Dowling v. Lancashire Ins. Co.

• Decision Date: 07 January 1896
• Citation: 92 Wis. 63,65 N.W. 738
• Parties: DOWLING ET AL. v. LANCASHIRE INS. CO.
• Court: Wisconsin Supreme Court

92 Wis. 63

65 N.W. 738

DOWLING ET AL.

v.LANCASHIRE INS. CO.

Supreme Court of Wisconsin.

Jan. 7, 1896.

Appeal from circuit court, Eau Claire county; Frank M. Fish, Judge.

Action by Thomas F. Dowling and another against the Lancashire Insurance Company. There was a judgment for plaintiffs, and defendant appeals. Affirmed.

This is an action upon a policy of insurance issued by the defendant to the plaintiff Dowling in the sum of $500, $250 of which was on his stock of wines, liquors, and merchandise, and $250 upon his furniture and fixtures, in a certain saloon in Eau Claire. The policy contained an indorsement thereon as follows, to wit: “Loss, if any, payable to P. J. Bowlin & Co., mortgagee, as their interest may appear,”--under which name, it appears, P. J. Bowlin conducted business. While the insurance was in force, namely, December 9, 1893, the said property was destroyed. in part, and damaged, by fire, and the total loss upon each subject of insurance exceeded the amount of the total insurance upon the property; the total concurrent insurance being $2,500, $1,250 of which was on the furniture and fixtures, and $1,250 upon the stock of wines, liquors, and saloon merchandise. The policy in suit was the Wisconsin standard policy, in use under chapter 195, Laws 1891. It appeared that there was a chattel mortgage on the insured property, for $300, to Ann Dowling, the existence of which was not noticed or indorsed upon the policy. On behalf of the plaintiffs, evidence was given tending to show that the plaintiff Dowling informed the defendant's agent fully of the existence of said mortgage, as well as the $1,000 mortgage to P. J. Bowlin & Co., at the time the policy was issued, but such evidence was objected to by the defendant. Evidence was given tending to show that proofs of loss were made and delivered to the defendant in due season, and also the amount of the plaintiffs' damages. The court instructed the jury that, if the plaintiff Dowling had stated to the defendant's agent fully the existence of these incumbrances, they would find in favor of the plaintiffs upon that issue, otherwise they would find for the defendant, and gave the jury appropriate instructions in respect to the question of damages. There was a verdict for the plaintiffs for $500, for which amount, with costs, judgment was given against the defendant, and from which the defendant appealed.Doolittle & Shoemaker and Van Dyke, Van Dyke & Carter, for appellant.

Geo. C. & Fred A. Teall, for respondents.

PINNEY, J. (after stating the facts).

The action is upon a “Wisconsin standard policy of fire insurance,” prepared, approved, and adopted by the insurance commissioner under chapter 195, Laws Wis. 1891, p. 224, which contains the condition that the policy shall be void “if the subject of insurance be personal property, or be or become encumbered by a chattel mortgage,” and also the stipulation that “no officer, agent or other representative of the company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto.” The only waiver relied on in respect to the chattel mortgage to Ann Dowling was by parol, and the question was whether, under such policy and the act under which it was adopted, such waiver was ineffectual, so that by the breach of the condition in relation to chattel mortgages the policy was rendered void. The circuit court having ruled that the parol waiver relied on was valid, the plaintiffs obtained a verdict; and it is contended in support of it that chapter 195, Laws 1891, is unconstitutional and void, as a delegation to the insurance commissioner of legislative power, which the constitution (article 4, § 1) declares “shall be vested in a senate and assembly,” and that such parol waiver was effectual and valid under the law as it existed before the passage of said act. That no part of the legislative power can be delegated by the legislature to any other department of the government,--executive or judicial,--is a fundamental principle in constitutional law, essential to the integrity and maintenance of the system of government established by the constitution. The difficulty experienced by courts in distinguishing between legislative power, which cannot be delegated, and discretionary powers of an executive or administrative character, which may be intrusted to other departments or officers, in the conduct of public affairs, has been frequently experienced and acknowledged; and it arises, in a great measure, from the fact that powers of the most important character, not essentially legislative, but which the legislature might properly, in the first instance, exercise or determine by its own judgment, are frequently devolved by the legislature upon other departments, officers, or bodies. In Moers v. City of Reading, 21 Pa. St. 202, it was said that “half the statutes on our books are in the alternative, depending upon the discretion of some person or persons, to whom is confided the duty of determining whether the occasion exists for executing them. But it cannot be said that the exercise of such discretion is the making of the law.” This must be understood, we think, as applicable only to cases where the discretion is not essentially a legislative one. In Blanding v. Burr, 13 Cal. 358, Field, J., said: “Such acts are constantly passed, and yet no one has ever questioned their validity as laws because dependent in their operation upon occasions which may never arise. * * * The legislature may determine absolutely what may be done, or it may authorize the same thing to be done upon the consent of third parties. It may command, or it may only permit; and in the latter case, as in the former, its acts have the efficacy of laws.” Where an act is clothed with all the forms of law, and is complete in and of itself, it may be provided that it shall become operative only upon some certain act or event, or, in like manner, that its operation shall be suspended; and the fact of such act or event, in either case, may be made to depend upon the ascertainment of it by some other department, body, or officer, which is essentially an administrative act. In all such cases it is upon the occurrence of the fact or event that the act becomes operative, or its suspension is accomplished. In Locke's Appeal, 72 Pa. St. 491, 498, it was declared that “to assert that a law is less than a law, because it is made to depend upon a future event or act, is to rob the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future, or impossible to know”; and it was said that the proper distinction is this: “The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action to depend.” And accordingly the time when the act shall take effect may be made to depend upon the majority of a popular vote being cast in its favor under a submission to the electors, for that purpose, provided in the act. State v. O'Neill, 24 Wis. 149;Smith v. City of Janesville, 26 Wis. 291. In considering the true test as to whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the law, Ranney, J., in Cincinnati, W. & Z. Ry. Co. v. Clinton Co. Com'rs, 1 Ohio. St. 88, said: “The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done. To the latter no valid objection can be...