State ex rel. Atlantic Horse Ins. Co. v. Blake

• Decision Date: 09 February 1912
• Parties: THE STATE ex rel. ATLANTIC HORSE INSURANCE COMPANY v. FRANK BLAKE, Superintendent of Insurance
• Court: Missouri Supreme Court

144 S.W. 1094

241 Mo. 100

THE STATE ex rel. ATLANTIC HORSE INSURANCE COMPANY v. FRANK BLAKE, Superintendent of Insurance

Supreme Court of Missouri

February 9, 1912

Peremptory writ denied.

Charles H. Brock for relator.

(1) When it is the evident intention of the legislative body to amend the existing law in a single matter only, and the amendment is incorporated by mistake in a repealed statute the court will hold that the amendment adheres to the existing law and is valid as to the said law. Commonwealth v. Kenneson, 143 Mass. 418; People v. Canvassers, 143 N.Y. 84; State v. Corbett, 61 Ark. 226; Svennes v. West Salem, 114 Wis. 650; Reeves v. Gay, 92 Ga. 309; Custin v Viroqua, 67 Wis. 314; 1 Lewis's Sutherland on Statutory Construction, pars. 233, 234. (2) When the respondent sets up as a ground for refusing the license an act of the Legislature, the relator may attack the constitutionality of such act; and the court may, in mandamus proceedings, pass upon its constitutionality. State ex rel. v. Turner, 210 Mo. 77; State ex rel. v Vandiver, 222 Mo. 206. (3) A foreign corporation, seeking admission to a State under its valid laws, may attack the validity or constitutionality of a particular provision of the statute which is the sole reason for its exclusion from the State. State ex rel. v. Cooper, 18 N.D. 583; State ex rel. v. Vandiver, 222 Mo. 236, 249; Text-Book Co. v. Gillespie, 229 Mo. 397.

Elliott W. Major, Attorney-General, and John M. Dawson and Campbell Cummings, Assistant Attorneys-General, for respondent.

(1) A litigant asking relief by mandamus must show itself possessed of a clear and legal right to the remedy. State ex rel. v. Hudson, 226 Mo. 265. As a general rule, courts will not declare an act unconstitutional in an application for a writ of mandamus. State ex rel. v. McIntosh, 205 Mo. 635; 26 Cyc. 156. Relator will not be heard to complain that the statute is unconstitutional on the ground that its license to do business in this State will be a benefit to citizens therein. Ordelheide v. Modern Brotherhood, 226 Mo. 210; McCully v. Railroad, 212 Mo. 54. Relator, being a foreign, unlicensed corporation, is precluded from assailing the constitutionality of the Acts of 1909 and 1911. The law is well settled that foreign corporations licensed to do business in a State are precluded from challenging the constitutionality of laws in force in such State at the time the corporation was admitted to do business therein, and this principle should apply with greater force to the case of a foreign corporation seeking a license to entitle it to enter and do business in another State. State ex rel. v. Vandiver, 222 Mo. 206; Daggs v. Ins. Co., 136 Mo. 398; Ins. Co. v. Daggs, 172 U.S. 566; Railroad v. Kentucky, 183 U.S. 503; Ins. Co. v. Herriott, 91 F. 711; 19 Cyc. 1317; State v. Green Lake Co., 98 Wis. 143; Tel. Co. v. Tel. Co., 7 Houst. (Del.) 269. (2) The Act of April 17, 1911, with emergency clause, amending section 7008, Revised Statutes 1909 (not mentioned and not attacked in relator's brief), was in force and effect prior to the petition filed herein, and required a capital of $ 200,000.

FERRISS, J. Woodson, J., dissents in opinion filed; Kennish, J., concurs in the result only.

OPINION

In Banc

Mandamus.

FERRISS, J.

This is an original proceeding in which the relator, a foreign insurance company, seeks by mandamus to compel the respondent to issue to it a permit to do business in this State. The cause is submitted upon a demurrer to the petition.

The relator is engaged in the business of live stock insurance, under charter from the State of Rhode Island, in which State it has its chief business office. On March 1, 1911, relator, having complied with all the laws of this State in that regard, save the statutory requirement of $ 200,000 capital, demanded from the respondent a permit to do business in the State. This permit was refused upon the sole ground that relator, having a capital of $ 110,000 only, failed to meet the requirement of section 7008, Revised Statutes 1909 (Laws 1909, p. 602), as amended by the Act of 1911 (Laws 1911, p. 271), then in force, and which requires such a company as this to have a capital of $ 200,000 as a condition prerequisite to admission into this State.

