88 So. 883 | Miss. | 1921
Lead Opinion
delivered the opinion of the court (after stating the facts as above).
The first question presented for decision under the assignments of error is Avhether the revenue' agent has a right
“There is hereby established in this state a separate and distinct department of insurance, which shall be charged with the execution of all laws now in force or which may be enacted hereafter, relative to all insurance, including indemnity or guarantee and other companies, . . . associations or orders placed under this department.” 1
Section 2554, Code of 1906 (section 5018, Hemingway’s Code), reads as follows: .
“The commissioner shall be vested with all the powers, and charged with all the duties, and subject to all the obligations and penalties now vested in, conferred and imposed upon the secretary of state, auditor of public accounts, state treasurer, or any. other officer charged with the execution of laws relative to subjects recited in the first section of this chapter.” , .
Section 2561, Code of 1906 (section 5026, Hemingway’s Code), reads as follows:
“Whenever it shall appear to the commissioner from any report submitted or examination made undér the provisions of this chapter or otherwise, that any of said companies or orders has failed to comply with the law, or if it, its officers or agents, refuse to submit to examination or to perform any legal obligations in relation thereto, or that its condition is such as to, render its further proceeding1 hazardous to the public or its stockholders or policy holders, it shall be the duty of the attorney general, or the district attorney under his direction, on notice by the commissioner to institute' such proceedings as are authorized by law and to prosecute1 the same to final judg*401 ment, and the commissioner shall also revoke or suspend all certificates of authority granted to such concern or its agents to do business in this state, as hereinafter provided.”
It is the contention of the appellant that under these sections the insurance commissioner has been vested with the exclusive power of bringing suits to enforce statutes which are obligatory upon insurance companies; that the language of these statutes, construed in the light of the numerous powers conferred upon the insurance commissioner to regulate the business of insurance companies, and to grant license and revoke license, conferred upon him the exclusive power to deal with these subjects.
The suit was brought for a violation by the insurance companies of the provisions of chapter 145, Code of 1906, and amendments thereto (chapter 69, Hemingway’s Code).
By section 5004, Code of 1906, as amended by the Laws of 1910, chapter 222 (section 3286, Hemingway’s Code), it is made the duty of the district attorney and of the attorney general to enforce these laws and to recover the penalties for the violation of these laws. Section 3286, Hemingway’s Code, reads as follows:
“Any person, corporation, partnership, firm or association, or any representative or agent thereof, violating any of the provisions of 'this chapter, shall forfeit not less than twenty dollars nor more than five thousand dollars for every such offense, and each day any person, corporation, partnership, firm, or association, shall continue to do so, shall be a separate offense; and the penalty in such cases can be recovered by the state on the relation of the attorney general or district attorney; and it shall be the duty of the several circuit judges to specially call the attention of the grand juries to this. provision; but no prosecution, pain, penalty or forfeiture for offenses committed under laws already existing át the time of the adoption of. this act, shall be in any wise remitted, released or taken away by reason hereof or anything herein contained, but the same shall be proceeded with, adjudged,*402 imposed and inflicted in conformity with laws already existing and in conformity with all the provisions of chapter 145, Code of Mississippi of 1906, which may he constitutionally applicable thereto.”
The statute above quoted placed the enforcement of the Anti-Trust Laws upon the attorney general and district attorney specifically without reservation or condition, and, in our opinion, this action is not dependent upon the direction of the insurance commissioner.,
By section 4738, Code of 1906 (section 7056, Hemingway’s Code), the state revenue agent is given power as follows:
“The state revenue agent may appoint a sufficient number of deputies.,. He shall have power and it shall be his duty to proceed by suit in the proper court against all officers, county contractors, persons, corporations*, companies, and associations of persons for all past-due and unpaid taxes of any kind whatever, for all penalties or for-' feitures for all past-due obligations and indebtedness of any character whatever owing to the state or any county, municipality or levee board, and for damages growing out of the violation of any contract with the state or any county, municipality, or levee board, and shall have a right of action and may sue at law or in equity in all such cases where the state or any county, municipality of levee board has the right of action or may sue. And in all cases of valuation or ownership of property which has escaped taxation, may have subpoenaed witnesses to testify before the board of supervisors, board of mayor and aldermen or levee board.”
