
    The People ex rel. Reginald Woodward v. Simon W. Rosendale, Attorney-General.
    
      (Supreme Court, Special Term, Albany County,
    
    
      Filed October 30, 1893.)
    
    1, Mandamus—When proper.
    
      Mandamus is the appropriate remedy to compel the performance of executive and ministerial duties by public officers.
    8. Same—Insurance certificate.
    If the attorney-general, in determining whether a proposed corporation is for the purpose of carrying on a business permitted by the statute, falls into an error as to what the law is, mandamus is the most speedy and simple, if not the only remedy.
    3. Same.
    His duties in this matter are entirely ministerial. 0
    "4. Same.
    The fact that, to discharge such duties, he is required to decide questions of law, does not render such duties judicial.
    6. Insurance law—Generad purpose.
    The general purpose of the insurance law is not to limit or restrain the carrying on of any, but to foster and protect all, lawful Insurance business.
    6. Same.
    In this case, it was held that the proposed business was not contrary to public policy or good morals, or in violation of any business principle.
    
      Woodward & Mayer, for relator; S. W. Bosendale, for resp’t.
   Herrick, J.

The relator, with others, signed and executed a certificate or declaration of intention to incorporate an insurance company; this certificate or declaration of intention, and proposed charter were transmitted to the superintendent of insurance of the state and application made to him for a certificate of incorporation. The superintendent of insurance transmitted the same for examination and certification to the defendant, as attorney-general of the- state, pursuant to § 10, chap. 725, of the Laws of 1893. The attorney-general refused to attach his certificate, because as stated by him in a communication to the superintendent of insurance it “is not a kind of casualty insurance, such as is specified in any of the sub-divisions of § 70 ; nor is it a kind of insurance that can be lawfully carried on under said section. I therefore decline to attach my certificate of approval to said proposed declaration and charter.”

The relator in behalf of himself and the other signers to such declaration of intention to incorporate, applies for a mandamus against the attorney-general to compel him to attach his official certificate to such declaration of intention and charter. The first question that is raised is as to whether a ma,ndamus is the proper •remedy. A mandamus is a fit and proper remedy to enforce the performance of an official duty by a public officer, provided the act that is asked to be performed is not a judicial one, or one that is within the discretion of the officer proceeded against, ordinarily the performance of such duties will not be enforced by mandamus, any further than to compel action, without determining what such action may be. It is the appropriate remedy to compel the performance of executive and ministerial duties by public officers. People v. Mead, 24 N. Y., 114-119. Ministerial duty is one in respect to which nothing is left to discretion, it is a simple, definite duty, arising under conditions admitted or proved to exist and imposed by law. State of Mississippi v. Johnson, 71 U. S. 475-98.

The fact that the officer uses judgment and discretion in the performance of his duties does not make .his action or powers judicial in their character. People v. Contracting Board, 27 N. Y., 378-84; The People ex rel. Corwin v. Walters, 68 N. Y., 403-10. It seems to me that the duties of the attorney-general in this matter are entirely ministerial. The law reads: “ The superintendent shall not file such declaration and charter, or grant such certificate ' of authority until such declaration and charter shall have been examined by the attorney-general, and certified by him to the superintendent to be in accordance with the requirements of law.” Section 10, chap. 725 of the laws of 1893.

The duty is imposed upon him of seeing whether the proposed charter is in proper form, and whether the proposed incorporation is for the purpose of carrying on any of the binds of insurance allowed by law. The fact that to enable him to discharge the duties thus imposed on him, he is required to decide questions of law, I do not think renders such duties judicial ones. A great many -of the ministerial duties imposed upon public officers require in the first instance the determination of some question of law, as for instance, the secretary of state in filing certificates of incorporation has to determine whether the purposes of the proposed incorporation are within the statute, and whether the articles are in proper legal form, and the filing by him of certificates of incorporation has been enforced by mandamus. The People ex rel. v. Nelson, 46 N. Y., 477; The People ex rel. M. C. Co. v. Rice, 138 N. Y., 151; 51 St. St. Rep., 853. So also the comptroller of the state has been compelled by mandamus to perform acts, which required in the first instance the determination by him of some q uestions of law, as to whether it was his duty to do what was asked of him. People ex rel. Bockes v. Wemple, 115 N. Y., 302 ; 26 St. Rep., 330; People ex rel. Gilbert v. Wemple, 125 N. Y., 485; 36 St. Rep., 20; See also People v. Allen 42 Allen 404.

