
    Vorys, Superintendent of Insurance of Ohio, v. The State ex rel. Connell.
    
      State superintendent of insurance — Has discretion to refuse license to agent of foreign company — When such agent solicited insurance without license.
    
    
      It is witliin tlie discretion of the superintendent of insurance to, refuse a license as agent of a foreign life insurance company to one who, in violation of the statute, has, without first obtaining such license, solicited applications for insurance in such company, and, as a part of such solicitation, has offered a rebate of a portion of the regular premium.
    (Decided October 14, 1902.)
    Error to the Circuit Court of Franklin county.
    In the circuit court, the relator filed a petition for a peremptory writ of mandamus to compel the plaintiff in error, as superintendent of insurance of the state of Ohio, to issue to the relator a license and certificate of authority to act as agent for the Mutual Life Insurance Company of New York, in the transaction of its business of life insurance in the state of Ohio. He alleged that the company was duly incorporated and organized according to the laws of the state of New York, for the purpose of transacting the business of life insurance; that for more than ten years last past,- the company had been transacting said business in the state of Ohio, and was duly authorized to engage in said business in Ohio, and is now so authorized and licensed; that the relator himself is a citizen of the state of Ohio, and that he had at no time had a certificate or license from the superintendent of insurance, to act as agent, or to act in any capacity whatever for said company; that on the twenty-second day of October, 1900, the relator was duly appointed, by said company, as its agent for procuring applications for life insurance, and transacting its business in Ohio, and continued to be such agent, and, further, that on the twenty-second day of October, 1900, the relator made proper application to the superintendent for the granting and issuing to him of a certificate of authority, and license to act as such agent in the state of Ohio, and filed with him a certificate of his appointment by the company, giving his residence, and tendering the proper fees, and further alleging that both the relator and the company had performed all acts to be by them done, as a condition precedent to such application for a license. The omission of the relator to aver that his application was denied is supplied by the answer.
    The superintendent answers admitting his official character as superintendent, the corporate character of the Mutual Life Insurance Company, and its authorization to engage in the business of life insurance in Ohio, and substantially all the allegations of the petition, but he alleged:
    “That on or about the fifteenth day of October, A. D. 1900, he, the said relator, being employed and authorized by the said Mutual Life Insurance Company of New York, to act within the state of Ohio, as agent for said company, and then acting as such agent for said company, without procuring from the superintendent of insurance of Ohio, a certificate of authority so to do, or in any Avay being authorized to procure an application or applications for insurance, or to take risks, or in any manner to transact, or aid in transacting the business of life insurance in such state, at the time aforesaid, did, in the county of Columbiana of said state, solicit insurance upon the life of one J. F. Adams, a resident of said county and state, and did then and there offer to pay or allow, as an inducement to such insurance to the said J. F. Adams, a rebate of premium- payable on such policy of insurance, thereby giving to the said J. F. Adams a special favor, advantage, consideration and inducement not specified in the policy contract of insurance, in this to-wit: That the amount of the annual premium upon such policy of insurance, when computed by the rate charged for such insurance, to insurants of the same class and equal expectation of life, and due at the time of the delivery of such policy by its terms, was eighty ($80.00) dollars, and which amount the said relator, as an inducement aforesaid, offered to rebate in the sum of 50 per cent, thereof, by offering to pay or allow to said J. F. Adams the sum of forty ($40.00) dollars thereof.
    “Defendant says that by section four of the act of April 7, 1893 (90 O. L., pages 345 and 346), being Sections 3631-7, Bates’ Annotated Ohio Statutes, it became and was the duty of the said defendant, upon being satisfied that he, the said relator, had violated the provisions of said act, to refuse to issue to such relator any certificate of authority or license to act as agent for any company authorized to transact the business of life insurance in the state of Ohio. And defendant says that acting pursuant to the direction of the statute aforesaid, and having been and still being satisfied that said relator is guilty of the matters herein charged, refused and still refuses to issue to such relator a license or certificate of authority to act as such agent.
    “That afterwards said relator upon notice given him by the said defendant, appeared in person and by counsel before said defendant and admitted to said defendant tlie truthfulness of the facts herein averred, and he, the said defendant, then notified said relator that by reason thereof he, the said defendant, would not issue to him any license or certificate of authority to transact or aid in transacting any life insurance business within the state of Ohio.”
    The circuit court sustained a general demurrer to this answer, and the superintendent not desiring to plead further, it granted a peremptory writ according to the prayer of the petition.
    
