State ex rel. Farmers' Mut. Ins. Co. of Nebraska v. Moore

• Decision Date: 16 June 1896
• Parties: STATE EX REL. FARMERS' MUT. INS. CO. OF NEBRASKA v. MOORE, AUDITOR.
• Court: Nebraska Supreme Court

48 Neb. 870

67 N.W. 876

STATE EX REL. FARMERS' MUT. INS. CO. OF NEBRASKA

v.MOORE, AUDITOR.

Supreme Court of Nebraska.

June 16, 1896.

Syllabus by the Court.

1. It is only where an act of the legislature is incomplete in itself, but manifestly amendatory of some existing statute to which it does not refer, that it is within the inhibition of the constitutional provision that “no law shall be amended unless the new act contain the section or sections so amended, and the section or sections so amended shall be repealed.” Const. art. 3, § 11. If the act is complete in itself, it does not violate said provisions.

2. The act of the legislature approved March 30, 1891, entitled “An act to authorize the organization of mutual insurance companies” (Sess. Laws 1891, p. 272, c. 33), is not inimical to said clause of section 11 of article 3 of the constitution, it being an independent and complete law of itself, and not amendatory of a prior statute.

3. Held, that said act contains but a single subject of legislation, which is fairly expressed in the title.

4. It is only where two statutes on the same subject are so repugnant to each other that both cannot be enforced that the last one enacted will supersede the former, and repeal it by implication.

5. Where a statute contains provisions which are unconstitutional, if the valid and invalid are not so connected as to be incapable of separation, and the valid portion is a complete act, and not dependent upon the part that is void, the latter alone will be disregarded, and the rest sustained, if it is manifest that the void part was not an inducement to the legislature to pass the part which is valid.

6. The clause of section 8 of the said act of March 30, 1891, which declares that each policy holder shall “at the time of effecting the insurance pay such percentage in cash and such other charges as may be required by the rules and by-laws of the company” (Sess. Laws 1891, p. 274, c. 33, § 8), construed, and held, that the word “cash,” in the connection employed, means current money, and that the amount, as well as whether any advance payments shall be made by the insured, depends alone upon the rules and by-laws of the company.

7. In case the rules and by-laws provide for the payment in money of a membership fee or other charge at the time the insurance is written, the same must be paid in advance in cash, and not by accepting in lieu thereof the promissory note of the policy holder.

Original application of the state, on the relation of the Farmers' Mutual Insurance Company of Nebraska, for a writ of mandamus to compel Eugene Moore, auditor of public accounts, to issue to relator a certificate of authority to transact business in Nebraska. Writ denied.F. Martin, Thomas Darnall, and Lamb & Adams, for relator.

A. S. Churchill, Atty. Gen., and Geo. A. Day, Dep. Atty. Gen., for respondent.

Chas. O. Whedon, on constitutionality of insurance law of 1891.

NORVAL, J.