In this case it is not a matter of discretion with the attorney-general ; if the proposed incorporators have complied with the law as to the form of their application, and their business is a lawful one within the insurance statute, then they are entitled as a matter pf right to their certificate of incorporation, and as they cannot receive that except upon the certificate of the attorney-general, it is his duty, when the law has been complied with, to grant such certificate; that duty cannot be enforced by action; neither can it by certiorari; only a judicial determination is re viewable by certiorari. People ex rel. Leo v. Hill, 126 N. Y., 487-506 37 St. Rep., 792. Certiorari is a proceeding to review the acts of inferior tribunals and judicial officers, and to bring up the records of their proceedings to see whether their actions have been in accordance with the law; but it is not a proceeding to compel officers to discharge their official duties. The fact that the attorn ey-gen eral is a law officer of the state does not make his duties judicial any more than similar duties to be performed by the secretary of state, or the duties of the comptroller, in the cases above cited, or the examination of such declarations and proposed charters by the superintendent of insurance prior to the passage of chapter 728 of the Laws of 1893, and granting a certificate thereon, are judicial in their character. It is the duty to be discharged, not the person discharging the duty, that determines whether it is judicial in its nature or not.

I have not been cited to any case by either party precisely in point, and in the brief examination that I have been able to give to the subject, the nearest approach to it that I have been able to find is that of The People v. Tremain, 17 How. Pr., 10. That was an application for a mandamus to compel the attorney-general to give a certificate pursuant to the following provision of the statute: “ Whenever costs shall be adjudged against the People in any civil suit or proceeding, instituted by any officer duly authorized for that purpose, it shall be the duty of the comptroller to draw upon the treasurer for the amount thereof, upon the production of an authenticated copy of the record of judgment, with a taxed bill thereof; and upon a certificate of the attorney-general that such suit was duly instituted as by law required.”" It will be seen that under that statute the attorney-general was required to pass upon a question of law. The court of special term held that a mandamus was an appropriate remedy; the order of the court, however, was reversed at general term (same, page 142) upon another point; the court refusing to pass upon the question as to whether proceeding by mandamus was proper.

The enforcement of duties to be performed by state officers by mandamus has. been so long the practice of the courts, and in recent years, at least, unchallenged, as evidenced by the cases cited herein, that I can see no reason to depart from it now, and the fact that in this case, it is the attorney-general who.is proceeded against, makes no difference: he is not acting as a court.

If in determining whether a proposed corporation is for the purpose of carrying on a business permitted by the statute, he falls into an error as to what the law is, as did the secretary of state and comptroller, in the cases hereinbefore cited, and refuses to grant the certificate, the law cau be determined and his compliance therewith enforced, as was done in those cases. Mandamus is the most speedy and simple, if not the only, remedy in such cases. The objection, therefore, as to the form of the remedy must, be overruled. The objection upon the merits made by the attorney-general to attaching the certificate is that the application is made under subdivision 8 of § 70 of the Insurance Law, and that in his opinion this is not a kind of casualty insurance such as is specified in any of the subdivisions of § 70; nor is it the kind of insurance that can be lawfully carried on under said section.” The business proposed to be carried on as set forth in the proposed charter of the relator and his associates, as described in the proposed charter, is as follows: “ Section 3. The kind of business to be undertaken and carried on by said company shall be: The inspection and certification as to the sanitary conditions of buildings and premises, the insurance of owners, lessees, or tenants of buildings and premises against loss or damage to life, or health from causes arising from the imperfect sanitary conditions of such buildings or premises; the insurance of landlords, lessees, tenants or occupants of houses, flats, or office buildings, or other structures from loss occasioned by imperfect plumbing, bursting pipes, or leaks, to walls, ceilings, furniture or goods and for the doing of such other business as may be lawfully connected with the business of sanitary inspection, care and insurance at such rates and upon such conditions as may be ordered and provided by the directors of said company; under subdivision 8 of § 70, art. 11, of chap. 690 of the Laws of 1892.”

