Page:North Dakota Reports (vol. 2).pdf/62

 THE STATE OF NORTH DAKOTA ex rel. THE DAKOTA HAIL ASSOCIATION, of Plankinton, Plaintiff and Respondent, v. A. L. CAREY, Commissioner of Insurance of North Dakota, Defendant and Appellant.

Mandamus-Parties-Procedure-Insurance Companies-Right to Transact Business.

1. Under the territorial statutes now in force in this state, the remedy by mandamus is in some respects assimilated to a civil action, but is not in strictness a civil action, and is a special proceeding. Comp Laws 1887, S 5505, 5536.

2. The party prosecuting the writ may be known as the plaintiff, and the adverse party as the defendant; but where the writ is sought to enforce a duty due the state as such, or sought with respect to a right of common concern to a large number of persons, but not a right where the state as such is concerned, or sought to enforce a right peculiar to the relator, the proceeding should be had in the name of the State ex rel. the --

3. Where the remedy concerns the state as such, the writ should be applied for by the attorney general, or, at least by his assent.

4. Where the subject-matter does not concern the state as such, but is of common concern to a large number of persons-for example, to all citizens of a county, town, city, or district-any citizen of the locality is beneficially interested, and may apply for the writ, within the meaning of § 5518, Comp. Laws 1887.

5. Where the writ is sought for the benefit of the relator alone, the fact of his special and peculiar right to the writ must be made to appear by the affidavit.

6. The insurance commissioner of this state, in granting or revoking a certificate authorizing insurance companies to transact business within the state acts within the limits of a discretion express y conferred upon him by statute. Such official discretion, when once it has been exercised, cannot be controlled or reviewed by mandamus.

(Opinion Filed June 16, 1891.)

APPEAL from district court, Burleigh county; Hon. W. H. WINCHESTER, Judge.

C. A. M. Spencer, Att'y Gen., for appellant. S. L. Glaspell, for respondent.