      Mr. J. M. Sheets, attorney general, and Mr. Smith W. Bennett, for plaintiff in error, cited and commented upon the following authorities:
    
      Dodge v. Gridley, 10 Ohio, 173; Bank v. Roosa, 13 Ohio, 334; Hirn v. State, 1 Ohio St., 15; Jones v. Carr, 16 Ohio St., 420; State v. Franklin County, 20 Ohio St., 421; Malone v. Toledo, 34 Ohio St., 541; State v. Railway Co., 37 Ohio St., 157; State v. Rouch, 47 Ohio St., 478; People v. Formosa, 131 N. Y., 478; State v. Moore, 42 Ohio St., 103; Insurance Co. v. Ellis, 32 Ohio St., 388; People v. McCann, 67 N. Y., 506; United States v. Winn, 3 Sumn., 209; American Fur Co. v. United States, 27 U. S. (2 Pet.), 358; The Schooner Harriet, 1 Story, 251; The Schooner Industry, 1 Gall., 114; United States v. Athens Armory, 35 Ga., 344; United States v. Wiltberger, 18 U. S. (5 Wheat.), 76; Woodworth v. State, 26 Ohio St., 198; Bach v. State, 38 Ohio St., 664; Dwelling House Ins. Co. v. Webster, 4 Circ. Dec., 704; 7 C. C. R., 536; Sampsell v. Sampsell, 9 Circ. Dec., 510; 17 C. C. R., 455; Hendershot v. State, 44 Ohio St., 209; 1 Bishop on Crim. Law, Secs. 461, 464; 2 Bishop on Crim. Law, Sec. 346; Bishop on Stat. Crimes, Sec. 271; Insurance Co. v. Eshelman, 30 Ohio St., 647; 
      Hooper v. California, 155 U. S., 648; Doyle v. Insurance Co., 94 U. S., 535; Fire Assn. v. New York, 119 U. S., 110; Barron v. Burnside, 121 U. S., 186; Petroleum Co. v. Weave, 27 Ohio St., 343; Telegraph Co. v. Mayer, 28 Ohio St., 521; Lewis v. Bank, 12 Ohio, 132; Bank v. Jones, 16 Ohio St., 145; Moses v. State, 65 Miss., 56; State v. Insurance Co., 50 Ohio St., 252; Hard v. Robinson, 11 Ohio St., 232; Walker v. Cincinnati, 21 Ohio St., 15; Ireland v. Turnpike Co., 19 Ohio St., 369.
    
      Mr. J. Y. Todd, for defendant in error, submitted no brief.
   Shauck, J.

The principles of construction here called in question are not distinguishable from those which were considered in State ex rel. Insurance Company v. Moore, 42 Ohio St., 103. The judgment there rendered follows the third proposition of the syllabus:

“When such officer (the superintendent of insurance) , in determining upon the performance of a public duty, is called upon to use official judgment and discretion, his exercise of them, in the absence of fraud, bad faith; and abuse-of discretion, will not be controlled or directed by mandamus.”

In the present case, the superintendent insists that in refusing to issue to the relator a license and certificate of authority, he was exercising the discretion which was there held to be vested in him, and so exercising it, as was required by his duty to see that there is an observance of the insurance laws of the state. Was it within his discretion to refuse the license in view of the facts alleged in his answer, and admitted’ by the demurrer?

The application for a license w’as made by the relator on the twenty-second day of October, 1900. On the fifteenth day of October, the relator, without the required authority to solicit applications for insurance in the insurance company whose agent he was, had solicited such application, and had, as an inducement to the person whose application he solicited, offered a rebate of fifty per cent, of the premium payable by other persons of the same class. Not only had these acts been done by the relator, but, at the time of his application for a license, they were admitted to have been done, and that admission was the ground for the refusal of the superintendent. The soliciting of the application by the relator, without having a license as the agent of a foreign insurance company was expressly prohibited by Section 3604, Revised Statutes, and the offer of a rebate was expressly prohibited by the provisions of Section 3631-4, Revised Statutes. The provisions of the statute, which had been thus violated by the relator, are comprehended within the terms of section 3631-7, declaratory of the consequences of such violation:

‘Tt shall be the duty of the superintendent of insurance, upon- being satisfied that any such corporation, or agent thereof, has violate'd any of the provisions of this act, to revoke the license of the company, or agent, so offending, and no license shall be granted to such company, or agent, for one year after such revocation.”

By the explicit terms of this section, it would have keen the duty of the superintendent to revoke the license, if one had been issued, and he would, at the time of the application, have been without authority to grant another. His refusal being in accordance with the manifest spirit of the statute, and in furtheranco of its obvious purpose, tv as within his discretion, if not within his imperative duty.

Judgment of the circuit court reversed, and judgment for the plaintiff in error.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.  