(Dissenting).
It is with regret that I find myself in disagreement with the opinion of Mr. Justice Stakes.
I have no quarrel with the cited law in his opinion, but my quarrel is with the application of such law to the facts of this case where The Independent Fife and Accident Insurance Company, a Florida corporation, and which will for convenience be hereinafter referred to as “Florida Company,” was licensed to do business in this State on July 30, 1947, notwithstanding the fact that Independent Insurance Company, a South Carolina corporation, which will likewise hereinafter be referred to as “South Carolina Company,” was then licensed to do business in this State, and had been continuously so licensed since the year 1930; and the further fact that the Act of 1944 was in full force and effect, and reading as follows:
“That no foreign insurance corporation shall be domesticated or licensed to do business in South Carolina when the name thereof is identical with that of any active insurance *37corporation previously domesticated, licensed or chartered to do business in the State and which has engaged in business therein for one year or more, nor shall any such insurance corporation be domesticated or licensed to do business in said State when the name thereof is so nearly similar to any such said corporation as to lead to confusion and uncertainty; Provided however that nothing herein contained shall apply to foreign insurance corporations now domesticated and licensed in this State.”
In 1947, as stated in the opinion of Mr. Justice Stukes, the legislature enacted an extensive Insurance Code, Section 108 of this Act being identical with the 1944 Act with the exception that the 1947 Act also explicitly requires the Insurance Commissioner, before granting a certificate of authority to do business in this State to any company, to be satisfied by proper evidence that such applicant for license is duly qualified to do business under the laws of this State ; that it is safe and solvent; that its dealings are fair and equitable and that it conducts its business in a manner not contrary to the public interests. This is followed by the same proviso as in the 1944 Act.
Both the 1944 Act and the applicable Section of the 1947 Act are set out in full in the prevailing opinion, the portion of the 1947 Act setting out in detail the duty of the Insurance Commissioner as above outlined being shown in parenthesis, since such portion thereof has no applicability to the situation here. It was, of course, the duty of the Insurance Commissioner to make such investigation of an insurance company seeking to do business in this State prior to the 1947 Act.
There can be no question but that it was the duty of the Insurance Commissioner, before granting a license to the Florida Company to do business in this State, to search his records and ascertain if the name of the Florida Company was so nearly similar to that of any other insurance company then licensed as to lead to confusion and uncertainty, but this he failed to do, and by reason of such failure on *38his part to check his records the Florida Company was licensed. In refusing to relicense the Florida Company (as a practical matter, revoking its license to do business in this State) the Insurance Commissioner stated in his order: “The record does not disclose that when the applicant company first applied to do business in South Carolina any opportunity was given the objector company to object to the issuance of its license, and, as a matter of fact, the applicant company’s license was issued by the undersigned without notice to the objector company or any other company, due to the fact that the undersigned overlooked the fact that the objector company was doing business in South Carolina.”
The Florida Company was equally negligent in obtaining a license to do business in this State under its corporate name because the 1944 statute was then in full force and effect and therefore it had notice that it was not entitled to, and could not be lawfully licensed in that name in this State. A search on its part of the records of the Insurance Commissioner would have disclosed that the South Carolina Company (under a similar name) was then licensed and doing business in this State.
It appears to me that the only fact in this case which can make difficult the decision arises from the failure of the Insurance Commissioner to forthwith and prior to the effective date, October 1, 1947, of the 1947 Act, revoke the license which he had issued to the Florida company. Instead, and in order to give the last mentioned company an opportunity to be heard, he did not set a hearing until March 8, 1948, at which time the Florida company appeared specially and took the position that the Insurance Commissioner had no jurisdiction, having theretofore granted it a license to do business ; that he was precluded by the 1947 Act from inquiring into the effect of the similarity of the names of the insurance companies involved, and was without authority to then pass upon the question whether the two insurance companies’ names were so nearly similar as to lead to confusion and uncertainty, and that it was only when the license was first *39applied for that he had such a right. The objections cover a wider field than stated above, and also refer to the fact that the notice from the Insurance Commissioner was of a hearing to be held to determine whether the license of the Florida company would be renewed on April 1, 1948. But it is clear that the Florida company was fully advised that the hearing was to determine whether it had been lawfully licensed in 1947, and whether there should, in effect, be a revocation of such license.
