Mutual Benefit Life Ins. of Newark, N.J. v. Welch, Ins. , 71 Okla. 59 ( 1917 )

On rehearing we adhere to the conclusions formerly reached in this case, but, for fear that some of the expressions in the opinion are susceptible of a construction not intended by the court, we wish to say that, under the law defining the powers and duties of the Insurance Commissioner, that said commissioner is vested with a large and wide discretion. This discretion, however, is not unlimited, but is as fixed by the law itself. The law fixes the sphere within which he may act, and the Legislature may and in this case doubtless has given him a very wide discretion within that sphere, and so long as he acts within the discretion so vested in him by the law he will not be controlled by mandamus or injunction. Although in the first instance the Insurance Commissioner has the right and it is his duty to construe the law in determining the sphere within which he has a right to act, yet it is at last and ultimately the duty of the courts to say whether he has acted within the limits of the powers so conferred on him by the law. The correct rule, we think, is announced in the case of North British Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, which case is cited with approval in the original opinion. We especially approve the following language of the court:

"But it must always be remembered that the public functionary of the class under consideration can act independently of the courts only to the extent that the law gives him that power. The law is the source of his authority, and he has no discretion beyond that conferred. All of his acts must be within the limits of that authority, and of this the courts must finally judge. Though he may undoubtedly and in every instance construe the law for himself as to discretionary matters actually within the law, he cannot by interpretation, however conclusive to his own mind, bring within his discretion any matter that is not in fact so placed by the law when rightly interpreted by the courts. His domain is prescribed by the law, and within that domain the discretion given him is beyond the control of the courts; however, it is the province of the courts to determine the limits of that domain, and keep him within its real bounds, and to construe the law and define the limits of his authority in all proper cases.

"Then it is the province of this court, and not that of the Insurance Commissioner, to determine finally whether or not the action proposed by him, in the present instance, is within the scope of his authority. The act gives him extensive power of revocation. That power is in a large degree discretionary, and hence beyond extraneous control; but it is not unlimited."

Although, in our opinion, the question is very close, it would seem that section 70, art. 1, c. 21, Laws 1909 (section 3473, Rev. Laws 1910), confers upon the Insurance Commissioner the authority to determine whether the form of policy presented is in violation of the law, and the commissioner, in disapproving the form of policy submitted to him by the plaintiff in error, was acting within the bounds of his decretion vested in him by the legislative enactment, and therefore within the scope of his authority. But within this limit the commissioner is not authorized to act arbitrarily or to abuse the discretion he is permitted to exercise, nor can he go beyond the limits of his authority or discretion as conferred upon him determined by the courts and in such cases, by the law. Whether he has done this must ultimately, and when properly presented, be determined by the courts and in such cases, if he has acted within the scope of his authority or discretion, the relief will be denied; but where he has acted without the scope of his authority, and beyond the bounds within which he is permitted to act, the courts will not hesitate to award relief to the party aggrieved by his action.

HARDY, KANE, BRETT, TURNUR, and TISINGER, JJ., concur.