Relator is a mutual insurance company incorporated under and by virtue of the provisions of the act of the legislature entitled “An act to authorize the organization of mutual insurance companies,” approved March 30, 1891 (Sess. Laws 1891, p. 272, c. 33). It has been doing a general mutual insurance business in this state for more than four years, has a membership of about 4,500, and is carrying insurance of more than $13,000,000. On the 15th day of January, 1896, relator filed with the respondent, auditor of public accounts, an annual statement of its business for the year ending December 31, 1895, and on February 1, 1896, and at various times since said date, it has requested and demanded that respondent issue to relator a certificate authorizing it to do a mutual insurance business in this state. Respondent having refused to comply with said request, this action was instituted to require him to issue to relator a certificate of authority to transact business. Two matters are presented by the record for consideration: First, the constitutionality of the act under which relator was incorporated; second, has relator complied with that part of section 8 of said act which provides that members of the company shall, “at the time of effecting the insurance, pay such percentage in cash and such other charges as may be required by the rules and by-laws of the company.” It is contended that the act of 1891 (chapter 33 of the Laws of that year) is in contravention of that clause of section 11, art. 3, of the constitution, which declares that “no law shall be amended unless the new act contain the section or sections so amended, and the section or sections so amended shall be repealed.” This constitutionalprovision has been frequently before this court for consideration, and it is a rule well settled that, where an act of the legislature is not complete in itself, but is amendatory of a former law to which it does not refer, it is within the constitutional inhibition quoted above. In other words, the fundamental law of the state requires all the parts of an amended law to be incorporated in the act, and the old law so amended to be repealed If said constitutional provision is disregarded or not complied with in the amendment of a prior act, the new law is void. Smails v. White, 4 Neb. 353; Ryan v. State, 5 Neb. 276; Lancaster Co. v. Hoagland, 8 Neb. 38; Sovereign v. State, 7 Neb. 409; In re House Roll 284, 31 Neb. 505, 48 N. W. 275;Stricklett v. State, 31 Neb. 674, 48 N. W. 820;City of South Omaha v. Taxpayers' League, 42 Neb. 671, 60 N. W. 957. It is also firmly established in this state by a long line of decisions that an act complete in itself is not inimical to said constitutional provision, although such act may be repugnant to or in conflict with a prior law, which is not referred to nor in express terms repealed by the later act. In such case the earlier statute will be construed to be repealed by implication. Smails v. White, 4 Neb. 353; Jones v. Davis, 6 Neb. 33; State v. Maccuaig, 8 Neb. 215; State v. Whittemore, 12 Neb. 252, 11 N. W. 310;State v. Page, 12 Neb. 386, 11 N. W. 495;State v. Ream, 16 Neb. 681, 21 N. W. 398;Ballou v. Black, 17 Neb. 389, 23 N. W. 3;Herold v. State, 21 Neb. 50, 31 N. W. 258;State v. Arnold, 31 Neb. 75, 47 N. W. 694;Brome v. Cuming Co., 31 Neb. 362, 47 N. W. 1050;State v. Benton, 33 Neb. 823, 51 N. W. 140;State v. Bemis, 45 Neb. 724, 64 N. W. 348. The rule last above stated is not assailed as being unsound, but it is argued that it is not applicable here, since the law under consideration contains no specific or general repealing clause. That it does not purport to repeal any previous enacted statute in conflict therewith is not an important consideration. Its failure to do so did not make the act incomplete, as suggested by counsel. All prior laws conflicting with the act of 1891 were as effectually repealed by implication as though said act had contained a specific or general repealing provision. In some of the cases above cited statutes were upheld although some of their provisions were repugnant to existing laws upon the same subject, and no repealing clauses were inserted.

The act of 1891, under which relator was organized and incorporated, consists of 19 sections, some of which embody the same subject of legislation at that time contained in chapter 43, Comp. St., entitled “Insurance Companies,” and there is an apparent, if not a real, conflict between the provisions of the two laws. Thus by section 1 of the act of 1891, any number of persons, not less than 20, residing in the state, who collectively shall own property of the value of $20,000 or over, which they desire to have insured, are authorized to organize a mutual insurance company; while section 3 of said chapter 43 requires at least 200 persons to form an insurance company on the mutual plan. The mode of organization, as well as the manner of conducting the business, is prescribed in each act, and in many essential particulars the two enactments are contradictory; but in so far as they do conflict, if both laws cannot stand, the provisions of the older act must yield to the latest expressions of the legislative will. The act of 1891 purports to be and it is an independent and complete law within itself, not amendatory of, nor in any manner depending upon, any other statute, and therefore, under the authorities cited, is not inimical to the constitutional provision quoted above. Said chapter 43, prior to 1891, related to different kinds of insurance companies, among others, fire and life, stock companies as well as those organized upon the mutual plan, while the act under review deals with mutual companies alone, and authorizes their organization upon terms and conditions different from those specified in said chapter 43; yet it does not follow that the provisions of the old law on...