On Motion for Rehearing.
Upon submission of this case the court was informed that appellant Globe & Rutgers Fire Insurance Company desired to file a brief. Permission to file brief was granted upon condition that it be filed not later than May 8, 1933. At such time no brief having been filed, the court proceeded to pass upon the questions presented in the brief filed by the Assistant Attorney General.
Our decision was announced on May 11th, and thereafter on the same date the briefs of the insurance company were filed. In view of these circumstances, we have decided to consider the additional questions presented in those briefs upon appellants’ motions for rehearing. ,
The insurance company presents in its brief *152a question of the sufficiency of the allegations in appellee’s petition.
The contention being made that the petition is insufficient, because it contains no allegation that petitioner has no other adequate remedy at law, and because there is no allegation that the property of the insurance company is being mismanaged or wasted.
We understand the rule to be that the facts alleged must be such as to show that there exists no other remedy as practical and efficient to the ends of justice, as the remedy in equity, that a mere allegation or conclusion of the pleader that he has no other adequate remedy will not suffice, and that, where the petition shows the plaintiff entitled to the equitable relief prayed for, he need not allege that he has no adequate remedy at law. Sumner v. Crawford, 91 Tex. 130, 41 S. W. 994; Dunn v. City of Austin, 77 Tex. 139, 11 S. W. 1125; Kampmann v. Stappenbeck (Tex. Civ. App.) 45 S.W.(2d) 761; Sullivan v. Bitter, 51 Tex. Civ. App. 604, 113 S. W. 193.
The cases cited by appellants do not, in our opiñion, sustain the proposition asserted.
In view of the facts here alleged, we cannot feel that it is such a case as would call for a showing that there was mismanagement or that the assets were being wasted.
Plaintiff alleged that the insurance company was in the hands of the superintendent of insurance of the state of New York; that it had suspended all payments; that the company had thousands of outstanding policies in Texas; that their claims far exceed the total amount of the bonds- theretofore executed by said company; and that, in order to obtain a fair and equitable distribution to all citizens of Texas holding claims against the company it was necessary to have a receiver appointed to collect the amount of the bonds and distribute it pro rata among all the policyholders.
These facts it seems to us clearly gave the trial court the right to appoint the receiver, and we cannot say that he abused his discretion in so doing.
The Attorney General in his motion for rehearing contends that we erred in holding that article 4691, specially limiting the right of the insurance commissioner to maintain actions for closing up the affairs or to enjoin, restrain, or interfere with the prosecution of the business of an insurance company organized under the laws of this state, would control over the general provisions of article 5068, that the provisions of the title on insurance were conditions upon which foreign corporations should be permitted to do business within the' state, and that such foreign corporations' engaged' in issuing contracts or policies in the state should be held to'have assented to such provisions.
He argues that in construing the statutes mentioned it was our duty to give effect to the intent or purpose of the Legislature, and that in holding as we did in the original opinion we failed in that duty.
Article 4691, reads:
“The Commissioner, for the purpose of examination authorized by law, has power either in person or by one or more examiners by him commissioned in writing:
“1. To require free access to all books and papers within this State of any insurance companies, or the agents thereof, doing business within this State.
“2. To summon and examine any person within this State, under oath, which he or any examiner may administer, relative to the affairs and conditions of any insurance company.
“3. To visit at its principal office, wherever situated, any insurance company doing business in this State, for the purpose of investigating its affairs and conditions, 'and shall revoke the certificate of authority of any such company in this State refusing to permit such examination. The reasonable expenses of all such examinations shall be paid by the company examined.
“4. 1-Ie may revoke or modify any certificate of authority issued by him when any conditions prescribed by law for granting it no longer exist.
“5. He shall also have power to institute suits and prosecutions, either by the Attorney General or such other attorneys as the Attorney General may designate, for any violation of the law of this State relating to insurance. No action shall be brought or maintained by any person other than the Commissioner for closing up the affairs or to enjoin, restrain or interfere with the prosecution of the business of any such insurance company organized under the laws of this State.”
It clearly appears that the purpose of this statute was to set forth certain powers of the commissioner in the discharge of his duties. In some of the provisions his powers are made to apply to all insurance companies doing business in Texas, but in the latter part of the last section he is given exclusive power to take certain steps as to domestic insurance companies.
Under the familiar rule of construction that the specification of one particular class excludes all other classes, it follows that the commissioner would not have the exclusive power in the case of foreign companies. And we fail to see how the provisions of article 5068, above stated, could be used to extend to the commissioner the exclusive power in case óf foreign corporations wlien' the Legislature has specifically limited his powers in such matters to domestic corporations;
*153Nor do we agree that the policy of the state relative to the winding up of the affairs of banking and other corporations can be said to control where the Legislature has specifically limited the exclusive power of the commissioner.
The motions are overruled.