Barnes v. People ex rel. Moloney

• Decision Date: 01 November 1897
• Citation: 168 Ill. 425,48 N.E. 91
• Parties: BARNES v. PEOPLE ex rel. MOLONEY.
• Court: Illinois Supreme Court

168 Ill. 425

48 N.E. 91

BARNES

v.PEOPLE ex rel. MOLONEY.

Supreme Court of Illinois.

Nov. 1, 1897.

Appeal from circuit court, Cook county; R. W. Clifford, Judge.

Action by the people, on the relation of Maurice T. Moloney, attorney general, against John A. Barnes. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.Myron H. Beach, for appellant.

E. C. Akin, Atty. Gen. (T. J. Scofield, of counsel), for appellee.

CARTWRIGHT, J.

The people of the state of Illinois brought this suit in debt against John A. Barnes, to recover the penalty prescribed by the ninth clause of section 22 of the act entitled ‘An act to incorporate and govern fire, marine and inland navigation insurance companies doing businessin the state of Illinois,’ in force March 11, 1869 (Hurd's Rev. St. p. 880). The declaration contains eight counts, in each of which it is alleged that the defendant acted as the agent of certain persons named therein, who were citizens of the United States and of the state of New York, and resided in the state of New York, and were then engaged in insuring property against loss by fire, by issuing to the owners thereof policies of insurance, and that defendant, as such agent, solicited insurance and delivered the policies set out in the count, and collected the premiums therefor, without having procured from the auditor of public accounts, or insurance superintendent of the state of Illinois, a certificate of authority, stating that the makers of said policies had complied with the requisitions of said act. The policies set out in the several counts were made by persons engaged in the business of underwriters, each of whom was individually liable for a separate amount placed after his name, but not for the whole or any part of another underwriter's liability, yet all acted together to effect insurance. In such cases the underwriters act through one person, who is the agent of each of them, and policies of this kind are called ‘Lloyds Insurance.’ The underwriters in these policies were denominated, ‘Underwriters at New York Central Lloyds,’ ‘Lafayette Fire Lloyds,’ ‘Tradesmen's Fire Lloyds,’ and ‘Traders' Fire Lloyds of New York.’ A demurrer, which was both general and special, was interposed to the declaration, and overruled. The defendant electing to stand by his demurrer, and refusing to plead further, the court rendered judgment against him for the penalty of $500.

The question to be determined is whether or not an individual acting as agent for a number of citizens of the state of New York, not a partnership, and not incorporated, who have not complied with the requirements of the act under which this suit was brought, and where the agent has not procured from the auditor of public accounts or insurance superintendent a certificate of authority, stating that such individuals have complied with such requisitions, is liable to the penalty provided by said act. The title of the act, showing its subject and scope, has already been given. The act provides for the formation of corporations to insure property in this state, fixes their minimum capital, and brings all insurance companies previously organized under its provisions, except as to the amount of their capital, the investment of such capital, and their assets, and the privileges and powers granted by their charters. It provides for the organization of corporations of two kinds, viz. joint-stock companies and companies organized on the mutual plan; and the auditor has no power, under the laws of this state, to issue a license to a company of a different character. Insurance Co. v. Swigert, 120 Ill. 36, 11 N. E. 410. It declares that all companies incorporated or extended under it shall be deemed and taken to be bodies corporate and politic, in fact and in name, and shall be subject to all the provisions of law in relation to corporations, so far as the same are applicable. It requires an annual statement under oath of the amount of capital or stock actually paid in, the property or assets held by the company, the liability of the company, its income during the preceding year, and its expenditures during the same time. The twenty-second section fixes the conditions upon which foreign insurance companies may take risks or transact the business of insurance in this state; and it is therein provided that it shall not be lawful for any insurance company, association, or partnership incorporated by or organized under the laws of any other state of the United States or any foreign government, for any of the purposes specified in the act, to transact any insurance business in this state, except upon the condition therein fixed. The amount of capital must be equal to that required of similar companies formed under the act. The company must first appoint an attorney in this state, on whom processof law can be served. A copy of the charter or deed of settlement of the company must be filed. A statement, under the oath of the president or vice president and secretary of the company, showing its financial condition, must be filed. If the company is incorporated by, or organized under, any foreign government, it must deposit $200,000. And in all cases a certificate of authority must be procured from the auditor, stating that the company has complied with all the requisitions of the act which apply to said companies, and giving the name of the attorney appointed to act for the company. The provisions of the act, unless in one instance, relate only to insurance companies, and not to an individual engaging in that business. And in People v. Fesler, 145 Ill. 150, 34 N. E. 146, it was said that the provisions of section 22 were aimed against foreign...