135 N.W. 365 (Neb. 1912), 16,559, State v. American Surety Company

Docket Nº:16,559
Citation:135 N.W. 365, 91 Neb. 22
Opinion Judge:LETTON, J.
Judge Panel:LETTON, J. REESE, C. J., not sitting.
Case Date:March 12, 1912
Court:Supreme Court of Nebraska

Page 365

135 N.W. 365 (Neb. 1912)

91 Neb. 22




No. 16,559

Supreme Court of Nebraska

March 12, 1912

REHEARING of case reported in 90 Neb. 154. Former judgment vacated, and judgment of district court reversed.


LETTON, J. REESE, C. J., not sitting.


[91 Neb. 23] LETTON, J.

The former opinion in this case is reported in 90 Neb. 154. The principal contention now made by the attorney general on rehearing is that the provisions of chapter 79, laws 1897, commonly known as the "Gondring act," when considered in connection with the provisions of chapter 162, laws 1905, commonly known as the "Junkin act," made it the duty of the defendant to file the statements and undertakings required by section 4 of the latter act; that these statutes must be considered and construed together, and that, since a combination to prevent competition in insurance is within the definition of a "trust" by the terms of the former act, it was the intention of the [91 Neb. 24] legislature to protect trade from such an unlawful restraint on competition by the latter act, and, consequently,

Page 366

that a foreign insurance company is among those corporations required to make report thereunder.

The defendant insists that the Junkin act is by its title restricted to "trade and commerce;" that insurance does not fall in either of these classes; that insurance is a distinct and separate subject of legislation; that since 1905 the state has not required such reports to be filed and that its right to the same, if one ever existed, has been waived, and it is now estopped to insist upon it; that section 4 is in violation of the constitution; that the penalties imposed by the act are not for failure to file the statements required by section 4; and that if insurance is held to be commerce the act is an attempted regulation of interstate commerce, and therefore void.

At the outset of the discussion it is proper to say that we agree with the defendant that the requirements of section 4 can only apply to such persons or corporations as may reasonably be considered as being embraced within the title of the Junkin act. We adhere to the view expressed in the former opinion that generally the words "trade and commerce" would not include the business of insurance, but we have no doubt that it is within the power of the legislature within reasonable limitations to include within the concept and definition of a term ideas which may not unreasonably be included therein, though perhaps not strictly within its ordinary definition. The line of demarcation between the ideas expressed by the words "trade and business" and "trade and commerce" is somewhat hard to draw, and the legislature may without violence to any constitutional limitations and with propriety embrace within the definition of one term or the other transactions which may lie close to the border line. Statutory definition often relieves the court of questions otherwise hard to solve when endeavoring to ascertain the meaning of the legislature, and is a practice which is to be commended if exercised within proper limitations. [91 Neb. 25] As was said in In re Pinkney, 47 Kan. 89, 27 P. 179, which was quoted in the former opinion: "While the legislature cannot extend the scope of the title by giving to a word therein a definition which is unnatural and unwarranted by usage, still, if the word admits of the construction given to it by the legislature, and can be properly used in a sense broad enough to include the provisions of the act, the intention of the legislature is entitled to great weight in determining the sufficiency of the title."

Was it the intention of the legislature that the prevention of competition in insurance...

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