Section 70 of chapter 690 of the Laws of 1892, provides for the incorporation of life, health, casualty and fidelity insurance companies, and the first seven subdivisions thereof specifies various kinds of casualties that maybe insured against, none of them include those specified in the proposed charter of incorporation in question here. The 8th subdivision of § 70 reads as follows: “Against any other casualty specified in the charter which may lawfully be the subject of insurance,” and it is upon the construction to be given to the language of that subdivision that this controversy arises. The general purpose of the insurance law,” (chapter 690 of the Laws of 1892, as I understand it, is to regulate and supervise the business of insurance, and bring under the superintendence and control of the state authorities all corporations desiring to engage, or engaged, in insurance business in this state. It was not intended to limit or restrain the -carrying on of any lawful insurance business, but it was intended to foster and protect, and not to limit or restrict it; and in interpreting and construing the law, those general purposes must be kept in view.

It classifies the different kinds of insurance corporations that may be organized under the laws of the state as life, health, casualty, fire, marine, title, credit, fraternal, town and county, co-operative insurance companies, and the insurance of domestic animals, and provides how corporations for conducting the different kinds of business so classified shall be formed and governed.

Article 11 of said law contains provisions in relation to life, health and casualty corporations. Section 70 before referred to, is the first section of said article and sets forth in the first 7 subdivisions, life, health, fidelity, and all the commonly known kinds of casualties originally insured against; and the legislature, apparently out of abundant precaution, not to shut out any kind of lawful insurance, and to bring all kinds of casualty insurance, within the provisions of article 11 of said law, added the 8th subdivision ; and but for such 8th subdivision the only kind of casualties that corporations could be formed to- insure against, would have been those mentioned in the first seven subdivisions, indeed the construction contended for by the defendant is, that notwithstanding such 8th subdivision, the only casualties that can be insured against are those mentioned in the preceding seven; the construction contended for by the relator is, that not only can they be incorporated to insure against casualties specifically named in the said seven subdivisions, but also for any and all others that are not unlawful.

Either construction contended for, by the parties hereto, is open to objection; the construction contended for by the attorney-general necessarily confines the insurance business of this state to the kinds mentioned in the first seven subdivisions, and renders the eighth subdivision meaningless and of no effect; it confines and restricts casualties “which may be the lawful subjects of insurance,” as authorized by subdivision eight, to those specified in the preceding seven subdivisions. On the other hand it is said that the construction of subdivision eight contended for by the relator, renders the preceding seven subdivisions useless, and that in effect it reduces § 70 to this, that thirteen or more persons may become a corporation for the purpose of insuring against any casualty which may be lawfully the subject of insurance. It is to be presumed that the legislature acted deliberately, knew what it was enacting, and that a purpose was intended to be subserved by each of these subdivisions; full force and effect should be given to the intent of the legislature.

The construction contended for by the relator, while it does not nullify the first seven subdivisions, yet renders them unnecessary, except as specific declarations that the kinds of insurance therein mentioned are lawful, and leaves no question for the court as to the legality of such kinds of insurance, leaves an avenue for the growth of the insurance business in hitherto undeveloped fields, where the same is not contrary to the provisions of any statute, or the common law, and brings all corporations formed to insure against casualties of every description under the provisions of article 11 o fthe law; this construction gives some force and effect to all the subdivisions, whereas the construction of subdivision eight contended for by the defendant, absolutely nullifies it, renders it of no force and effect, and limits the growth of insurance, and the subjects of insurance, for which a company can be incorporated in this state, to those mentioned in the first seven subdivisions; that I do not think was the intention of the statute.

I have been referred to no law prohibiting the kind of insurance contemplated by the proposed charter.

And without discussing it, suffice it for me to say, that I do not see' that the proposed business is contrary to public policy, to good morals, oris in violation of any business principle.

As the facts are not disputed, let a peremptory mandamus issue as prayed for by relator, without costs.  