In the proviso in both the 1944 and 1947 Acts it was undoubtedly the intent of the legislature to protect insurance companies which had theretofore been lawfully licensed, and not to validate the licensing of a company which had been unlawfully licensed, due to an error, or negligence on the part of the Insurance Commissioner, especially when such company had at least constructive knowledge of its situation.
When the objections of the Florida company to the hearing were overruled, it refused to participate therein, and withdrew. The Insurance Commissioner, after hearing the testimony on behalf of the South Carolina company, issued his order refusing to renew the license of the Florida company to do business in this State, which, as aforestated, for all practical purposes, amounted to a revocation of its license. In the order of the Insurance Commissioner, dated March 24, 1948, it is stated:
“■* * * the record shows numerous instances where mail directed to the applicant company was received by the objector company; instances where mail directed to the applicant company’s branch offices in South Carolina, by the applicant company’s Home Office in Florida was directed not by that company’s full name, the Independent Life and Accident Company, but as Independent Insurance Company, and that some of those letters were actually received by the objector company. In many instances ordinary letters were addressed to the applicant company under name of Independent Insurance Company, other instances where it was *40addressed to the applicant company not by its correct name but as Independent Life Insurance Company or Independent Insurance Company, Greenville, South Carolina, without any street or. other address and that numerous letters so addressed were actually received by Independence Insurance Company, Greenville, S. C. the objector in this hearing.-
“The record further shows that the average South Carolina policyholders of both companies are people of .limited education, and much confusion has resulted because of the similarity of names. Both the objector company, Independence Insurance Company, and the applicant company, The Independent Life and Accident Insurance Company, do business in South Carolina, and there is detailed in the record numerous instances where money orders payable to the Independence Insurance Company were actually made out to Ind. Insurance Company, Independence Insurance Company, Indep. Insurance Company, and Indept. Life Insurance Company, which, in itself, shows that many people, who do business with the Independence Insurance Company actually call that company the Independent Insurance Company, which name easily fits the applicant company.” His statement of the evidence and his conclusion thereabout is fully supported by the record.
If the names of the companies are so similar as to be confusing to the average man, this ought to be the test. I am also of opinion that the merits of the case are incidentally, but effectively before the Court.
. To an extent repeating, it is my opinion that it was the intent of the legislature to protect insurance companies and the public in both the Acts, 1944 and 1947, where they had been regularly and lawfully licensed to do business in this State notwithstanding the similarity of names, but it was never the intent of the legislature in the passage of the 1947 Act to- validate an unlawful licensing. The Florida company should not be permitted to take advantage of a privilege it acquired through an oversight, or by reason of the negligence *41of the Insurance Commissioner, especially in the teeth of the Act of 1944, of which Act it had constructive knowledge.
The position is taken that having issued the Florida company license, the Insurance Commissioner had no lawful authority under the statute to inquire into the matter of whether the license previously granted was lawfully issued, and hence whether it should be renewed or revoked. It is clear to me that even without direct statutory authority the Commissioner would necessarily have this power by implication ; in other words, in the order which he actually passed he made at least a quasi-judicial determination of the matter, and in such circumstances a writ of certiorari would normally be issuable under the well settled rule that when an inferior tribunal or commission acts in a judicial or quasi-judicial capacity, the Court may, on a writ of certiorari, review its findings, particularly with reference to matters of law. The Commissioner, of course, ordinarily acts in an administrative capacity, but he also necessarily sometimes performs judicial or quasi-judicial acts.
However, it seems to me that Section 7952 of the 1948 Code Supplement specifically provides that any order or decision made, issued or executed by the Insurance Commissioner shall be subject to review in the South Carolina Circuit Courts on petition filed within' thirty days, etc. And this Section provides in considerable detail as to- how such an appeal should be handled. An examination of the transcript of record clearly demonstrates that this Section was practically complied with in the matter before us and that this should settle this position adversely to the Florida company.
Sufficient facts are now before the Court for us to intelligently pass upon the merits of the issues in this case, and I can see no reason for reversing the ultimate holding of the Circuit Court, and compelling the South Carolina company to commence anew an action in a Court of Equity for the relief sought.
For the foregoing reasons, I respectfully dissent from the prevailing opinion.