Appeal
from city court of Montgomery; Thomas M. Arrington, Judge.
Petition
by Russell H. Hoadley and others for a writ of mandamus to
compel John Purifoy, state auditor, to issue to plaintiffs a
license to do insurance business in the state. From an order
sustaining a demurrer to the petition, plaintiffs appeal.
Affirmed.
The
appellants are all citizens of New York, doing the business
of underwriters under the style of the South & North American
Lloyds of the City of New York. On the 14th day of January
1895, and again about the 10th day of March, 1895, they
applied to the Honorable John Purifoy, auditor of the state
of Alabama, for a license to transact the business of fire
inland, and marine insurance in this state. On each occasion
they tendered him the sum of $100, and all lawful fees, and
filed with him at the same time a written instrument, as
required by section 1201 of the Code, appointing an agent for
the service of process, and also two sworn statements showing
their assets, condition, etc. The appellants, not being a
corporation, did not file any "certified copy of the
charter," but they did file a statement (Exhibit A)
showing how the petitioners were organized or constituted.
These several statements were verified by an agent or
attorney, petitioners having no president, etc.; and, of
course, they do not disclose any "capital stock,"
"president," etc. As appellants' property is
all in cash, the statements do not show the "location
and value of real estate, or amounts secured by bonds and
mortgages," nor "bonds of this state nor of the
United States," etc. This sworn statement, however
shows: Cash deposited with the Bank of North America
$91,616.40, and gross premiums in process of collection
$58,474.72; making an aggregate amount of all the assets of
the company, stated at their actual value, of $160,091.12.
The same statement shows: Liabilities, $31,625; or a cash
capital of $128,466, after paying all outstanding
claims,-"the absolute property of the underwriters, free
and clear of any lien or claims thereon." These
statements show that the receipts of appellants for the past
year were $439,064, and the total expenses and disbursements
for the same period $271,576.01. The statement which was
marked "Exhibit A" to the petition, showing how the
petitioners were organized and constituted, was as follows:
"The
South and North American Lloyds of the City of New York.
Whipple and Company, Attorneys. Know all men by these
presents, that we, the undersigned, each for himself, and not
one for the other, have made, constituted, and appointed, and
do by these presents make, constitute, and appoint, Joseph L
Parraga and David F. Casey, of the city of New York,
composing the firm of Whipple & Co. or either of them, our
true and lawful attorneys, for us, and in our names, place,
and stead, to insure any and every description of property
and buildings, and any interest therein, wherever situated,
and on hulls, cargoes, and freights, against loss and damage
by fire and marine, upon such terms and at such rates of
premium as shall be fixed by our said attorneys, and for this
purpose to receive applications for insurance or reinsurance,
and to make the same binding upon us, and to make and issue
to any person or persons, firm or firms, corporation or
corporations, the proper policy or policies of reinsurance,
containing all such terms, clauses, and conditions,
warranties and agreements, as our said attorneys shall deem
meet, and to subscribe such policies with our names, and the
amount insured by us thereon. The policies so issued shall be
called the 'Policies of the South and North Lloyds of the
City of New York,' and shall be issued in the said city.
The said attorneys have power to change or modify the terms
of any such policies issued by them, and to annul and cancel
the same, and also, at any time, in their discretion, to
reinsure any and all risks so taken and insured by us, and in
such manner and form, and with such companies or
underwriters, as shall be deemed by them most advantageous.
All policies so issued upon any one risk, for each of us,
respectively, by the said attorneys, shall be for an amount
not exceeding the sum of one thousand dollars upon any one
risk at any one time. The said attorneys have power to retain
in their hands all premiums received by them for each of us,
respectively, subject to the control of the finance
committee. This power of attorney can only be canceled on the
expiration of three years from the date of the first policy
issued, unless by the mutual consent of the principal and the
said attorneys. The said attorneys have power to adjust and
pay out of any moneys or things of value in their hands,
belonging to us, any loss or average that may happen under
any policy so to be issued by us, and any claim or demand
whatsoever which shall arise or accrue to any person or party
by, from, or under any policy or agreement which shall be
entered into by our said attorneys, in our name or on our
account, in pursuance hereof, and, upon such terms and in
such manner as they shall deem best, to compound, compromise,
and settle any and every such loss, average, claim, and
demand whatsoever. And in case of suit being brought, or any
proceeding at law or in equity being taken, upon any such
policy or agreement, against us, to appear for us, and in our
names, to defend the same, and to compromise, adjust, and
settle any and all such suits and proceedings. And in the
event of any such suit or proceedings being brought or
commenced against any other of the persons for whom they so
act as attorneys, upon any policy or agreement which shall
have been likewise subscribed or entered into by us in virtue
hereof, to make and enter into such admissions, agreements,
or arrangements with respect to our liabilities thereon, with
the parties bringing such suit or proceedings, as shall, in
their judgment, be expedient, with a view to preventing a
multiplicity of suits and costs. And also to commence and
prosecute any and all such proceedings at law and in equity
as may, within the judgment of our said attorneys, be
necessary and proper for the purpose of collecting and
realizing any and all sums of money which may become due to
us, for premiums or otherwise, on account of any insurance,
agreement, or policy made or entered into by us, by virtue
hereof, or for the protection, establishment, or enforcement
of any and all our rights in the premises, and, in their
discretion, to compound, compromise, settle, withdraw, and
discontinue the same. And also to do and perform for us, and
in our names, every other act and thing in relation to any
insurance or policy made by them by virtue hereof; hereby
giving and granting unto our said attorneys full power and
authority to do all and every needful and proper act and
thing, and in and about the premises above specified, which
we could do personally, and ratifying all that they may
lawfully do, or cause to be done, by virtue hereof: Provided,
always, and the power and authority hereby given and granted
to our said attorneys are upon this express condition, that
in no event or contingency shall the liability of any
underwriter exceed the amount of the subscription by such
underwriter on any one risk, and in no event or contingency
shall any underwriter be liable for any part of the sum
subscribed by any other underwriter, or which shall make us
liable or affect us any otherwise than by a several and
individual liability, or the amount insured or subscribed by
us or in our names. The cost of office rent, printing,
stationery, and other incidental expenses, postages, and
commissions, shall be covered and paid by the said attorneys;
they receiving in payment in lieu thereof 25% commissions on
the amount of premiums received, the costs and expenses of
litigation excepted. And, in consideration of the premises,
we do hereby covenant and agree, to and with the said
attorneys, and each of them, and to and with each and every
person and party to whom any policy of insurance shall be
issued in our name by virtue of this power, or with whom any
other agreement shall be made and entered into by our said
attorneys in our name by virtue of the power and authority
hereby granted, that we will, in all things, fully and
faithfully carry out, execute, and fulfill the same, and do
and perform everything to which our said attorneys shall by
virtue hereof bind us, and pay or cause to be paid over to
them, the said attorneys, on demand, any sum or sums of money
that may be due by each of us, respectively, upon claims for
losses incurred at any time over and above the provisions
made herein; having this day, each of us, for himself only,...