It will be noted by the express terms of this statute that the power of the revenue agent extends to bringing suits “for all penalties or forfeitures,” and this court in Dukate v. Adams, Revenue Agent, 101 Miss. 433, 58 So. 475, expressly held that the provisions of the statute on trusts and combines conferring power upon the attorney general and district attorney to bring suit and enforce the AntiTrust Laws was not exclusive, but that under the sec
By section 2650, Code of 1906 (section 5116, Hemingway’s Code), it is provided: “Compliance with the provisions of this chapter, as to deposits, obligations and prohibitions, and the payment of taxes, fees and penalties by and upon foreign insurance companies, may be enforced by the commissioner by suit in the- name of the state.”
It will be noted that this power to bring suit is limited to certain specified subjects, and such subjects as are dealt with in the provision of the chapter on insurance. It is a general rule of construction that the enumeration of jpowers in a section will be held to exclude all powers not enumerated, and the insurance commissioner’s power to bring suit in the name of the state is measured by the terms of this statute. He may also give direction under the provisions of section 2561, Code of 1906, (section 5026, Hemingway’s Code), to the attorney general or the district attorney as to the things therein provided, for.
In our opinion the powers conferred upon the insurance commissioner have no relation to the bringing of suits for violation of the Anti-Trust Laws. The Anti-Trust Laws are not germane to the subject of insurance. They are wholly unrelated, and, though insurance companies may violate the Anti-Trust Laws, that does not change the relation of the two chapters. They deal with different subjects. No. doubt it would be proper for the insurance commissioner to call attention of the attorney general or of the district attorney to the fact that the Anti-Trust Laws were
There are many instances in the law where several different officers may institute a suit to represent the public. For instance, a board of supervisors may institute suits on behalf of the county; a district attorney has also power to bring suits on behalf of the county. The attorney general also may bring a suit on behalf of the county, as may also the revenue agent. In most of these cases each of these officers has the power to bring the suit, and as said in the case of Robertson, State Revenue Agent, v. Bank of Batesville, 116 Miss. 501, 77 So. 318, the first officer having the power to bring the suit has the right to conduct the litigation so long as he acts in good faith.
In certain cases the county treasurer is given the power to sue on behalf of the county; the board of supervisors also has the poAver, the district attorney has the power, and the revenue agent has the power. Indeed the state revenue agent’s office was created expressly for the purpose of bringing suits that other officers could bring, but had neglected to bring, resulting in loss to the state, counties, and municipalities; and if the court should construe all statutes which give an officer power to sue as being exclusive, w,e would put the revenue agent out of business, contrary to the intention of the legislature and the public.
Again it is insisted that insurance .is a business charged. with a public use, and that it does not, for that reason, come within the purview of the statute in' reference to trusts and combines. It is hard to reconcile this contention with the express provisions of chapter 119, Laws of 1908 (section 3282, Hemingway’s Code), which expressly prohibits the fixing or limiting of prices or pre
It is next insisted that the court was without.authority to appoint receivers, and that it had no jurisdiction to do so. It will be noted from the statement of facts that the Revenue Agent sued out an • attachment in chancery under section 536, Code of 1906 (section 293, Hemingway’s Code), and that certain agents in the state having moneys, property, and effects of the insurance companies were made defendants, to the suit, and effects in their hands were impounded by the process so served. It would also appear from the statement of facts that the defendants had appeared and answered and submitted themselves to' the jurisdiction of the court, and therefore the court had full jurisdiction over the defendants, and had the power of rendering a final judgment against each of the defendant insurance companies. It will also appear that after the filing of the bill and the answer the insurance companies were withdrawing their assets from the state, and had discontinued business in the state, having withdrawn from the state, as shown by their answer to the amended bill.
It is insisted that the word “penalties” is not embraced in the language of section 536, Code of 1906 (section 293, Hemingway’s Code), and that therefore an attachment, did not lie in chancery, and the court was without jurisdiction. This section reads as follows:
“The chancery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of any contract, ex*406 press or implied, or arising ex delicto against any nonresident, absent or absconding debtor, who has lands, and tenements within this state, or against any siich debtor and persons in this state who have in their hands effects of, or are indebted to, such nonresident, absent or absconding debtor. The court shall give a decree in personam against such nonresident, absent or absconding debtor if summons has been 'personally served upon him, or if he has entered an appearance.”