Relator in its petition asserts that it is entitled to a permit notwithstanding this statute, because the Act of 1901, which requires a capital of $ 100,000 only, has never been repealed or amended, and is still in force, and because the Act of 1909, if its effect is to amend said Act of 1901, is violative of both the State and Federal Constitutions, and therefore void. The respondent challenges the legal sufficiency of the petition.

The case presents three questions:

1. Do the statutes, properly construed, require this corporation to have a capital of $ 200,000 as a condition of its admission?

2. Is the relator entitled to challenge the validity of the Act of 1909, now section 7008, Revised Statutes 1909?

3. Is the Act of 1909 a valid law?

Whether this last question shall be considered depends upon our answer to the second question.

I. Prior to 1901 the statute required such a foreign corporation as this to have a capital of $ 200,000. [R. S. 1899, sec. 7957.] In 1901 the Legislature, by the terms of an act entitled, "An Act to repeal section 7957 of article 4 of chapter 119 of the Revised Statutes of Missouri 1899, and to enact a new section in lieu thereof to be known as section 7957, and to take the place of said section in said Article 4 of said chapter 119, and relating to insurance," reduced the capital requirement to $ 100,000, but otherwise re-enacted substantially section 7957.

So stood the law until 1909, when the Legislature amended section 7957, Revised Statutes 1899, by a bill with this title: "An Act to amend sections 7877 and 7957 of chapter 119 of the Revised Statutes of Missouri for the year 1899, relating to insurance, by inserting in each of said sections a clause permitting the investment of funds in bonds issued by school districts of the State of Missouri." In the body of the act appears a provision requiring a capital of $ 200,000, being similar in this regard to the original section in Revised Statutes 1899 as it stood prior to the Act of 1901, which reduced the required capital to $ 100,000. The Act of 1909 also provides for the investment in school bonds, as indicated in the title.

Relator claims that the original section 7957, Revised Statutes 1899, had been repealed by the Act of 1901, and that consequently the Act of 1909, which purported to amend section 7957, Revised Statutes 1899, and which did not refer to the Act of 1901, was inoperative, and left the Act of 1901 in full force; also that by the same reasoning the amendatory Act of 1911 is likewise inoperative to affect the Act of 1901.

In our opinion the contention of relator in this regard is unsound. The Act of 1901, by its terms, took the place of section 7957, Revised Statutes 1899, and became, after it took effect, to all intents and purposes, section 7957, Revised Statutes 1899, and subsequent reference to said section applied to the said 1901 act. Consequently, when the Act of 1909 amended said section, such amendment referred to the Act of 1901, which had been substituted for said section 7957.

The rule of law is that when a section of a statute is amended or displaced by a later substituted act, and still later an act is passed which in terms purports to amend the original section, referring to it by number, such last amendment applies to any intermediate amendment of, or substitution for, the original section, such intermediate amendment or substitute to be regarded as if it had always been a part of, or in place of, the original section. [State v. Schenk, 238 Mo. 429, 142 S.W. 263; Kamerick v. Castleman, 21 Mo.App. 587; Blake v. Brackett, 47 Me. 28; Greer v. State, 22 Tex. 588; Rowan v. Ide, 107 F. 161; Endlich on Int. of Stat., sec. 294; McKibben v. Lester, 9 Ohio St. 627.]

In the last-named case the court said: "When one or more sections of a statute are amended by a new act, and the amendatory act contains the entire section or sections amended, and repeals the section or sections so amended, the section or sections as amended must be construed as though introduced into the place of the repealed section or sections in the original act."

II. The right of a foreign corporation, seeking admission into this State, to challenge the constitutionality of a Missouri statute which refuses such admission, is a question of first impression in this court. We have in the case of State ex rel. v. Vandiver, 222 Mo. 206, 121 S.W. 45, permitted a foreign insurance company, doing business in this State under a permit, to question the validity of a condition subsequently imposed by the Legislature upon the granting of the annual renewal certificate. The reasons for that ruling are not discussed in the opinion of the court, but are set out in the dissenting opinion by Graves, J., concurring on this point, however, with the majority opinion.

The consideration of some general principles everywhere recognized will indicate clearly that a foreign corporation which has never been admitted into the State, as is the case here, but is standing, a stranger at the door, asking to be let in, occupies a position quite different from that of a corporation which has been admitted and has for many years done business within the State, and acquired property interests, thereby earning recognition as a "person" within the jurisdiction of the State.

A corporation exists by right only within the State that gave it the right to exist. It is purely a creature and creation of law, and the law of its being has no extraterritorial force or...