [384] must be governed by the same rules which prevail iu other civil actions.” State ex rel. G. B. & M. R. Co. v. Jennings, 56 Wis. 113. The ruling in that case has been steadily adhered to since. State ex rel. Taylor v. Delafield, 64 Wis. 218, 220; State ex rel. Drury v. Lincoln, 67 Wis. 274, 276; State ex rel. Buchanan v. Kellogg, 95 Wis. 678; State ex rel. Rice v. Chittenden, 107 Wis. 355. See, also, Davies v. Corbin, supra. The result is that the appeal did bring up the judgment for review. One portion of that judgment quashed the return and the supplemental return. The statute provides that “ whenever a return shall be made to any such writ, the person prosecuting the same may demur or answer all or any of the material facts contained in the same return.” Sec. 3451, Stats. 1898. State ex rel. G. B. & M. R. Co. v. Jennings, 56 Wis. 117, 118. The relator did not demur to nor answer the return in this case. A motion to quash may properly be made to the writ, but not to the return. Such motion to quash is in the nature of a demurrer. State ex rel. Cothren v. Lean, 9 Wis. 279. Since the relator did not take issue with either of the two returns, we must assume the facts therein stated to be true. The important question is whether such facts are sufficient to show that the relator is not entitled to the writ. The statute requires certain conditions to be complied with before certain foreign insurance companies, like the relator, can be admitted to do business in this state. Sec. 1955e, Stats. 1898. The statute also'provides: “ The commissioner, shall investigate the character and standing of all such organizations applying for license, and if approved by him, and if the conditions hereinbefore imposed have been complied with, he shall notify it of his approval: . . . provided, that no license to do business in this state shall be issued to any such organization to whose country, state or territory any Wisconsin corporation, society, order or association doing business on the assessment [385] plan, which has complied with the requirements of the laws of this state, has been or would be refused admission to do business on compliance with the laws thereof. The commissioner shall also refuse license to do business to any foreign organization whose name or title he shall deem too similar to one already appropriated or likely to mislead the public. These conditions having been complied with, he shall issue to each organization a license, after which it may transact business in this state; and said license shall continue in force until revoked pursuant to law; provided, that it shall be cause for refusing such license or for revoking it if the literature used by the organization in soliciting business is misleading in respect to the business done or in conflict with the law of this state.” Sec. 1955ft Stats. 1898. The statute also provides that: “ The commissioner of insurance may address inquiries to any insurance corporation doing business in this state or any officer thereof in relation to its doings or condition or any other matter connected with its transactions; and it shall be the duty of every corporation or officer so addressed to promptly reply in writing to such inquiries; and, whenever he shall deem it expedient so to do, or when any responsible person shall file with him written charges against any such corporation alleging that any return ' or statement filed by it with such commissioner is false or that its affairs are in an unsound condition, he shall, in person, or by some one to be appointed by him for that purpose, . . . examine into its affairs and condition; and it shall be the duty of the corporation, its officers or agents, to cause its books to be opened for inspection. . . . Whenever it shall appear to the said commissioner from his own examination or the report of the person appointed by him that the condition of any foreign company examined is unsound, he shall revoke the certificate granted such company and cause a notification thereof to be published in the official state paper and mail a copy thereof to each agent of the company, and the agent or agents thereof, after such notice, shall be required to discontinue doing business for such company. The commissioner shall, in like manner and upon like conditions, examine insurance corporations applying for admission to transact business in this state, and if the affairs or condition of any such corporation do not fully meet the requirements of law he shall withhold his certificate.” Sec. 1968, Stats. 1898. [386] It appears from the return that the defendant was in good faith seeking to do his official duty, as prescribed in these statutes, when he was stopped by the action of the relator. Counsel for the relator seeks to limit the inquiry to the question whether its rate of assessment was too low, and this is put upon the ground that the defendant, on February 6, 1901, refused the license on that ground. But on February 27, 1901, the defendant reconsidered such action, and proposed to make examination into the affairs and condition of the relator, as stated. The return expressly denied that the defendant refused to grant such license “ solely upon the ground that the rate of assessment of said relator was too low.” The defendant was prevented from completing such examination as he was expressly authorized by the statutes quoted to make, and which seems to have been his official duty to make, if necessary, in order to act intelligently on the application. He, as such commissioner, was to be satisfied that the relator was entitled to such license, before he was required to issue the same to him. In order to be thus satisfied, he was entitled, if necessary, to a reasonable time to examine and investigate into the affairs and condition of the relator. He was, to some extent, called upon to exercise discretion, and to pass judgment upon the facts when ascertained by such examination and investigation. It is well settled, as this court has repeatedly declared, that, “ when administrative officers refuse to perform a mere ministerial duty imposed upon them by law, and which they are thereby bound to perform without further question, then, if they refuse, a mcmdamus may issue to compel them to perform such duty; but, when such official act requires the exercise of judgment or discretion on the part of such officers, then a mcmdamus will not be granted.” State ex rel. Gericke v. Mayor of Ahnapee, 99 Wis. 326, and numerous cases there cited; State ex rel. Schermerhorn v. McCann, 107 Wis. 348; State ex rel. Buchanan v. Kellogg, 95 [387] Wis. 679. Even to that rule there is an exception. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 623. We must hold that the returns stated a good defense. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to quash the writ and dismiss the relation.