State ex rel. Martin v. Howard
| Citation | 96 Neb. 278,147 N.W. 689 |
| Decision Date | 29 May 1914 |
| Docket Number | Nos. 18175,18213.,s. 18175 |
| Parties | STATE EX REL. MARTIN, ATTY. GEN., ET AL. v. HOWARD ET AL. STATE EX REL. HOWARD, AUDITOR OF PUBLIC ACCOUNTS, v. BRIAN ET AL. |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A comprehensive act of the Legislature, such as chapter 154, Laws 1913, commonly known as the Insurance Code, consisting of 11 articles and 183 sections, the evident purpose of its enactment being to cover and codify the law upon the whole subject of insurance, will not be held invalid for the reason that a portion of a proviso to one section was not correctly copied into the enrolled bill which was signed by the officers of the Legislature, and by the Governor, or on account of the inclusion in another section of an invalid minor provision, when it does not appear that the defective portions constituted the inducement to the passage of the act, and when the objectionable parts may be eliminated and still leave an enforceable law which expresses the legislative will.
“In order to justify the courts in declaring invalid as a delegation of legislative power a statute conferring particular duties or authority upon administrative officers, it must clearly appear beyond a reasonable doubt that the duty or authority so conferred is a power that appertains exclusively to the legislative department, and the conferring of it is not warranted by the provisions of the Constitution.” State v. Atlantic C. L. R. Co., 56 Fla. 617, 47 South. 969, 32 L. R. A. (N. S.) 639.
By the terms of the act the insurance board created thereby is directed to prepare a form of fire insurance policy “as nearly as practicable in the form known as the New York standard.” Laws 1913, c. 154, § 100. Many provisions are contained in other sections of the act denying contract provisions contained in the New York standard form, and permitting others not so contained. Held, that it was the intention of the Legislature that the New York form should be adopted as the basis of the insurance contract, and that the words “as nearly as practicable” should be construed to mean “as nearly as practicable” considering all other provisions contained in the Insurance Code which are inconsistent with or modify the provisions of the New York standard form.
The duty of the board in this regard is to arrange and prepare in proper form the form of contract required under this statute, omitting all provisions of the New York form which are in conflict with the provisions of the Code. Its duties are therefore ministerial or administrative, and not legislative, and the section imposing the duty is not an unconstitutional delegation of legislative power.
That portion of the section referred to which provides that the New York form shall be used as it “may be hereafter constituted” is invalid, because its effect would be that the future action of the Legislature of another state would govern and control the duties of officials in this state, and would require legislative action by the board.
Sections 147, 148, and 149 of the act in question, permitting the establishment of maximum rates of premium for surety and fidelity companies under certain circumstances by the insurance board, are not void on account of taking property without due process of law, or as being an unlawful delegation of legislative power.
State v. Atlantic C. L. R. Co., 56 Fla. 617, 47 South. 969, 32 L. R. A. (N. S.) 639.
The court, in an action brought by a public official and member of the board created by the law, will not anticipate, for the purpose of declaring a law unconstitutional, that the acts of the board, to which is committed its administration, will in the future infringe upon the rights of others, or deprive persons of property without due process.
The state may impose such conditions and limitations as it sees fit upon foreign corporations seeking the privilege of doing business in this state.
Original mandamus by the State, on the relation of Grant G. Martin, Attorney General, against William B. Howard and others. Original information in quo warranto by the State, on the relation of William B. Howard, Auditor of Public Accounts, against Lawson G. Brian and others. Motion to recall writ of mandamus overruled, and proceedings in quo warranto dismissed.
Grant G. Martin, of Lincoln, for relators.
Stout, Rose & Wells, of Omaha, and W. B. Comstock, of Lincoln, for respondents.
Stout, Rose & Wells, of Omaha, and W. B. Comstock, of Lincoln, for plaintiff.
Burkett, Wilson & Brown and E. C. Strode, all of Lincoln, W. O. Temple, of Denver, Colo., and J. H. Broady, of Lincoln, amici curiæ.
