State ex rel. State Farmers' Mut. Hail Ins. Co. v. Cooper

Decision Date26 April 1909
Citation120 N.W. 878,18 N.D. 583
PartiesSTATE ex rel. STATE FARMERS' MUT. HAIL INS. CO. v. COOPER, Insurance Com'r.
CourtNorth Dakota Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

Although repeals by implication are not favored, two irreconcilably repugnant acts passed at different times relative to the same subject cannot stand together, and the later operates to repeal the former.

It is therefore held that section 4449 of the Revised Codes of 1905, as amended by chapter 153, p. 245, Laws 1907, repealed section 4447 of said Revised Codes, and that mutual insurance companies organized under the laws of any other state or country are authorized to engage in the business of hail insurance in this state by complying with the provisions of said section 4449 so far as it applies to foreign mutual insurance companies.

Appeal from District Court, Burleigh County; W. H. Winchester, Judge.

Mandamus by the State, on the relation of the State Farmers' Mutual Hail Insurance Company, against E. G. Cooper, as Commissioner of Insurance. Judgment for respondent, and relator appeals. Reversed and remanded.Engerud, Holt & Frame and Turner, Wright & Lewis, for appellant. Andrew Miller, Atty. Gen., and Alfred Zuger, Asst. Atty. Gen., for respondent.

CARMODY, J.

This is an appeal from a judgment dismissing plaintiff's application for a writ of mandamus against the defendant, requiring him as insurance commissioner to receive and entertain plaintiff's application for leave to transact a hail insurance business in this state. The facts are agreed upon by the parties, and are as follows: That the relator is an insurance company organized under the laws of the state of Minnesota, on the mutual plan, and that its business is the insurance of growing crops against hail. It has submitted to the defendant an application for leave to transact a hail insurance business in this state, together with a copy of its articles of incorporation and power of attorney making and constituting the defendant its attorney in fact, upon whom service of legal process against it may be made, together with a statement of its assets and liabilities. The relator was at said time, and now is, ready and willing to deposit with the Treasurer of this state the sum of $25,000 in money for the purposes enumerated in section 4449 of the Revised Codes of 1905, being section 1, c. 114, p. 152, Laws 1903, as amended by chapter 153, p. 245, Sess. Laws 1907. If he deemed he had authority so to do, defendant would admit the relator to transact a hail insurance business in this state. He has, however, refused to receive or entertain the application of the relator, and he places his refusal on the sole ground that in his judgment, under the provisions of section 4447 of the Revised Codes of 1905, being sections 1, 2, c. 109, p. 145, Laws 1903, foreign mutual hail insurance companies are prohibited absolutely from transacting the business of hail insurance in this state, and that no discretion is vested in the insurance commissioner, but that he is wholly without authority to admit such companies to transact business of hail insurance in this state. The trial court made its findings of fact, conclusions of law, and order for judgment in favor of the defendant and against the relator, dismissing the application on the sole ground that foreign mutual insurance companies are prohibited from taking any hail risk, and from transacting the business of hail insurance in this state, and that the commissioner of insurance is wholly without authority to admit such companies into this state for the purpose of transacting a hail insurance business. Judgment was entered accordingly, from which judgment this appeal was taken.

Prior to the enactment of chapter 109, Laws 1903, being sections 4447, 4448, Rev. Codes 1905, foreign mutual hail insurance companies transacted the business of hail insurance in this state. Chapter 109, being sections 4447, 4448, Rev. Codes 1905, so far as material here, reads as follows:

Section 1. No foreign insurance company incorporated upon the mutual plan shall directly, or indirectly, take any hail risk, or transact the business of hail insurance in this state.

Sec. 2. All contracts, notes, mortgages and other evidence of indebtedness made or taken in violation of sec. 1 hereof is hereby declared void.

Sec. 3. Any person who violates any of the provisions of this act or who procures or induces another to do so is guilty of a misdemeanor.

Sec. 4. All acts and parts of acts in conflict with the provisions of this act are hereby declared repealed.”

This act was approved March 4, 1903. An emergency clause made it immediately effective. The same Legislature passed chapter 114, Laws 1903, being sections 4449, 4454, Rev. Codes 1905. This act was approved March 10, 1903, and was accompanied by an emergency clause; and, as far as material to the decision of this case, reads as follows: “No mutual insurance company hereafter organized under the laws of this state, or now or hereafter organized under the laws of any state or country, shall engage in the business of hail insurance in this state without first depositing and thereafter keeping on deposit with the Treasurer of this state, the sum of twenty-five thousand dollars in money, or in lieu thereof bonds of this state or of the United States, of the par value of twenty-five thousand dollars.” This section was by the legislative assembly of 1907 reenacted and amended to read as follows: “No mutual insurance company hereafter organized under the laws of this state or now or hereafter organized under the laws of any state or country, shall engage in the business of hail insurance in this state without first depositing and thereafter keeping with the Treasurer of this state, the sum of twenty-five thousand dollars, in money, or in lieu thereof bonds...

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6 cases
  • State ex rel. Braatelien v. Drakeley
    • United States
    • North Dakota Supreme Court
    • October 9, 1913
    ... ... enactment will prevail. State v. Cooper, 18 N.D ... 583, 120 N.W. 878 ... 535, 97 N.W. 745; State ex rel ... Dakota Hail Asso. v. Carey, 2 N.D. 36, 49 N.W. 164; 26 ... Cyc. 404 ... ...
  • State ex rel. Atlantic Horse Ins. Co. v. Blake
    • United States
    • Missouri Supreme Court
    • February 9, 1912
    ... ... from the State. State ex rel. v. Cooper, 18 N.D ... 583; State ex rel. v. Vandiver, 222 Mo. 236, 249; ... ...
  • State v. Hagge
    • United States
    • North Dakota Supreme Court
    • December 20, 1974
    ...and inconsistent Kessler v. Board of Education of City of Fessenden, 87 N.W.2d 743 (N.D.1958); State ex rel. State Farmers' Mut. Hail Ins. Co. v. Cooper, 18 N.D. 583, 120 N.W. 878 (1909). A statute may repeal prior inconsistent legislation, whether expressly declaring such repeal or not. Ha......
  • State ex rel. Braatelien v. Drakeley
    • United States
    • North Dakota Supreme Court
    • October 9, 1913
    ...has been so recently discussed and decided by this court that we need not make further reference to authorities. See State v. Cooper, 18 N. D. 583, 120 N. W. 878. The character of this legislation is such that this rule must overcome any presumption against an implied repeal. When chapter 2......
  • Request a trial to view additional results

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