State Ex Rel. MacKey v. Hyde

I concur in all that my learned brother has said in the denial of the peremptory writ herein, but have not deemed it inappropriate to add my views thereto.

I. To sustain the application for a peremptory writ it is contended that Section 6317, Revised Statutes 1919, is burdened with a delegation of legislative power and is hence invalid. To render the section subject to this criticism it must appear that it is not complete in all of its terms and provisions, and that its operative effect is delegated to some one, usually a public official, charged by its terms with its enforcement. This section, under a discriminating analysis, having, as its terms clearly indicate, a well-defined purpose to regulate the selection, under the law, of those authorized to solicit insurance, defines, in general terms, those to whom such licenses may be issued, but leaves the details necessary to the effective discharge of this duty to the respondent. This summary of its context discloses no omission, either in its terms of provisions which will justify the conclusion, even by implication, that a resort to delegated power must be had to enforce its requirements. The section, therefore, may be characterized as manifesting the exercise of the judgment and discretion of the Legislature in its enactment and the reposing of trust and confidence in the Superintendent of Insurance to enforce it; and under no reasonable construction can it be said to embody a delegation of legislative power. To so hold it must appear from its face that the power delegated is purely legislative. [State ex rel. v. Pub. Serv. Comm., 162 P. 523.] Another requisite for the determination of the existence of this power is that it must appear to whom the same has been delegated (Commonwealth v. Sweeney, 61 Pa. Sup. 367); and it must be clear that without the exercise of the power by the person to whom it has been delegated the statute will be incomplete and incapable of enforcement. Although the Legislature in enacting this statute did not prescribe the conditions under which licenses to insurance brokers may be issued, it clearly invested the Superintendent of Insurance with power to grant licenses. As a necessary consequence of this investiture there follows the right and duty to prescribe the conditions under which the privileges sought may be conferred.

A large measure of discretionary power is vested in officers and boards charged with the administration of statutes enacted to promote the general welfare. This discretion has been exercised in this jurisdiction by empowering the former Board of Railway and Warehouse Commissioners to fix fees for the inspection and weighing of grain (Mer. Exchange v. Knott, 212 Mo. 616); and to authorize the State Auditor to prescribe the conditions under which pool sellers on race tracks might ply their vocation (State v. Thompson, 160 Mo. 333).

In State ex rel. Crandall v. McIntosh, 205 Mo. 589, and in the kindred case of State ex rel. Brown v. McIntosh, 205 Mo. 616, the question arose and was determined as to the right of one to practice the vocation of dentistry free from the regulation of a state board. In each of these cases it was held, in harmony with the trend of authority, that no one had a vested right to practice that vocation; that a license so to do when granted possessed no rights of property and had none of the elements of a contract; that it was a mere naked privilege, usable at the option of the licensee. Like reasoning, with equal force, may be applied to an application for a license by an insurance broker.

As we said in State v. Mathews, 44 Mo. l.c. 527: "In the organization of the Insurance Department, it was necessary, in order to carry out the act, to empower the Superintendent to do certain things; but the power would have been fruitless without authority to enforce it." With the power to enforce, the correlative power must exist to prescribe the conditions of enforcement, which of course must be reasonable in that they will not operate to interfere with the uninterrupted transaction of the calling licensed.

In State v. Stone, 118 Mo. l.c. 403, we declared that: "To allow the defendant to carry on the business of an insurance agent under the circumstances as developed in this case, without complying with the law in regard to insurance, would be simply licensing him and those whom he represents to evade the law, while companies and corporations engaged in the same business have complied therewith. If he and those whom he represents desire to engage in such business, they should comply with the law, and while deriving benefits from such business, bear the burdens imposed upon it by statute."

A compliance, therefore, with the law in applying for a license does not mean a mere formal application for this privilege, but one in accordance with the requirements prescribed by the superintendent. Additional instances might be cited in this and other jurisdictions illustrative of the right of public officials to prescribe the conditions under which different vocations may be pursued. Enough has been said, however, to establish the existence of that right.

II. There is nothing in the letter of Section 6317, supra, nor is there a reason deducible from its construction, when we take into consideration the purpose of its enactment, to authorize the word "may" therein to be construed as "shall." Such a construction would destroy the purpose of the section in that it would nullify the power of the Superintendent to regulate the granting of licenses.

The Superintendent is invested with the discretion denied by the relator and the alternative writ herein should not have been granted. It is therefore quashed and the proceeding dismissed.