it, he may revoke the certificate of authority, and cause the company to be enjoined from further insuring of property."

This section was amended by chapter 159 of the Laws of 1889, [by] which, after providing for reports and examinations substantially as in the original section, the provision above quoted is changed so as to read as follows: "If the solvency of such company has been impaired, or the laws of the state have been violated, by the company, the superintendent of insurance shall immediately suspend the certificate of authority until the laws of the state have been fully complied with, or the solvency of the company restored; and he also may in such a case revoke the certificate of authority, and cause the company, upon proper proceedings instituted against it, to be enjoined from further insuring of property." Provisos are then added which, in substance, state that the superintendent cannot refuse an insurance company a certificate of authority to do business in the state, or revoke or suspend a certificate already granted to such a company, if it is solvent, and has complied and is complying with the laws of the state. And the provisos further recognize that actions may be brought against the superintendent of insurance in the county where his office is located, to compel him to issue certificates of authority to an insurance company, and to restrain him from revoking or suspending a certificate of authority which had been theretofore granted.

The language in the statute of 1885 which we have italicized was omitted in the amendment of 1889. In the earlier provision, the license or certificate of authority might be suspended on the mere finding of the superintendent that the solvency of the company had been impaired, and it might be revoked solely upon his judgment that the public safety required it. The language authorizing the suspension or revocation of a certificate of authority upon the mere finding and discretion of the superintendent is carefully excluded from the later provision. These changes, together with the provisions forbidding the refusal, revocation, or suspension of a certificate of authority by the superintendent, where the company is solvent, and has complied with all the laws of the state, as well as the proviso which recognizes that an action of mandamus may be brought to compel the superintendent to issue certificates of authority, and an action of injunction may be brought against him to enjoin him from revoking or suspending certificates of authority, indicate quite clearly the legislative purpose that, in the future, the determination and action of the superintendent should not be final and conclusive, so far as mutual fire insurance companies are concerned.

The fact that the law was amended so soon after a judicial construction had been placed upon it is not to be overlooked in ascertaining the object of the Legislature in enacting the amended law. By changing the language of the statute, the Legislature has indicated a purpose to change the rule of the former statute, and that the new is to have a different construction than had already been placed upon the old one.

This circumstance, and the changes in the phraseology that were made, manifest a legislative purpose to make the determination of the superintendent, as to the right of a mutual fire insurance company to begin or continue business, subject to judicial inquiry and control. If this was not the effect, then the amendment was for no purpose; and it is contended here that no actual change was made or intended by the amendment. But we cannot presume that the "Legislature intended to go through the form and time and expense of legislation to accomplish nothing, or to do that already fully and completely done." City of Emporia v. Norton, 16 Kan. 236. The first question presented must therefore be decided in the affirmative.

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PROVIDENT SAVING LIFE ASSUR. SOCIETY v. CUTTING, Insurance Com'r.

(Supreme Judicial Court of Massachusetts, 1902.

433, 92 Am. St. Rep. 415.)

181 Mass. 261, 63 N. E.

Case reserved from Supreme Judicial Court, Suffolk county. Petition for mandamus by the Provident Savings Life Assurance Society of New York against Frederick L. Cutting, Insurance Commissioner of the Commonwealth. Case reserved for the determination of the full court on the petition, demurrer, and agreed statement of facts. Petition dismissed.

KNOWLTON, J. This is a petition for a writ of mandamus to compel the insurance commissioner to change his valuation of the outstanding policies of the petitioner so as to diminish the reserve liability for which it must have assets to meet the requirements of our law. The duty of the commissioner to make this valuation under Rev. Laws, c. 118, § 11, is only a preliminary part of his duty, under section 17 of this chapter, annually to "make a report to the general court of his official transactions," in which he shall include, among other things, "an exhibit of the financial condition and business transactions of the several insurance companies as disclosed by official examinations of the same, or by their annual statements, abstracts of which statements, with his valuation of life policies, shall appear therein, and such other information and comments relative to insurance and to the public interest therein, as he thinks proper." It is important in one other way. It naturally is used in part as a foundation for action in case he is called upon, under section 7, to revoke or suspend the certificates and authority granted to a foreign insurance company because he is of opinion that it is "in an unsound condition," or "that its actual funds, exclusive of its capital, are less than its liabilities."

The complaint against the respondent is that in applying the rule of computation prescribed by the statute to a certain class of policies issued by the petitioner, he has made a mistake in holding that, for the

purpose of ascertaining their reserve value, they are to be treated as being from their inception policies for life or for an endowment period, and not as policies for one year only, with an option in the assured to continue them in force at the end of the year without a further physical examination, and without an increase of premium on account of his. greater age. It is not contended that he has acted in bad faith, or has willfully disobeyed the law. There is only a difference of opinion between the petitioner and the respondent as to the proper application of the rule prescribed by the statute to the methods of the petitioner in insuring under this class of policies.

A preliminary question is whether the decision of the commissioner in a matter of this kind is subject to revision by this court on an application for a writ of mandamus. In various proceedings affecting foreign insurance companies the statute makes no provision for an appeal from his decision, but manifestly intends that his conclusion, in the exercise of his judgment, shall be final. Particularly is this so in the valuation of policies and assets and the determination of the financial condition of foreign companies doing business in this commonwealth. "Before granting certificates of authority to an insurance company to issue policies or make contracts of insurance, the commissioner shall be satisfied by such examination as he may make and such evidence as he may require, that such company is otherwise qualified under the laws. of this commonwealth to transact business herein." Rev. Laws, c. 118, § 6. By Rev. Laws, c. 120, § 10, he has absolute authority to give or withhold his indorsement upon a requisition of the directors for the withdrawal of any portion of an emergency fund deposited by an assessment insurance company with the treasurer of the commonwealth. Under Rev. Laws, c. 120, § 12, the authority granted to a foreign assessment insurance company to do business in this commonwealth "shall be revoked if the insurance commissioner, on investigation, is satisfied that such corporation is not paying in full the maximum amount named in its policies, or that it has otherwise failed to comply with any provision of this chapter or its own contracts."

