explaining that judicial review under section 536.150 “is broader in scope than that required by the constitutional provision … for cases in which a hearing is required by law in the agency, being in effect a hearing de novo”
How later courts described this case
- explaining that judicial review under section 536.150 “is broader in scope than that required by the constitutional provision … for cases in which a hearing is required by law in the agency, being in effect a hearing de novo”
- interpreting § 536.105, the precursor of the current statute, § 536.150
- case is contested where hearing is required of which a record must be made unless waived
Written by the judges who cited it.
The opinion
On Motion for Rehearing or for Modification.
PER CURIAM.
Respondent has filed a motion for rehearing or for modification of the opinion herein. However, it is not contended that the opinion is wrong in holding that review must be under Sec. 536.105. (Statutory references are to RSMo and V.A.M.S.) Therefore, there is no occasion for a 1⅛ hearing; but we will consider respondent’s contentions concerning modification.
The first is to modify the statement that after our decisions in the Barker and Jacobs cases ( 295 S.W.2d 825 and 295 S.W.2d 836 ) “plaintiffs filed a claim for their fees with the superintendent, etc.” It is urged that this should be modified to state that in 1936 and repeatedly and continuously thereafter plaintiffs made claims for their fees and to show in detail what requests they made for action by the superintendent. While these facts may be material on review of the superintendent’s denial of plaintiffs’ claims, and may be shown by evidence in such a proceeding, they are wholly immaterial to the issue of respondent’s jurisdiction in this case and this request for modification is denied.
The second request for modification concerns the statements that “undoubtedly, it is intended that the Superintendent shall have discretion as to the use of these authorized methods, which plaintiffs apparently recognized by asking him to do one or the other”; and that “plaintiffs recognize the authority and discretion of the Superintendent to assess the companies under either Sec. 374.220 or 374.260.” Plaintiffs say they claim that the superintendent has no discretion to apply either Sec. 374.220 or Sec. 374.260 but that “the superintendent and the reviewing courts would have to find the facts about the services rendered by claimants and determine as a matter of law whether the expenses thereof were 'proceedings against insurance companies’ or paid as usual expenses of the department chargeable to all companies doing business in the State.” Plaintiffs say that is what paragraph (d) of their requests (set out in our opinion) means. Apparently, we should have said that plaintiffs recognize the authority of the superintendent to make a decision as to which statutory method to apply in payment of claims and not imply that plaintiffs recognize he had discretion to apply either statutory method regardless of the facts; *364 and the opinion is to that extent modified. However, we have not decided and do not decide anything on the merits of plaintiffs’ claims or the method by which they may be paid. Neither have we decided nor do we decide the matter of discretion of the superintendent as to the use of either method for payment of claims (374.220 or 374.-260) and all parties are free to make any contentions they desire as to any of these matters before the proper reviewing court.
The third and last request for modification is to eliminate the statement that ■“plaintiffs’ claims, at least at this stage, are claims against the state.” They say: ■“Plaintiffs claims are against either the insurance companies proceeded against and found guilty of violating the 10% rate reduction order of Superintendent Hyde; or all of the insurance companies, depending on whether such expense is found to be expenses of proceedings against companies or expenses of the Division of Insurance. It is a derivative claim in which the Superintendent acts quasi judicially as the determining and assessing officer, subject to judicial review under Sec. 536.105.” Plaintiffs cite State of Missouri v. Homesteaders Life Ass’n, 8 Cir., 90 F.2d 543, 548 , which held that the superintendent of insurance was “an entity distinct from the state with power to sue and be sued”; and therefore a suit by the superintendent was not a suit by the state. (Sec. 3, art. V, Const. also recognizes the difference between a suit by the state and a suit by a state officer.)
What we meant was (as we think the context shows) that plaintiffs’ claims are against the state, in the sense that they are at least claims against a state agency authorized by the state to employ them, even though the legislature has provided a method by which the money to pay them (and other claims for operation of the division of insurance) can be collected from sources other than general taxation. If either of the methods, which plaintiffs say might be proper, should be adopted, it seems that the insurance code has provided for state action (through the superintendent, Sec. 374.240 or the collector of revenue, Sec. 374.220, subd. 2), and not action by claimants, to enforce payment of the necessary funds by those against whom any assessment is made. We have even suggested in Aetna Insurance Co. v. O’Malley, 343 Mo. 1232 , 124 S.W.2d 1164, 1168 , that a third method of payment of plaintiffs’ claims would be proper, namely: “by an appropriation by the legislature”, saying therein “respondents (plaintiffs) must look to the legislature for the payment of their fees.” It is shown in the record herein that plaintiffs have sought to collect fees by this method. Surely it would not be proper for the legislature to appropriate money to pay claims which had no basis as claims properly authorized for state governmental purposes. (See Sec. 38 [a], art. III, Const., prohibiting grant of public money to private persons; and Sec. 39 [4], art. III, prohibiting payment of any claim “under any agreement or contract made without express authority of law.”) Plaintiffs’ claim is based on a contract authorized by Sec. 374.120 to be made by the superintendent with the approval of the Governor, under which we held in the Aetna case, supra (124 S.W.2d, loc. cit. 1167) “that the superintendent did have a right to employ respondents (plaintiffs) in the restitution proceedings”; also pointing out that “before a state officer can enter into a valid contract he must be given that power either by the Constitution or by the statutes”; and that “such power must be exercised in manner and form as directed by the Legislature.” However, our criticized statement was made arguendo as a matter of illustration, and we are willing to leave its final authoritative determination to the reviewing court where it can be more fully briefed and presented.
Respondent’s motion is overruled and our opinion modified on the court’s own motion to the extent herein indicated.