The attachment lies under this section upon demands founded upon any indebtedness, whether the same be legal or equitable. It is contended that the word “indebtedness” does not embrace a statutory penalty. We think this court has settled this contention adversely to the appellant by the case of W. U. Tel. Co. v. Sullivan, 70 Miss. 447, 12 So. 460. In that case the statutory penalty was sought to be recovered in a justice of the peace court, and it was contended that the justice had no jurisdiction because- the jurisdiction was not in terms applicable to penal' statutes. The penalty there sought to be recovered was twenty-five dollars, and the justice’s jurisdiction was limited to fifty dollars. The court in its opinion said:'.
“The language of the clause,' ‘founded on any penal statute,’ contained in the Code of 1857, was left out of that of 1871, not to deprive justices of the peace of such jurisdiction, but because it was unnecessary to retain this language, in view of the very comprehensive terms em-' ployed by the section, which was manifestly designed to enlarge and extend, and not circumscribe, the jurisdiction of these magistrates. The word ‘debts’ embraces penalties recoverable by civil action. In its largest sense, it signifies anything for which one is liable or bound to another, or which may be exacted of one.”
In the case of Dollman v. Moore, 70 Miss. 267, 12 So. 23, 19 L. R. A. 222, it was held that, independently of the statute, by virtue of its general equity powers, the court may, without a judgment at law and nulla bona return, subject to the demands of creditors the effects in this
In the case before us the court had jurisdiction of the defendants generally at the time of the appointment of the receivers, and its power to appoint receivers was not dependent upon the rightfulness of the attachment sued out; that is, not dependent upon the question of the statutory jurisdiction. It had jurisdiction both of the demand and of the person, and the court undoubtedly had power to prevent the defendants from withdrawing their property from the state so as to defeat the execution of any judgment it might render. Under the agreed statement of facts some of the agents were insolvent, and a judgment against them would have been fruitless. They were send-, ing the funds coming into their possession out of the state, and it is possible that the judgment would not have been collected, if rendered, if this practice continued. 23 R. C. L., p. 9, section 3; page 13, section 7; 34 Cyc., pp. 17, 19.
The statute on trusts and combines expressly gives the ehancéry court jurisdiction and power to appoint receivers. Of course the power to appoint receivers may be considered to depend wholly upon the proper facts existing to Avarrant the court in so doing.' But Ave think the facts here warranted the court in making the appointment. We do not, think the power to appoint receivers is ■ limited to chapter 213, LaAvs of 1914 (section 4086, Hemingway’s Code), and chapter 142, Laws of 1912 (section 4087, HemingAvay’s Code), but that the power exists Avhenever it is necessary to preseiwe the subject-matter of the litigation Avliile the same is pending.
It is contended that in no vieAy.Avas this a proper case for the appointment of a receiver, because it' is contended
It is contended that, inasmuch as according to the view of the appellant the "suit only bound the effects in the hands of the agents at the time of the service, they had a right to remit out of the state; and that the insurance companies had the right »to withdraw from the state all moneys collected between the service of the attachment and the return day, or between the service of the attachment and the date of filing the answer; and that, having this right, the court was not warranted in appointing receivers and directing the agents to turn over to the receivers the funds' collected subsequent to the service of
The appellant takes the position that the attachment served on the agents did not bind the accounts- for premiums unpaid, but which had been contracted prior to the service of the attachment. In section 537, Code of 1906 (section 294, Hemingway’s Code), it is provided that the service of the process in the manner therein stated “shall bind the effects or indebtedness from the time of such service.” The appellee contends that the service not only binds the effects, etc., in the hands at the time of the process, but also all effects, etc., that come into the hands of the agents between the service and the return day.
We think the effect of the service of process is to bind all the effects of the non-resident defendants in the hands of the resident defendants at the time of the service, and at least until answer has been filed, or, if no answer is filed, until the return day. We think that it includes and binds the ■ premiums due upon policies written prior to1 the service of the process but which were collected subsequent to the service of the process. These books of accounts and evidences of debt constitute effects. The word “effects” is a word of very broad signification, and is broader than the word “goods.” It is broad enough at least to cover all personal property. See Words and Phrases, First and Second Series, and Bouvier’s Law Dictionary, title, “Effects.”