In regard to the reduction of capital stock of an insurance company it is provided by Rev. Laws, c. 118, § 37, that, "if the commissioner finds that the reduction is made in conformity to law, and that it will not be prejudicial to the public, he shall endorse his approval upon the certificate." By section 67 of this chapter a company organized under the laws of another state may be admitted to do business in this commonwealth, “if in the opinion of the commissioner, it is in sound. financial condition," etc. Section 72 provides that "no domestic life insurance company shall reinsure its risks except by permission of the insurance commissioner; but may reinsure not exceeding one-half of any individual risk." Under section 78 "no foreign insurance company shall be so admitted and authorized to do business until it has satisfied the insurance commissioner" of numerous facts therein stated. The terms of each of these sections make

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it plain that the opinion and judgment of the insurance commissioner is to be final and conclusive in determining these important matters upon which the rights of the insurance companies and the protection of the public depend. Most, if not all, of these several conclusions involve the consideration of questions of law as well as questions of fact.

In regard to the only important results depending upon the valuation of policies to ascertain the reserve liability of insurance companies, namely, the making of a report to the Legislature, and the revocation or suspension of certificates of authority to do business, it seems that the judgment of the commissioner is not subject to revision. Under section 17 he is to make a report of the financial condition of insurance companies and of their transactions and the valuation of life policies, which must mean a report, according to his understanding of the facts, founded on examinations and statements. By section 7 he is to revoke or suspend certificates of authority granted to a foreign insurance company if he "is of opinion, upon examination or other evidence, that a foreign insurance company is in an unsound condition, that it has failed to comply with the law, or that its actual funds, exclusive of its capital, if it is a life insurance company, are less than its liabilities," etc., and no new business can thereafter be done by such company "until its authority to do business is restored by the commissioner." If the "ground for revocation or suspension relates only to the financial condition or soundness of the company, or to a deficiency in its assets," there is no appeal from a decision of the commissioner. In other cases the company may apply to the Supreme Judicial Court for a reversal of his decision. Here again is an indication that the judgment of the commissioner in all matters of law or fact involved in determining the financial condition of a company for a purpose affecting it, even to the extent of terminating its existence as an insurer in this commonwealth, is to be final and conclusive.

The valuation of policies for the purpose of determining the reserve liability is only one of the processes necessary to determine the company's financial condition. It involves an application of the statutory rule to each policy, in connection with the methods and practices in the transaction of the business that exist either as a part of the science of life insurance or otherwise outside of the stipulations of the policy. New forms of policies may be adopted which were not known when the statutory rule was established, and new questions may arise depending in part upon the principles of life insurance as a science and in part upon the practices of the company, as well as upon rules of law, in determining how the statutory rule shall apply to these policies. In the present case, even if the contracts referred to are to be considered technically as the petitioner contends, the statute is silent as to whether the value of the option to continue the insurance at the end of the year without an examination, and at the premium fixed for an age a year younger than the assured would then have attained, is not to

be considered in determining the reserve liability of the company under the contract.

Questions of fact and questions of law must be considered in coming to a conclusion. In valuing all the assets of a company, which usually comprise investments of many kinds, questions of law as well as questions of fact must inevitably arise. If we are to examine each policy or class of policies, together with the methods of the company in fixing their premiums, and any other facts pertaining to the policies which are different from those belonging to other kinds of policies, for the purpose of determining whether the insurance commissioner has made a mistake of law in valuing them, we know of no good reason why his valuation of each item of the assets might not be examined to see if it is affected by a mistake of law. A mistake of the latter kind might be as detrimental to the company as one of the former, whether viewed in reference to its effect upon the commissioner's report or upon his determination to revoke or suspend the certificate of authority. If the commissioner's mistakes of law are to be corrected on an application for a writ of mandamus, his mistakes in the construction of contracts entering into investments should be dealt with as well as his mistakes in the construction of contracts for in

surance.

We are of opinion that the statute does not contemplate a revision of the commissioner's decisions in this way. This officer is intrusted. with the performance of important duties, and invested with power to use his discretion and judgment in matters which call for prompt and decisive action, and which would be difficult to investigate in our courts. We are of opinion that, at least so long as he acts in good faith, intending to obey the law, we cannot, by a writ of mandamus, compel him to change his conclusions, either of law or fact, in the valuation of the policies or assets of a life insurance company.

Without considering whether any mistake appears, we must deny the petitioner's application. Similar decisions have been made in regard to the powers of the insurance commissioner in Ohio and Kansas. State v. Moore, 42 Ohio St. 103; Insurance Co. v. Wilder, 40 Kan. 561, 20 Pac. 265.

Petition dismissed.

UNITED STATES FIDELITY & GUARANTY CO. v. LINE. HAN, Insurance Com'r.

(Supreme Court of New Hampshire, 1904. 73 N. H. 41, 58 Atl. 956.) Mandamus by the United States Fidelity & Guaranty Company against John C. Linehan, insurance commissioner. Writ granted.

The plaintiff is incorporated under the laws of Maryland, and under authority of its charter is engaged outside of New Hampshire in the business of a fidelity and surety company and in the burglary insurance