Henderson v. London & L. Ins. Co.

• Decision Date: 16 June 1893
• Citation: 135 Ind. 23,34 N.E. 565
• Parties: HENDERSON, State Auditor, v. LONDON & L. INS. CO.
• Court: Indiana Supreme Court

135 Ind. 23

34 N.E. 565

HENDERSON, State Auditor,

v.LONDON & L. INS. CO.

Supreme Court of Indiana.

June 16, 1893.

Appeal from superior court, Marion county; P. W. Bartholomew, Judge.

Action by the London & Lancashire Insurance Company to enjoin John O. Henderson, as state auditor, from revoking plaintiff's license as a foreign insurance company to do business within the state. From a judgment of the superior court at general term affirming a judgment of the special term overruling defendant's demurrer to the petition, defendant appeals. Affirmed.

A. G. Smith, Atty. Gen., Finch & Finch, and Duncan & Smith, for appellant. John W. Kern and Thos. Bates, for appellee.

HACKNEY, J.

The appellee brought this action in the lower court to enjoin the appellant, as auditor of state, from revoking or attempting to revoke the license or authority of the appellee as a foreign insurance company to do business in the state of Indiana. The petition alleged that the appellee was, and for a number of years had been, engaged in business in the counties of this state; that since the 3d day of March, 1877, it had fully complied with the act of the general assembly in force from that date, (Rev. St. 1881, § 3765,) alleging in detail the steps taken in compliance with said act, and in otherwise obeying the laws of the state relating to the transaction of its business in this state; that it now holds, and ever since the 3d day of March, 1877, it has held, proper certificates of authority from said auditor to transact business in the various counties of this state as a foreign insurance company; that said auditor is threatening to, and will, if not restrained, revoke the authority so held by said company, said auditor therein acting under the act of the general assembly approved March 9, 1891, for the creation of a firemen's pension fund, etc. Acts 1891, p. 415. It is not alleged that said company complied with, or attempted to comply with, said act of March 9, 1891, in reporting its business done in Marion county, but it is alleged that said act is, as to foreign insurance companies, unconstitutional, and confers no legal power to revoke the authority of such companies to transact business within this state. The superior court in special term overruled the appellant's demurrer to the petition, and upon exception to said ruling the judgment was affirmed by said court in general term. The error assigned in this court is said ruling of the superior court in general term.

The title and first three sections of the act of March 9, 1891, the act the constitutionality of which is here questioned, are as follows: “An act to create a firemen's pension fund, for the pensioning of disabled firemen and the widows and dependentchildren, mothers, and fathers of deceased firemen, to create a board of trustees of such fund, to authorize the retirement from service of disabled members and of all members after a service of twenty-five years, and pensioning of such members, and for other purposes in connection therewith in cities in this state having paid fire departments, and declaring an emergency. Section 1 Be it enacted by the general assembly of the state of Indiana, that every fire insurance company doing business in this state, and not organized under the laws of this state, shall, in the months of January and July of each year, report to the auditor of each county in the state wherein there is a city having a fire department paid by said city, under oath of the president and secretary of such company, the gross amount of all receipts received by such company on account of insurance premiums for insurance upon property in said county for the six months preceding the last day of the last preceding December and June, and of the losses actually paid during the same period, and shall at the time of making such report pay into the county treasury of such county one dollar on every one hundred dollars of the excess of said receipts over and above said losses. Any fire insurance company which shall fail or refuse to render an accurate account of its receipts and losses as herein provided, or to pay the required tax thereon into the county treasury, shall forfeit, for the benefit of said fund in said county, one hundred dollars for each day such report or payment shall be delayed, to be recovered in an action in the name of the state of Indiana on the relation of the auditor of said county in any court of competent jurisdiction; and in case of such failure or refusal of any such fire insurance company to make report or payment as herein provided it shall be the duty of such county auditor, within ten days thereafter, to report such failure and refusal to the auditor of state, who shall, upon the receipt of such notice, forth with revoke all authority or license heretofore granted to such defaulting insurance company to do business in this state, and no further authority or license to do business in this state shall be granted or issued to such insurance company until the county auditor aforesaid shall have certified to the auditor of state that such insurance company has fully complied with the provisions of this act. Sec. 2. Any county auditor knowing that any fire insurance company is doing business in any city in said county having a fire department paid by said city, contrary to the provisions of this act, who shall fail for ten days after knowledge thereof to report such fact to the auditor of state, shall forfeit and pay for the firemen's pension fund in said county, for each day's failure after the expiration of said ten days, the sum of twenty-five dollars, to be recovered in an action brought in any court of competent jurisdiction by the board of trustees of the fire department of such city. And if the auditor of state, after receiving notice from the county auditor of any county that any fire insurance company is doing business in such county contrary to the provisions of this act, shall fail or refuse forthwith to revoke the authority or license of such company to do business in this state, such auditor of state shall forfeit and pay for the benefit of the firemen's pension fund in said county the sum of fifty dollars for each day's failure, the same to be recovered in an action brought by said county auditor in any court of competent jurisdiction in Marion county. Sec. 3. The sum so paid into the county treasury of each county, as provided in section 1 of this act, shall be set apart and designated as a ‘Firemen's Pension Fund,’ and the same shall be held and disbursed for the purpose and objects and in the manner provided for in this act.” The remaining sections of the act provide for the election, service, and duties of trustees for such pension fund, the manner of distributing and controlling such fund by such trustees, and that the act shall not be so construed as to affect existing legislation requiring insurance companies to pay taxes into the treasury of the state.

The first objection to the act is that it violates section 19, art. 4, of the state constitution, which is as follows: “Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” It is important to ascertain the full scope and meaning of this provision of the constitution, and, as has often been said by this court, one obvious purpose was to limit an act to one subject and matters properly connected therewith; another purpose was that such subject, not the matters connected therewith, should be expressed in the title; and still another purpose was to limit the invalidity, by reason of any failure to so express the subject in the title, to so much of the subject as might not be so expressed. But can we say that these were the only purposes? In Grubbs v. State, 24 Ind. 295, it was declared that the provision was designed to prevent mischiefs in legislation which had prevailed before its adoption. Said Justice Frazer: “One of them was stated to be the enactment of laws under false and delusive titles, whereby measures had procured the support of legislators who were thus deceived as to the character of the laws; and another was deemed to be the conjunction in one act of two or more subjects, having no legal connection, for the purpose of procuring the passage of laws which might not alone command legislative sanction upon the strength of popular measures embraced in the same act.” Judge Cooley, in his work on Constitutional Limitation, (page 172,) in speaking of the purpose of this provision in the constitutions of the states, says: “It may be assumed that the purpose of these provisions was-First, to prevent hodgepodge or ‘logrolling’ legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked, and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have an opportunity of being heard thereon, by petition or otherwise, if they shall so desire.” See, also, In re Borough of Phœnixville, 109 Pa. St. 44. At a time when the constitution was fresh from the hands of its framers, this court held that one of the objects of this provision was to promote the codification of the enactments of the legislature. Railway Co. v. Potts, 7 Ind. 681. We could multiply the desired ends and laudable objects of this provision as expressed by the courts, but we deem those already stated as sufficient for the proper determination of the question under consideration. Counsel for the parties have cited many cases where acts covering...