Tate v. Salmon

• Court: Kentucky Court of Appeals
• Writing for the Court: LEWIS, CHIEF JUSTICE:
• Citation: Tate v. Salmon, 79 Ky. 540, 3 Ky.L.Rptr. 359 (Ky. Ct. App. 1881)
• Decision Date: 08 November 1881
• Parties: Tate, Treasurer, & c., v. Salmon, & c.

79 Ky. 540

3 Ky.L.Rptr. 359

Tate, Treasurer, & c., v. Salmon, & c.

Court of Appeals of Kentucky.

November 8, 1881

1. The commonwealth cannot be sued in her own courts without special legislative authority, and parties will not be allowed to evade this rule by ignoring the commonwealth in their suits and proceeding directly against the public officer having the custody of the fund sought to be reached.

2. The act of the general assembly, requiring of the Piedmont and Arlington Insurance Company a deposit of $10,000 for the benefit of its policy-holders in this state, failing to make any provision for the disposal of the fund, the State Treasurer cannot dispose of it or be compelled to do so by order of any court until there be further legislative authority.

APPEAL FROM DAVIESS CIRCUIT COURT.

P. W HARDIN, ATTORNEY GENERAL, FOR APPELLANTS.

Neither the state nor her officers as such can be sued without an act of the legislature authorizing it. (Rolle, ass'e, v Andes Ins. Co., 23 Gratt., 509; Divine v. Harvie, 7 Mon., 439; Tracy & Loyd v. Hornbuckle and wife, 8 Bush, 336; Rodman v. Musselman, 12 Bush, 354; 30 Grattan, 72.)

OWEN &amp ELLIS FOR APPELLEES.

1. This being the first suit brought for a distribution of the fund in controversy, the court in which it was brought acquired jurisdiction over the fund, and may distribute it. (Secs. 72 and 210, Civil Code.)

2. The state is not a party to this action and has no interest in it; therefore an act of the legislature authorizing the suit was not necessary.

OPINION

LEWIS CHIEF JUSTICE:

By section 47 of an act of the general assembly, entitled " An act to establish an Insurance Bureau," approved March 10, 1870, it is provided as follows: " When, by the laws of any other state, any taxes, fines, penalties, deposits of money or of securities, or other obligations, prohibitions, or requirements are imposed upon insurance companies organized or incorporated under any general or special law of this state, and transacting business in such other state, or upon the agents of such insurance company greater than those imposed upon similar companies by the laws of this state, or when such laws of other states shall require insurance companies of this commonwealth to deposit money or security for the benefit or protection of citizens of such other states, or when the laws of any other state, or the officers thereof, shall prohibit companies of this commonwealth from transacting business in said state without a special examination of said companies, or a computation of their liabilities by the officers of said state, the same taxes, fines, penalties, deposits, examinations, obligations, and requirements shall be imposed upon all insurance companies doing business in this state which are incorporated or organized under the laws of such state, and upon their agents."

It appears that the legislature of the state of Virginia passed a law requiring every life insurance company organized or incorporated under laws of other states, before doing business in that state, to deposit with the treasurer thereof securities of the cash value of at least ten thousand dollars. It therefore became the duty of the Insurance Commissioner of this state, under section 47 just...