"The action of the Corporation Commis- | cedure has in it all the elements of a civil acsion," whether it be determined to be min- tion. The facts stated in the affidavit for the isterial, discretionary, or judicial, is by this writ may be controverted by a return, raising both questions of law and fact. The return statute made reviewable in the courts. From likewise may be controverted, and a trial had on the Constitution and laws of the state we the issues of fact thus raised, either before the think the superior court of Maricopa county court, a jury, or a referee, as the court may was the proper and competent tribunal to dict or findings not only directing the issuance order. Judgment can be entered on the verappeal to for a review of the action of the of a peremptory mandate, but for damages and Corporation Commission. Whether manda- costs, on which execution may issue. In other mus is the "proper proceedings" mentioned in words, the statute has been so framed as to the statute is another question. It is evident its scope and purport, whether these be cases of afford complete relief in all cases falling within that the legislative intent was to refer the willful violations of recognized rights or de complaining party to some well-known stat- nials, made in good faith, that the rights conutory or common-law proceeding. It might tended for exist. The right to sue out the writ have provided for a summary hearing and dispute, but on what answer is given to the is not made to depend on the character of the review of the action of the Corporation Com- question: Can the ordinary course of law afmission in the superior court, as it did in ford a plain, speedy, and adequate remedy? If paragraph 3381, Civil Code, in reference to the ordinary course of law will furnish such a the revocation or suspension of licenses to do remedy, the writ will not issue; otherwise it will. It was to avoid circuity of action, thus business by other kinds of insurance corpo- doing away with the necessity of resorting to rations than fraternal. It did not see fit more than one proceeding for the enforcement to do that, but, instead, provided that when of a right, that the law was framed. This court the Corporation Commission refused to issue tween the modern and the ancient writ, and has has many times recognized the differences bea license or revoked a license to a fraternal repeatedly upheld the remedy in cases where corporation that such corporation could have formerly it would have been denied." such action reviewed "by proper proceedings in any court of competent jurisdiction."

We think that proceeding or "proceedings," as here used, has reference to "a prescribed mode of action for carrying into effect a legal right." The word has many different meanings, depending upon the context in which it is used, but we think its ordinary meaning and the meaning here intended, as gathered

from the context, is the form of law or the mode in which a judicial transaction is to be conducted. 32 Cyc. 406.

It is said that "under the Code of some states mandamus is regarded as a special proceeding." 26 Cyc. 142. Our statute defining mandamus and prescribing its procedure in paragraph 1558, Civil Code, says:

*If the proceedings be brought in the Supreme Court the court shall. *** If brought in the superior court the trial shall be had in the county in which the proceeding is brought."

In State ex rel. Brown v. McQuade, 36 Wash. 579, 79 Pac. 207, the Supreme Court of the state of Washington, in discussing a proceeding in mandamus and the use of the writ, said:

"Formerly mandamus was regarded as a prerogative writ, issued, not as of right, but at the pleasure of the sovereign or state, in his or its name, as an attribute of sovereignty; but with us the writ is not in any sense a prerogative writ, or a writ to be issued at the discretion of the court. It is a procedure under the Code, and any person who has a cause that calls for its invocation has the same right to sue out the writ as he has to commence a civil action to redress a private wrong. As we said in State ex rel. Race v. Cranney, 30 Wash. 594, 71 Pac. 50, a proceeding in mandamus is a judicial investigation, the object of which is the determination of civil rights, the same as in ordinary proceeding; not only the determination of rights, but their determination in such a way as to culminate in an effective judgment.' In our practice mandamus is nothing more than one of the forms of procedure provided for the enforcement of rights and the redress of wrongs. The pro

We know of no form of action or proceeding, statutory or otherwise, open to appellee and offering relief, unless it be the proceeding by mandamus. Our statute provides that a party beneficially interested, there being no plain, speedy, and adequate remedy in the ordinary course of law, shall be entitled to a writ of mandamus from the Supreme Court or superior court, as the case may be— (whether the Governor is a member of such "to any inferior tribunal, corporation, board board or not) or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person."

Paragraphs 1553 and 1554, Civil Code 1913. It provides for the forming of issues, and, if the answer raises any question of fact essential to the determination of the matter or affecting substantial rights of the party, a jury trial, in the discretion of the court, may be granted.