Under the chapter on Process it is provided that money, bank notes, bills, evidences of debt, circulating as money, and any judgment or decree belonging to the defendant, may be taken under an execution «or attachment, and sold or disposed of according to the law, and applied to the payment of the execution or in satisfaction of the judgment in attachment. Section 3968, Code of 1906 (section 2975, Hemingway’s Code). By section 3969, Code of
The attachment lay?s have in some cases been construed strictly by this court and in others as remedial and therefore liberally. They seem to partáke'of the nature of both remedial statutes and penal statutes. In some sense they are remedial, to be liberally construed, and in other respects as penal to be strictly construed. But, whether they are to be construed strictly or liberally, the court is to give such interpretation as would further the intention of the legislature.
We think in the present case the right to attachment existed on the allegations of the bill, and that the suit comes within the terms of the statute. It is argued that the statute does not apply, because the defendants are not nonresidents within the purview of that section, because they may be served personally with process and personal judgment rendered against them by serving process upon the insurance ^commissioner, who is by statute made the agent of the insurance companies for that purpose, and that that was done in the present case. It is true they may be served with process by serving the insurance commissioner, but nevertheless they are nonresidents, and a judgment for penalties cannot be imposed ágainst them beyond the jurisdiction of this state. In other words, the state could not go into the state of the domicile of the corporations and sue them in personam and get a judgment and levy execution upon the judgment obtained in cases like the present in the state of Mississippi. That being true, the attachment will lie, and the effects in this state may be seized and held to await such judgment as may be rendered. '
The judgment will be affirmed, and the cause remanded to be prbceeded with.
Affirmed and remanded.'
Dissenting Opinion
(dissenting).
I dissent from the majority opinion. The court holds that under section 4738, Code of 1906 (section 7056, Hemingway’s Code), giving the Revenue Agent the right to sue for and recoVer all penalties and forfeitures due the state, any county, municipality, or levee board, and section 5004, Code of 1906 (section 3286, Hemingway’s Code), which is a part of the chapter on Trusts and Combines, which, among other things, provides that the penalties therein denounced for violation of the Anti-Trust Statutes “can be recovered by the state on the relation of the attorney general or district attorney,” the state revenue agent and the attorney general, or proper district attorney, had the concurrent right to bring this suit.
In my judgment the state revenue agent had no such right under the law; that under the provisions of section 2561, Code of 1906 (section 5026, Hemingway’s Code), and said section 5004, Code of 1906 (section 3286 Hemingway’s Code), the attorney general or district attorney, on the advice of the insurance commissioner, alone had the right to bring it. And in order to so hold it is not necessary to trench on the decision of this court in the case of Duhate v. Adams, 101 Miss. 433, 58 So. 475, which was not an antitrust suit growing out of the insurance business, but a suit by the state revenue agent to recover penalties for an alleged violation of our anti-trust statutes, in that it was charged that the defendants in that case had agreed and conspired together to control the trade in this state in sea food. The court held that the revenue agent had the right to bring that suit.
In order to reach a correct conclusion on this question a consideration of the main purpose and intent of our insurance statutes is necessary; and to that end it is probably well to take a brief view of the subject of insurance, its importance, and how far it is affected with a public interest.
There are many different kinds of insurance. There is ■fire, life, accident, employer’s liability, surety, health, title
“The business of insurance is the outgrowth of time and', the demands and necessities of the public. It extends into- and covers almost every branch of business and all the relations of life, and is applied to all the hazards of business in life where a basis of risk and compensation can be-estimated. In all the stages of life, from the cradle to the-grave, it asserts an interest and offers succor and aid. In the business enterprises, whether by land or sea; in the possessions of men, from a pane of glass to the mansion or the*413 factory; in his undertakings involving every chance, misfortune, moral turpitude, or the act of God — it demands admission and promises indemnity, reward or gain. It poses as the faithful and zealous trustee of his earnings and savings, and promises to the widow and orphan a guarantee against misery and want. It intercedes between principal and agent, master and servant, contractor and owner, and insures against loss from almost any and every cause. It is a public necessity that deals in its own credit for a cash consideration from the assured, and is stamped with public, interest, and must yield obedience to necessary and proper regulations by the state in the exercise of its police power.”
