Page:North Dakota Reports (vol. 2).pdf/63

 Mandamus proceedings. Peremptory writ, as prayed for by relator, issued. Defendant appeals. Reversed.

The opinion of the court was delivered by

WALLIN, J. The affidavit upon which the alternative writ issued was made by the secretary of relator, and states, in substance, that the relator is a mutual hail insurance company, organized under the laws of the territory of Dakota, and has been engaged in business in the states of North and South Dakota, with its principal office at Plankinton, South Dakota; that the relator has at all times fully complied with the laws of North Dakota, and is therefore authorized to do business in said state; that the defendant, as insurance commissioner, issued to the relator a certificate of authority to do business in North Dakota in 1890, and at the close of that year, and on January 27, 1891, relator filed with the defendant its annual statement, as required by law, which defendant accepted without objection, and has at no time given relator notice of any defect therein; that relator has literally complied with all the requirements to authorize it to do business in this state during the year 1891, and on January 27, 1891, defendant issued to it a certificate of authority for said year. On the same day relator tendered to defendant the fees for filing such statement, and for furnishing copies for publication, and for issuing said certificate. Defendant requested affiant to hold said money until some time later, which relator did. That on February 6, 1891, relator sent said money to defendant, who on March 3, 1891, returned the same. On March 10, 1891, relator again tendered said fees, together with the legal fees for issuing certificates to five agents, all of which the defendant refused to accept; and relator deposited said fees in the name and for the use of said defendant in the James River National Bank, and notified defendant accordingly. That defendant has failed to publish such annual statement, or designate the newspapers in which the same may be published. That on February 19, 1891, the defendant, by letter, attempted to recall relator's certificate of authority, and again, on February 25th, defendant, by letter asked relator to surrender such certificate, and stated that said fees would be returned later. On