Mandamus has been recognized as a "proper proceeding" by the courts of other states upon the application of insurance companies to compel insurance commissioners to issue licenses and permits to transact business where, by the local law, such commissioners are the designated agencies for such purpose. And, where the insurance company has complied with the requirements of the law in its application, the courts have directed the issuance of a license. State ex rel. v. Fidelity & Casualty Co., 49 Ohio St. 440, 31 N. E. 658, 16 L. R. A. 611, 34 Am. St. Rep. 573; Phoenix Carpet Co. v. State, 118 Ala. 143, 22 South. 627, 72 Am. St. Rep. 143; Guy L. Wallace & Co. v. Ferguson, State Insurance Commissioner, 70 Or. 306, 140 Pac. 742, 141 Pac. 542; People ex rel. U. S. Grand Lodge

v. Payn, 161 N. Y. 229, 55 N. E. 849; State ex rel. v. Vorys, 69 Ohio St. 56, 68 N. E. 580. We think the form or mode of action adopted in this case by the appellee is within the terms of the statute when it used the phrase "proper proceedings."

[2] The statute provides that the commission shall reduce its ruling, order, or decision to writing and file the same in the office of the Corporation Commission, and shall furnish a copy thereof, together with a statement of its reasons, to the officers of the society. The court is empowered to review the commission's action as expressed in its order, ruling, or decision, together with its reasons. The appellant does not undertake to justify its action by any order, ruling, or decision in writing, nor does it assign any reason in its answer for refusing to issue a license, except that it contends the law lodges in it the discretion to grant or refuse a license as it may choose and in doing so it is exercising quasi judicial functions.

The appellant relies in part on section 5 of article 15 of the state Constitution as Justifying its refusal to issue a license. That

section reads as follows:

"The Corporation Commission shall have the sole power to issue certificates of incorporation to companies organizing under the laws of this state, and to issue licenses to foreign corporations to do business in this state, as may be prescribed by law."

lawmaking body, neither can it refuse arbitrarily or capriciously to license those named and possessing the qualifications prescribed by law, and which corporations have complied with all the provisions of the law entitling them to a license. This we say, in view of the language used in the above constitutional provision, and also in paragraph 3486, Civil Code, supra. This paragraph says:

"Any society shall be entitled to a license to transact business within this state" upon filing therein enumerated "and furnishing the Corpowith the commission the papers and statements ration Commission with such other information as the commission may deem necessary to a proper exhibit of its business and plan of working."

"Other information" mentioned which the commission is authorized to demand is information that the commission may require from the corporation applying for license, other than that specifically enumerated and named in the law. In this case no "other information" was asked for or demanded of the appellee. It would seem that for some reason of its own, not in any way exhibited or shown in its order of refusal or answer to the complaint, the appellant, Corporation Commission, refused to issue the license applied for upon a showing in all respects fulfilling the requirements of the law.

Notwithstanding the provision in the above statute that "any society shall be en

titled to a license to transact business in this

We think the meaning of this provision of state" upon qualifying as provided, that absothe Constitution is that the sole and exclu- lute right, it may be contended, is qualified sive power to issue certificates and licenses by the further statement that "the Corporais lodged in the Corporation Commission, but tion Commission may issue a license to such that the Legislature may prescribe the kinds society to do business in this state until the of corporations that may do business in this first day of the succeeding April." If there state and their qualifications and make it the is no obligation on the part of the commission duty of the Corporation Commission to issue to issue a license upon a proper and sufficient to such corporations, upon proper application application, then the right to one, as given in and showing, licenses and certificates. In this section, may be completely nullified by other words, the Legislature may not au- the nonaction or the arbitrary and capricious thorize any other commission, board, body, or action of the commission. Their judgment of person to issue certificates and licenses, that the qualifications of an applicant to do busiright or power being by the Constitution ness will be substituted in that event for the lodged in the Corporation Commission, but judgment of the Legislature. We do not it may prescribe by law the kinds and quali-think that the word "may" is used in a perfications of corporations and the rules and missive or optional sense, but that it has the regulations for the conduct of their business. equivalent meaning of "shall," and that it is And it would seem that, if the Legislature has set forth what corporations may enter this state to transact business and the steps to be taken by them to secure that privilege, and it is ascertained, by the method provided, that any such corporation has met the conditions of the law, which seems to be the case here, nothing remains for the Corporation Commission to do but to issue a license or certificate. The power of the Legislature to define the kinds of corporations and their qualifications to do business in this state is unlimited, except that it may not lodge the duty of issuing the certificate or license in any other agency than the Corporation Com mission. The commission cannot license cor

