State v. Clark

• Decision Date: 28 June 1918
• Docket Number: No. 20743.,20743.
• Citation: 275 Mo. 95,204 S.W. 1090
• Parties: STATE ex rel. WATERWORTH et al. v. CLARK, Acting Superintendent of State Ins. Dept.
• Court: Missouri Supreme Court

204 S.W. 1090

275 Mo. 95

STATE ex rel. WATERWORTH et al. v. CLARK, Acting Superintendent of State Ins. Dept.

No. 20743.

Supreme Court of Missouri. In Banc.

June 28, 1918.

Mandamus by the `State of Missouri, at the relation of James A. Waterworth and another, as managers of the Missouri Inspection Bureau, against Claud L. Clark, Acting Superintendent of the Insurance Department of the State of Missouri. Demurrer of respondent sustained, and writ denied.

Thomas Bates and Seymour Edgerton, both of Chicago, Ill., and Chas. G. Revelle, of Jefferson City, for relators. Frank W. McAllister, Atty. Gen., and Thos. J. Cole and John T. Gose, Asst. Attys. Gen., for respondent.

FARIS, J.

This is an original proceeding by mandamus, whereby it is sought to compel respondent, as the acting superintendent of insurance to file, approve, and permit the use on all standard policies of insurance of what is called the "reduced rate contribution clause."

The petitioners are the managers of what they denominate the Missouri Inspection Bureau, an unincorporated entity, established and maintained under the provisions, it is alleged, of an act entitled "An act to regulate insurance against loss or damage by fire, lightning, hail, windstorm and sprinkler leakage, and the rates of premium thereon, and to provide for the making and maintenance of public records in relation thereto, with an emergency clause," approved March 20, 1915. Laws 1915, p. 313. This act is called in the briefs the "Rating Act," and we shall for convenience hereinafter refer to it by that name.

The reduced rate contribution clause, which petitioners by this proceeding seek to compel the superintendent of insurance to file and approve for use upon all standard policies, which policies he is required by another statute to approve, reads thus:

"Uniform Standard Missouri Reduced Rate

Contribution Clause with Application. "____ hereby request that there be attached to policy number ____ of the ____ (name of company) the following reduced rate contribution clause, to wit:

"In consideration of the rate at or form under which this policy is written, it is expressly stipulated, and made a condition of this contract, that this company shall be held liable for no greater proportion of any loss than the amount hereby insured bears to ____% of the actual cash value of the property described herein at the time when such loss shall happen; but if the total insurance upon such property exceeds ____% at the time of such loss, then this company shall only be liable for the proportion which the sum hereby insured bears to such total insurance.

"If this policy be divided into two or more items, the foregoing conditions shall apply to each item separately.

"It is understood by the undersigned that the effect of the above-mentioned reduced rate contribution clause, when attached, will be to reduce the liability of the insurance, unless the property described in the policy covered by said insurance is insured for ____% of its actual cash value, except where the loss exceeds the amount of insurance required under this clause.

                                       "____, Assured
                

"In compliance with the above application, signed by the assured under this policy, made to and on file with this company, the above reduced rate contribution clause is made a part of this policy.

"Attached to and forming part of policy No. ____ of the ____ (name of insurance company), issued at its ____ Agency.

                  "Dated ____, 19__
                                       "____ Agent
                

"This application and clause must be signed by both assured and agent in duplicate and attached to both policy and daily report."

The issuance of an alternative writ has been waived, and it has been agreed that the petition filed herein should be regarded for all purposes as the alternative writ. To this petition, respondent has interposed a general demurrer, go that the case is before us upon an issue of law.

I. The respective contentions of law arising upon the demurrer, are these: Petitioners concede the application of a statute, which was passed in 1803 (Laws 1893, p. 186), and which was amended in 1003, by appending thereto a proviso in substance to the effect that the prohibition of the section should not be applicable to cities containing 100,000 inhabitants or more (Laws 1903, p. 209) and which now appears as section 7023, R. S. 1909, and reads thus:

"No fire insurance policy which may be issued after this section takes effect shall contain any clause or provision requiring the assured to take out or maintain a larger amount of insurance than that covered by such policy, nor in any way providing that the assured shall be liable as consumer with the company issuing the policy for any part of the loss or damage which may be occasioned by fire or lightning to the property covered by such policy, nor making provisions for a reduction of such loss or damage, of any part thereof, by reason of the failure of the assured to take out and maintain other insurance upon said property. And all clauses and provisions in fire policies, issued after the taking effect of this section, in contravention of the prohibitions in this section contained, shall be ab initio void and of no effect: Provided, that the provisions of this section shall not apply to policies issued upon personal property in cities which now contain or which may hereafter contain one hundred thousand inhabitants or more whenever the insured sign an agreement endorsed across the face of said policy to be exempt from the provisions thereof."