And in Insurance Co. v. Lewis, 233 U. S. 389, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189, the supreme court of the United States said:
“Indeed, it may be enough to say, without stating other •effects of insurance, that a large part of the country’s wealth, subject to uncertainty of loss though fire, is protected by insurance. This demonstrates the interest of the public in it, and we need not dispute with the economist that this is the result of the ‘substitution of certain for uncertain loss’ or the diffusion of positive loss ■ over a large group of persons, as we have already said, to be certainly one of its effects. We can see, therefore, it has come to be considered a matter of public concern to regulate it, and governmental insurance has its advocates and even its ■examples.’*
It is doubted if any other branch of business, except transportation by railroad, is as largely affécted with a public interest as that of insurance. Confronted by these conditions, and realizing the public necessity therefor, the legislature established a separate and distinct department ■of the state government, known as the department of insurance, under the control of an insurance commissioner. The legislation on the subject will be found in chapter 125, Hemingway’s Code, and statutes enacted since the publication of Hemingway’s Code. Chapters 157, 190, Laws of
It should be borne in mind that our anti-trust statutes declare a most important public policy of the state, their object being to guarantee to the people freedom of trade and commerce. Section 5004, Code of 1906 (section 3286, Hemingway’s Code), of the chapter on “Trusts and Combines,” expressly places the enforcement of these statutes in the hands of the attorney general and the district attorneys; it provides that the penalties therein denounced are to be recovered in the name of the state) on the relation of one Of those officers. It is true that section 4738, Code Of 1906 (section 7056, Hemingway’s Code), as held in Dukate v. Adams, supra, is broad enough to authorize the revenue agent to maintain this suit. But those statutes should be construed in connection with the object and purpose of the insurance legislation as a whole, and should also be considered along Avith the first section of the Code chapter on Insurance (section 2550, Code of 1906; section 5014, Hemingway’s Code) as follows:
“There is hereby established, in this state a separate and distinct department of insurance, which shall be charged with the execution of all laws now in force or which may be enacted hereafter,'relative to all insurance, including’' indemnity or guarantee and other companies, corporations, associations or orders placed under this department.”
And section 2561, Code of 1906 (section 5026, Hemingway’s Code), provides: . ■ .
“Whenever it shall appear to the commissioner from any report submitted or examination made under the provi*415 sions of this chapter or otherwise, that any of said companies or orders has failed to comply with the law, or if it, its officers or agents, refuse to submit to examination or to perform 'any legal obligations in relation thereto, or that its condition is such as to render its further proceeding hazardous to the. public or its stockholders or policy holders, it shall be the duty of the attorney general, or the district attorney under his direction, on notice by the commissioner, to institute such proceedings as are authorized by law and to' prosecute the same to final judgment, and the commissioner shall also revoke or suspend all certificates of authority granted to’ such concern or its agents to do business in this state, as hereinafter provided.”
So construed it seems; plain that, so far as the enforcement of the anti-trust statutes against insurance compa.nies is concerned, the matter is left exclusively in the hands of the attorney general and district attorneys under his direction, on the advice of the insurance commissioner; therefore the revenue agent had no authority to sue. This certainly ought to be the law. The attorney general is the chief law officer of the state. He is a constitutional officer. He ought to be able to determine for the people of the state whether the anti-trust laws have been violated. The state revenue agent is not required to be a lawyer, 'and the main object in establishing the office was to gather in the delinquent revenues belonging to the state and its political subdivisions, and not to enforce in the courts the great public policies of the state. Our anti-trust statutes were not intended as revenue measures; the penalties provided are merely incidental to the controlling purpose of prohibiting unlawful agreements and combinations in restraint of trade and commerce. If the revenue agent had the power to bring this suit, then he has the authority to absolutely destroy the whole plan and scheme of the insurance department, and which might come about'as the result of an honest difference between himself, the attorney general, and insurance commissioner. Surely the legislature did not intend to set up the revenue agent over
It might be well to revert to some well-established rules of statutory construction in tliis connection. A construetion productive of inconvenience to the community is to be rejected, unless the language does not admit of a different construction. Eskridge v. McGruder, 45 Miss. 294; Bonds v. Greer, 56 Miss. 710. Courts in construing a doubtful statute will adopt that construction which is just and equitable, and consistent with the public policy of the state, in preference to one which is contrary to that policy. Shelton v. Baldwin, 26 Miss. 439. An unjust or unwise purpose in a statute will not be imputed to the legislature when any other reasonable construction will avoid such a result. Bunn v. Clinghan, 93 Miss. 310, 47 So. 503.