Grant G. Martin, of Lincoln, for defendant.
This is an original information in quo warranto brought to oust the Governor of the state and the Attorney General from the positions of members of the state insurance board, and to oust Lawson G. Brian from the office of secretary of such board, to which he was appointed by the officers named, acting as the insurance board. The relator is the auditor of public accounts. He claims the right to administer the insurance department by virtue of the statutes which were in force when he assumed his office. The respondents admit that at the time he became state auditor he was charged with the administration of the insurance department of the state, with the custody of the records, books, and accounts of that department, and the safe-keeping of deposited securities, and that he took charge of and administered this department until on or about the 19th day of July, 1913. They claim to hold the office called in question by virtue of an act passed and approved upon April 18, 1913, and popularly known as the New Insurance Code. The relator maintains that this act is in conflict with the Constitution and void for a number of reasons, which will be considered in the order in which they are presented in the relator's brief.
The title to the act, the validity of which is attacked in this proceeding, is:
“An act to provide for the organization and government of insurance companies and to regulate, supervise and control the business of insurance in Nebraska, to provide penalties for its violation, to provide for an insurance board and define its duties and powers and to repeal chapter 31 of the Revised Statutes of 1913, being chapter 24 of Cobbey's Annotated Statutes of Nebraska, for 1911 [C. S., ch. 16, §§ 1-14a; ch. 43; ch. 28, § 47] and all acts and parts of acts in conflict therewith.”
It was introduced in the Senate as Senate File No. 364, and is chapter 154, Laws 1913. The act is divided into 11 articles. Article I is concerned with definitions alone, and occupies nearly three pages of text. Article II provides for a state insurance board, and prescribes its constitution, powers, and duties. Article III is taken up with general provisions. Article IV treats of kinds of insurance and organization of companies. Article V covers the subject of reserves. Article VI: Standard Forms and Provisions. Article VII: General Provisions Covering Fire Companies. Article VIII: General Provisions Governing Life, Health, and Accident Companies. Article IX: Assessment Associations. Article X: Miscellaneous Provisions. Article XI: Fraternal Insurance. The whole act consists of 183 sections. The evident purpose of the enactment was to cover and codify the whole subject of insurance in every phase, to embody necessary reforms, and to substitute a harmonious arrangement in orderly sequence for the badly arranged mass of insurance legislation which formerly appeared upon the statute books.
By this act a state insurance board is created “which shall consist of the Governor, who shall be ex officio chairman thereof, the auditor of public accounts and the Attorney General, a majority of whom shall constitute a quorum.” This board is given general supervision, control, and regulation of insurance companies of all kinds, and of the business of insurance in Nebraska. It is also provided that immediately upon the taking effect of the act the auditor shall surrender to the state insurance board all the records, books, blanks, reports, and other property pertaining to insurance and the insurance department, together with all the securities and properties of insurance companies now held by him, and the board was authorized to elect and appoint with other officers “a secretary of the board, who shall be known and styled herein as ‘Insurance Commissioner.’ ”
After the act took effect, the auditor refused to assemble with the other members of the insurance board or take any part in its deliberations, and refused to deliver to Lawson G. Brian, the insurance commissioner appointed by the board, the records, books, blanks, securities, and other property held by him by virtue of former statutes. In July, 1913, an application for a peremptory writ of mandamus to compel him and subordinate officers of his department to deliver such books and securities to the board was granted by this court and complied with by him. A motion was afterwards filed by him to vacate the peremptory writ. This motion is now pending. In August, 1913, this action in quo warranto was begun. The same points are urged in both cases by the auditor, who is relator in the quo warranto case and respondent in the mandamus proceedings. Both cases, therefore, will be considered and disposed of in this opinion.
[1] Coming, now, to the contention of the relator, it is first claimed that the act in the form in which it was enrolled and presented to and approved by the Governor did not pass either house of the...
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