State v. Bankers' & Merchants' Mut. Ben. Asso.

• Decision Date: 31 March 1880
• Citation: 23 Kan. 499
• Parties: THE STATE, ex rel., v. THE BANKERS' AND MERCHANTS' MUTUAL BENEFIT ASSOCIATION
• Court: Kansas Supreme Court

23 Kan. 499

THE STATE, ex rel., v. THE BANKERS' AND MERCHANTS' MUTUAL BENEFIT ASSOCIATION

Supreme Court of Kansas

March 31, 1880

January 1880, Decided

Original Proceedings in Quo Warranto.

QUO WARRANTO, brought February 21, 1880, by the attorney general challenging the right of the Bankers' and Merchants' Mutual Benefit Association, of Atchison, Kansas, to transact business in this state, and praying that the defendant be required to show by what warrant or authority it exercises certain rights and franchises, and that said association may be dissolved, etc. The nature of the action appears in the opinion. The defendant demurred to the petition, on grounds as follows:

1. That under the laws of this state the defendant association is not required to open books for subscriptions to its capital stock, nor is it required to have any capital stock whatever subscribed therein.

2. That the defendant is not required under the laws of this state to deposit with the treasurer of state the sum of $ 100,000, or any other sum whatever, either in money, bonds, notes, or deeds of trust; nor is it required to make any deposit whatever in the office of the treasurer of state of any securities of any kind or nature.

3. That the defendant is not by law required to procure any certificate of such deposit from the superintendent of insurance of the state, nor is it by law required to procure any authority from said superintendent for it to commence the business proposed in the charter of the defendant association.

The opinion herein was filed March 31, 1880.

Willard Davis, attorney general, and A. B. Jetmore, for plaintiff.

W. D Webb, and A. F. Martin, for defendant.

BREWER J., Valentine, J., concurring. HORTON, C. J., not sitting.

OPINION

BREWER, J.:

This was an action of quo warranto, brought by the attorney general, challenging the right of defendant to transact business. The claim is, that defendant is carrying on the business of life insurance without authority therefor, and in conflict with the provisions of the law of 1871 creating the insurance department, and its several amendments.

The first question arises upon these facts: Sec. 78 of the law of 1871 (Laws 1871, p. 248) reads: "The provisions of this act shall not apply to life insurance companies organized on the cooperative plan." Sec. 6 of chap. 112, Laws 1875, p. 172, purports to amend this, and reads: "Section seventy-eight is hereby amended so as to read as follows: Section 78. The provisions of this act shall not be construed so as to prevent any Masonic, Odd Fellow, religious or benevolent society of this state from issuing indemnity to any one against loss by death of any of its members." The constitutionality of this latter section is denied, and the claim is that original section seventy-eight being still in force, by its terms excludes defendant from the operation of the insurance law. The ground of attack upon the amending section is a conflict with the first clause of section 16, of article 2 of the constitution, which provides that "no bill shall contain more than one subject, which shall be clearly expressed in its title." Chap. 112 of the Laws of 1875 is entitled "An act to amend sections two, four, seventeen, forty-one and fifty-nine of an act entitled," etc., giving the title of the act of 1871. Nothing is said in the title about section 78, no intimation of any intent to amend that, and its subject-matter is entirely distinct from that of the five sections which are named in the title. That is, while the title names five, the act touches six sections. A certain subject is clearly expressed in the title, i. e., the amendment of five specific sections. So far as the act follows the title, it is without question; but it goes beyond, and after doing all that its title intimates that it will do, it reaches out for something entirely separate and independent. Surely, if the title is to be an expression or suggestion of what the act contains, this title fails. And the title, it will be noticed, is not general and comprehensive, but particular and limited. Instead of being to amend the insurance law, under which general title an amendment of any section would be in order, it selects and names five sections which it proposes to amend. Could any title be more plainly limited than that? Would it by the remotest possibility suggest inquiry as to anything beyond those sections? It is true that the title is a matter of legislative selection, and that it could in this case have chosen one broad enough to include the challenged section, but it did not, and the courts have no more power to enlarge the title than to amend the law. As was said by the supreme court of Missouri in the case of The City of St. Louis v. Tiefel, 42 Mo. 578, "If the legislature has seen proper to make the title restrictive, the court has no authority, by mere construction, to enlarge it, or make it more comprehensive." (Menwhertin v. Price, 11 Ind. 199.) The constitution has said that the title must be an index to the law, and the courts may not sanction as a valid enactment any part of a statute to which the finger of the title does not point. If we should attempt to enlarge the title, we should defeat the very purpose of the constitutional prohibition, which was to make the title to a bill notice of all contemplated legislation. It is said by Cooley, in his work on Constitutional Limitations, p. 149:

"As the legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as to preclude many matters being included in the act which might with entire propriety have been embraced in one enactment with the matters indicated by the title, but which must now be excluded, because the title has been made unnecessarily restrictive. The courts cannot enlarge the scope of the title; they are vested with no dispensing power. The constitution has made the title the conclusive index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been more comprehensive, if in fact the legislature have not seen fit to make it so."

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