the duty of the commission to issue a license when the applicant has in all respects shown itself qualified in the particulars named by the Legislature, and in addition thereto given "such other information as the commission may deem necessary to a proper exhibit of its business and plan of working." The commission is an agency of the state created for the purpose of exercising certain functions and performing certain duties for the state, not for the purpose of prohibiting or restricting insurance business, but for the purpose of regulating it in the manner provided by law. Persons and corporations whose business is that of insurance are vitally interested in the privileges conferred by licenses to do busi

state without a license; with a license they may carry on the business for which they were organized. In McLeod v. Scott, 21 Or. 94, 26 Pac. 1061, it is said:

"It is a general principle of statutory construction that, when the word 'may' is used in conferring power upon any officer, court, or tribunal, and the public or a third person has an interest in the exercise of the power, then the exercise of the power becomes imperative, and Endl. Interp. St. par. 310, Sedg. St. & Const. Law, 377, and Potter, Dwar. St. p. 220, note 27, are referred to as authority. Smith v. King, 14 Or. 10, 12 Pac. 8, is to the same effect, and the undoubted weight of authority is the same way. People v. Commissioners [130 Ill. 482] 22 N. E. 596, 6 L. R. A. 161, and note."

Again it is said:

"It is well settled in statutory interpretation that the word 'may' may be read 'shall."" Rock Island County Supervisors v. United States, 71 U. S. (4 Wall.) 435, 18 L. Ed. 419.

This rule of interpreting "may" as meaning "shall" in cases like this is so well settled we refrain from citing authorities to any extent. It is possible that cases might arise wherein the commission, passing upon an application for licenses to transact business in this state by a foreign fraternal society or corporation, would be required to exercise discretion or judicial functions, but clearly this is not shown to be a case of that kind. Should such a case arise, it will then be time enough to determine whether the action of the commission may be reviewed and revised by the proceeding in mandamus.

We think the act of issuing a license to the appellee authorizing it to do the business of insurance under the facts of this case was specially enjoined as a duty resulting from the office of the Corporation Commission, and the judgment of the lower court should be

sustained.

Judgment affirmed.

orders assigned as error only upon appeals from a final judgment. Paragraph 509 provides that all pleas in abatement or which do not go to all issues of law arising on the pleadings and the merits shall be disposed of by the court before trial on the merits. In an action for an accounting, from orders overruling defendant's general and special demurrer and disallowing his plea in bar, he appealed. Held, that while the orders appealed from determined the issues of law raised by the pleading applicable to the facts, they left the questions of fact unsettled, and were intermediate orders in contemplation of the trial on the merits, and not final appealable orders.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 643-647; Dec. Dig. 93.

For other definitions, see Words and Phrases, First and Second Series, Final Order.]

Appeal from Superior Court, Apache County; George W. Crosby, Jr., Judge.

Action by Caroline Desmont and another against the Navajo-Apache Bank & Trust Company, a corporation, and others. From orders overruling a general demurrer and disallowing a plea in bar, defendants appeal. Dismissed.

E. S. Clark, of Prescott, and Fred W. Nelson, of St. Johns, for appellants. George Estes, of El Paso, Tex., for appellees.

CUNNINGHAM. J. This action was com

menced by the appellees praying for an accounting and other relief, resulting from transactions dating from the year 1906, involving a note and a chattel mortgage on sheep to secure the note and payment on account. The appellants defended upon the grounds of misjoinder of parties defendant and nonjoinder of a necessary party and upon the grounds that the action is barred by the five-year statute of limitations; that the complaint fails to state facts sufficient to constitute a cause of action; that the matters and things set forth in the complaint