It cannot be said that the insurance commissioner has nothing to do with the anti-trust statutes, for chapter 313, Laws of 1920, which amends these statutes, section 5005, Code of 1906, as amended by chapter 223, Laws of 191j0 (section 3287, Hemingway’s Code), expressly authorizes him to determine whether it is against the public interest for foreign fire and marine insurance companies which own stock in each other, to do business in this state; and he is given the power to refuse or revoke the license of such companies if in his judgment it would promote the public welfare to do so. Suppose under, this amendment the insurance commissioner should investigate a lot of foreign fire insurance companies owning stock in each other, desiring to do business in this state, and should decide that, notwithstanding such ownership of stock, they ought to be licensed, and accordingly did so, and thereupon the revenue agent should upon , investigation decide that said
Take another illustration: Suppose in the concrete case now before the court, the insurance commissioner and the attorney general had investigated the facts and decided that the insurance companies sued were not violating the anti-trust laws, and therefore not subject to suit; and thereupon the insurance commissioner had invited them into the state and licensed them to do business, but that the revenue 'agent, differing with them, brought this suit; and concede that the companies had violated the law, and therefore the attorney general and insurance commissioner were mistaken in their judgment, and the revenue agent was right, and the court should so decide; still the result would be a complete overthrow of the supervisory authority and power of the insurance commissioner over the business of insurance conferred by law. And what would become of the first section of the Code chapter on Insurance, which declares:
“There is hereby established in this state a separate and distinct department of insurance, which shall be charged with the execution of all laws now in force or which may be enacted hereafter, relative to insurance,” etc. ?
It is hardly believable that the legislature intended to make possible such conflict of authority, and such results.
Section 2650, Code of 1906 (section 5116, Hemingway’s ■Code), does not militate against this view; on the.other hand, it is persuasive in favor of it. That section (part of the chapter on Insurance) is in this language:
“Compliance with the provisions of this chapter, as to deposits, obligations and prohibitions, and the payment of taxes, fees and penalties by and upon foreign insurance*418 companies, may be enforced by the commissioner by suit in the name of the state.”
It will be seen that it simply provides that the insurance commissioner shall sue in the name of.the state (not on any and all causes of action growing out of the insurance laws)-to enforce compliance by the companies with the requirements of “this chapter,” meaning, of course, the chapter on Insurance, “as to deposits, obligations and prohibitions, and the payment of taxes, fees and penalties,” and by its express terms it only applies to foreign insurance companies. This section, construed in connection with section 2561, Code of 1906 (section 5026, Hemingway’s Code), copied above, mates it plain that as to all other public suits against insurance companies they must be brought by the attorney general or appropriate district attorney under his direction, on the advice of the insurance commissioner; and these two sections, read in connection with section 5004, Code of 1906 (section 3286, Hemingway’s Code), Which provides that penalties incurred through violations of the anti-trust statutes shall be sued for in the name of the state by the attorney general or district attorney, would seem to put it beyond cavil.
It will be seen that the majority opinion refers to Dukate v. Adams, supra, as authority for holding that the revenue agent had the right to bring this suit. It has been shown above the difference in the facts of that case and this; that that was not a suit based on a violation of the anti-trust statute growing out of the insurance business. If it were necessary, in order to hold that the revenue agent had no right to bring this suit, to overrule that case, the writer would favor doing so, because in his judgment it was decided wrong. Section 5004, Code of 1906 (section 3286, Hemingway’s Code), conferring the right in specific'terms on the attorney general and district attorneys to enforce by appropriate suits our -anti-trust statutes is a highly. penal statute, and is to be strictly construed in all of its provisions. It plainly and specifically names the officers authorized to sue; while section 4738, Code of
I am authorized to say that Judge Sykes joins me in this dissent.