But petitioners contend: (a) That the Rating Act has by the clearest implication (aided by an express repealing section, affecting all inconsistent provisions) repealed section 7023, supra; and (b) that, whether repealed or unrepealed, section 7023, is unconstitutional. The first point is not unduly stressed in the petition, and, if it be made therein at all, it is made by the very vaguest implication. It is, however, most strenuously urged in the brief of the petitioners.

The contention of constitutional invalidity is bottomed upon the effect of the proviso, which was added, as stated above, by amendment in 1903. There is no attack made upon the section as it stood before the amendment, which amendment permits the attachment of the reduced rate contribution clause to a policy, on the request of the assured, in all cities containing 100,000 inhabitants or more. It is on this point contended that the proviso had the effect to make the theretofore general inhibition against the reduced rate contribution clause a local and special law, and impaired the obligation of contracts, and that, as amended, it denied to the inhabitants of the state, other than those residing in cities of 100,000 or more inhabitants, the equal protection of the law, and had the effect to take their property without due process of law.

The bare statement of the contention makes it apparent that, even if the amendment in 1903 had the effect to render the act unconstitutional, the petitioners are in no wise aided by such invalidity; for it is fairly well settled that if an existing statute be amended and re-enacted, and be by the amendment rendered unconstitutional, the original statute, upon the judicial declaration of invalidity, comes automatically into force again. Lexington v. Lafayette County Bank, 165 Mo. 671, 65 S. W. 943; State ex rel. v. Mills, 231 Mo. loc. cit. 498, 133 S. W. 22; State ex rel. v. Gantt, 203 S. W. 964 (not yet officially reported); Eberle v. Michigan, 232 U. S. 700, 34 Sup. Ct. 464, 58 L. Ed. 803; State v. Rice, 115 Md. 317, 80 Atl. 1026, 36 L. R. A. (N. S.) 344, Ann. Cas. 1913A, 1247: 36 Cyc. 1056, and cases cited. Since, therefore, the original statute absolutely forbids and makes void all reduced rate contribution clauses, specifically and because they were methods of coinsurance (Process Co. v. Continental Insurance Co., 175 Mo. App. 317, 162 S. W. 313), without regard to the residence of the assured, petitioners would be in no wise aided by the unconstitutionality of said section, in so far as such invalidity is bottomed upon the fact of amendment. We need not, therefore, take up space with this contention.

II. But it is said that the Rating Act of 1915 is patently inconsistent with the provisions of section 7023, and that, therefore, the latter is repealed by section 17 of the Rating Act, which expressly repealed all inconsistent acts or parts of acts. Laws 1915, § 17, p. 319.

The rule is well settled that repeals by implication are not favored in law. Gasconade County v. Gordon, 241 Mo. 599, 145 S. W. 1160. There is in the Rating Act an express repeal, however, of all acts and parts" of acts which are inconsistent with the provisions of that act. Section 17, p. 319, Laws 1915. This leaves open for judicial determination the question whether there is, as between the provisions of the Rating Act and those of section 7023, supra, any irreconcilable conflict and repugnancy. Stricklen v. Combe Printing Co., 249 Mo. 614, 155 S. W. 829. If there is, we must needs enforce the section which repeals all inconsistent provisions, and declare so much of section 7023 which is in conflict with the provisions of the Rating Act to be no longer in force. Particularly, it is contended that sections 9 and 10 of the Rating Act are in conflict with the provisions of said section 7023.

In brief, and substantially, section 7023, supra, provides: (a) That no insurance company shall write any policy which requires the assured thereunder to carry a larger amount of insurance than that covered by such policy; (b) nor any policy requiring the...