FRANKLIN and CUNNINGHAM, JJ., con- have been formerly adjudicated by a compe

cur.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1-4; Dec. Dig. 1.] 2. APPEAL AND ERROR 93 APPEALABLE ORDERS "FINAL ORDER" DEMURRER PLEA IN BAR. Civ. Code 1913, par. 1227, provides for an appeal from: (1) Final judgments in actions in the superior court; (2) from certain enumerated orders; (5) from orders affecting a substantial right and determining the action and preventing judgment from which an appeal might be taken. Paragraph 1230 provides that, on appeal from a final judgment the Supreme Court may review any intermediate order involving the merits and necessarily affecting the judgment. Paragraph 1231 requires the Supreme Court to review all

*

tent court in three separate actions and are barred; and an answer denying all and singular the allegations of the complaint. On the 13th day of June, 1915, the court ordered the said pleas and special demurrer overruled. The court ordered the general demurrer overruled and the plea in bar, setting forth former adjudication, disallowed, whereupon the defendants gave notice in open court of appeal to the Supreme Court "from all orders and rulings of the court as to the On July 2, 1915, the court refused to set the case for trial on the issues of fact pending the decision of the Supreme Court as to whether or not the orders involved are appealable orders. The documents specified by the defendants as necessary to present the questions involved on appeal were filed with the clerk of this court on September 10, 1915. On November 29, 1915, the plaintiffs, as appellees, appeared and moved to dismiss the appeal, because the orders appealed from are not final orders with

case.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

GOLDEN MARGUERITE SILVER & C. M. CO. v. NATIONAL C. M. CO. 207

the National Copper Mining Company, Limit- ty Com'rs, 16 Idaho, 32, 100 Pac. 106, 21 L. ed. From an order denying motion to tax costs, defendant appeals. Reversed and remanded, with directions.

John P. Gray, of Cœur d'Alene, and Therrett Towles, of Wallace, for appellant. A. G. Kerns, of Wallace, for respondent.

SULLIVAN, C. J. This is an action brought under the provisions of section 2326, Rev. Stats. of the U. S. (U. S. Comp. St. 1913, § 4623) in support of an adverse claim against an application for patent to certain mining ground. The appeal is from an order of the court taxing costs. The items of the memorandum of costs which the court allowed and from which order this appeal is taken, are as follows:

To filing fees paid the land office on filing protest and adverse claim..

To paid for certified copy of notice for the land office...

To paid for copy of articles of incorporation for the land office

To paid for abstract of title for land office

....

R. A. (N. S.) 199, 133 Am. St. Rep. 89, 17 Ann. Cas. 1226, Steensland v. Hess, 25 Idaho, 181, 136 Pac. 1124, and other authorities on the proposition that statutes allowing costs are penal and must be strictly construed, and appellant also contends that costs expended in the United States Land Office in support of an adverse claim under the provi. sions of said section 2326, Rev. Stats, of the U. S., cannot be recovered in a suit in the district court of this state.

Under the provisions of section 4912, Rev. Codes, the party in whose favor the judgment is rendered and who claims his costs must, within five days after the verdict or notice of the decision of the court or referee, file with the clerk, and serve upon the adverse party or his attorney, a copy of the $10.00 memorandum of the items of his costs and 1.50 necessary disbursements in the action or proceeding. This section of the statute, as well 2.50 as other sections, refers only to such costs 4.00 and disbursements as are occasioned in the

action or proceeding in the courts of this $18.00 state, and does not contemplate costs occasioned by proceedings in the United States Land Office.

The judgment was in favor of the adverse claimant, and awarded the area of conflict to the adverse claimant. After judgment was entered the adverse claimant, who is re spondent here, filed his memorandum of costs, and taxed, among other costs, the above set forth items. The allowance of said items of cost is assigned as error.

The contention of appellant is that the allowance of costs is a matter dependent wholly upon the statute, and where there is no statute authorizing it, no costs can be allowed, and cites in support of that contention Cronan v. District Court, 15 Idaho, 462, 98 Pac. 614, Schmelzel v. Board of Coun

We conclude, therefore, that the court erred in allowing the items of cost above mentioned, since they were all incurred on account of proceedings in the United States Land Office.

The order of the district court must therefore be reversed and the cause remanded, with instructions to sustain the motion and disallow the items of cost above mentioned amounting to $18. Costs are awarded to appellant.

BUDGE and MORGAN, JJ., concur.