The Sons and Daughters of Justice v. Swift

• Decision Date: 10 March 1906
• Docket Number: 14,520
• Citation: 73 Kan. 255,84 P. 984
• Parties: THE SONS AND DAUGHTERS OF JUSTICE v. LAURA E. SWIFT et al
• Court: Kansas Supreme Court

84 P. 984

73 Kan. 255

THE SONS AND DAUGHTERS OF JUSTICE v. LAURA E. SWIFT et al

No. 14,520

Supreme Court of Kansas

March 10, 1906

Decided January, 1906.

Error from Montgomery district court; THOMAS J. FLANNELLY, judge.

Case dismissed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FRATERNAL BENEFICIARY ASSOCIATIONS--Proceeding in Error--Limitation. Section 13 of chapter 23 of the Laws of 1898 (Gen. Stat. 1901, § 3580) limits the time within which fraternal beneficiary associations may appeal from a judgment to sixty days after its rendition. The case of Modern Woodmen v. Heath, 71 Kan. 148, 79 P. 1091 approved and followed.

2. CONSTITUTIONAL LAW--"Equal Protection of the Laws." This construction of the statute does not deprive such associations of the "equal protection of the laws," notwithstanding other litigants have one year within which to perfect an appeal.

J. B. Tomlinson, and Farrelly & Evans, for plaintiff in error.

Albert L. Wilson, for defendants in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.

The plaintiff in error is a fraternal beneficiary association chartered under chapter 23 of the Laws of 1898. On November 4, 1904, the defendants in error recovered a judgment against it on a beneficiary certificate issued by it to one Thomas M. Swift. A case-made for a review of the proceedings was properly and timely made, served, settled and signed, and, together with a petition in error, filed in this court May 24, 1905. The defendants in error challenge the jurisdiction of the court to hear and determine the question presented in the record, and move to dismiss the petition in error for the reason that the proceeding in error was not commenced in this court within the time limited by section 13 of chapter 23, Laws of 1898 (Gen. Stat. 1901, § 3580). The title of the act under which plaintiff in error was chartered reads as follows:

"An act providing for the organization and regulation of fraternal beneficiary societies, orders, and associations, and to provide penalties for violation thereof."

That part of section 13 containing the provision under consideration is as follows:

"Any association authorized to do business under this act refusing or neglecting to make the reports provided for in this act, or which shall exceed its powers, or shall conduct its business fraudulently, or which shall take steps to remove any suit commenced against it in any of the courts in this state to any of the courts of the United States, or which shall fail to pay any judgment rendered against it in any court in this state, unappealed from, within sixty days of the rendition of such judgment, or which shall fail to comply with any of the provisions of this act, shall be excluded from doing business within this state." (Gen. Stat. 1901, § 3580.)

The application of this section to a similar state of facts was considered by this court in Modern Woodmen v. Heath, 71 Kan. 148, 79 P. 1091, and the section applied, and the cause dismissed. That decision is attacked on the ground that the section does not limit the time within which a beneficiary insurance company may perfect its proceedings in error, but is only an enumeration of acts for the violation of which proceedings shall be instituted by the proper authorities to oust it from doing business, and that until such proceedings have matured into a final judgment of ouster it may legally proceed with the transaction of its business.

The legislature determines what privileges shall be granted and what duties shall be imposed upon corporations created by it, and so long as these privileges or duties do not impinge upon any principles of the fundamental law the only duty of the court is to interpret and apply them. In the creation of corporations of the class to which the plaintiff in error belongs the legislature, for reasons of its own, deemed it expedient to limit the time within which such corporations should pay or appeal from judgments rendered against them. Under the provisions of the statute, if the judgment be not paid or appealed from within sixty days from its rendition the association confronts two conditions: It is denied the right of appeal from that judgment, and an action of ouster will lie against it. This was the interpretation placed on the provision in Modern Woodmen v. Heath, supra, and we are satisfied that the statute was properly interpreted.

The plaintiff in error challenges the constitutionality of section 3580 of the General Statutes of 1901, contending that it violates section 1 of the fourteenth amendment to the federal constitution. Under the general provisions of our statute relating to proceedings in error the petition in error may be filed in this court at any time within a year after final judgment. In the present case, if the plaintiffs had been unsuccessful they could have prosecuted proceedings in error to this court at any time within one year, while under the construction placed upon this section in Modern Woodmen v. Heath the plaintiff in error must commence its proceeding in this court within sixty days from final judgment. Therefore it is contended that the plaintiff in error is denied "the equal protection of the laws."

The act under which the plaintiff in error was incorporated was...