*1 .¿Etna 445 Co. v. Insurance Jones. Term, 1907. with the idea that the absence of the cash book be would as a regarded forfeiture of the policy.
The render foregoing conclusions overrule necessary in each exceptions case. of the Circuit in judgment Court each above named cases is affirmed.
Mr. Woods, I dissent on the dissenting. ground Justice that there was no evidence of waiver the non-waiver agreement. All the acts relied on to constitute waiver contract were done after the execution of the contract investigating loss, nature extent and were covered expressly non-waiver agreement. 2,
November Curiam. After careful consid- Per eration of the herein, rehearing petition 6 Court is satisfied no- material issue of law
fact has been disregarded. overlooked or is therefore ordered, It petition dismissed and of remittitur stay heretofore be and is granted revoked. hereby
6702 JONES, AETNA FIRE v. INS. CO. COMPTROLLER. act, stat., Power —Taxation.-—The
Constitutional Law —Police providing collecting from the fire doing incorporated business in the cities and towns of this State a tax of every two dollars on one hundred premiums dollars in collected annually them municipality and paying the fund to certain associations, benefits, gratuities firemen’s and pensions, is uncon- stitutional, tax, in that it is not a uniform it is not levied for a Ill, public purpose, and it violates art. sec. 32 of the Constitution prohibiting granting pensions except for military, naval service. Nor can it be sustained on ground Legislature has the authority to pass police power it under the of the State. ¿Etna
Argument Counsel. C.S. *2 ¿Etna Co.; Insurance Petition Fire Hamburg-Bremen Co.; Co.; Co.; Ins. Ins. Hartford Fire Fire Ins. Home Co.; Co.; Home Ins. Wil- Fire Ins. North Carolina Royal Co.; Co.; Mil- Ins. Fire Ins. City Rutgers liamsburg Globe Ins. Co.; Mechanics Ins. Providenoe-Washington waukee A. Ins. Co. for W. injunction against Co. Germania Comptroller General. Jones Frost, Smith, Little, & Messrs. & Spalding King, Lee more may Alex. cite: One or for C. King, petitioners, C., 513; all: 4 in a this kind beneñt join petition S. for 162. This action is 448; C., 310; C,, C., 13 54 76 S. S. S. A., 829. 20 R. brought against properly L. defendant: 277; 1 Pom. Eq. Jur., juridictioh: Has court equity C., 311; 414; C., 520; 11 23 1902, 412, 413, 4 S. Code S. than one 213. The act relates more C., 70; C., 35 S. S. Ill, 17, Con.; not 20 its title: Art. sec. subject expressed 544; S., 466; 464; Ga., 827; 132 U. 104 C., 18 A.,R.E. S. 699; Col., 401; An., 54; C., 47; 142, 26 16 14 Ga., 99 S. La. 191. Power to tax 295; Pa., 657; Mich., Mich., 89 64 85 I, 1; 5, 13, Ill, Art. cannot Art. secs. Con. be delegated: sec. cannot IV, S.; C., 15. 1895; of U. 30 S. Art. Con. X, VIII, 6; tax Art. sec. Art. municipal purposes: levy 771; 1895; 380; 5, R., R., Pac. 50 N. 15 W. sec. Con. This tax is not warranted 244; R., 34 N. W. 997. G., 71 S. 1895; 1902, Art. X of Con1. Code 325 to constitution: 99; Wall, 663; 715; Y., 20 106 331; Dec. 64 N. 88 Am. St, 82; 872; 19 Fev. R., C., 62. S., U. 500; 39 Pa. 23 S. 771; An., 802; R., 12 39 Tax not 50 N. W. La. uniform: unconstitutional St, provides Act is because Pa. 73. XIII, Ill, I, 5; 32; art. Art. sec. art. sec. sec. pensions: 572; R. McC., 304; 62; A., 1895; C., 56 S. 2 75 L. Con. 179; C., 45; 1099. This R., A., 66 45 S. S. 63 R. W. L. winch corporations may is not a condition foreign act 832; in this A., Dec., 20 R. do biisiness 86 Am. State: L. S., 270; S., 285; 401; R., 199 114 236; U. U. 27 Ct. Sup. act S., 452. Is the public 74 contrary policy? 180 U. 447 íEtna Term, AprE 1907. Am. Dec., 119. The act whole is unconstitutional: 114 U. S., 304; 99; S., R., 100 U. N. 994. 71 W. Collection tax under 807; unconstitutional act 59 Ga., enjoined: S., 531; Ga., 97 U. 16 J. Fraser
Attorney-General Lyon Messrs. Von Kol- nits & and Mitchell Smith, & No Waring contra, cite: fed- eral 28; S., here S., involved: 177 U. 202 U. 246. Is C., 476; 309; act too broad title: 21 11 C., S. S. C., 427; C., 135; 23 415; 36 C., C., 487; 58 S. S. S. S. C., 449. The act not delegation legislative *3 Y., 311; 92 N. 140 111.,653. authority: The act is a police So., 843; 313; 23 93 provision: Y., Y., N. 51 N. 949. 6,
November 1907. The of this opinion Court was deliv- ered by This is a to this petition Pope. Mr. Chief Justice
Court in its original juridiction. insur whereby plaintiff ance companies, for themselves situation, and others in like seek to have the comptroller-g'eneral enjoined from proceed to collect certain ing taxes an provided Act of the by General 9, Assembly 1906, Stat., 620, approved 25 May on ground unconstitutional, said act is null, and void. Counsel for petitioners discuss at length prelimi question as to the nary jurisdiction of this Court to hear the cause, but an been having passed upon identical the recent case of Ware Mfg. Jones, Shoals Co. v. Comp General, ante, troller we proceed once to the merits of the case. act title of is : “An act requiring of payment
certain to the fire premiums of departments incorporated cities and towns the fire by insurance companies busi- doing State, ness in the for the a fund for the creating benefit of the members of the fire departments such cities towns, and and collection providing and distribution same.” "the
448 ¿Etna
Opinion of the Court. “Be it enacted The act is as follows: Section Every General Carolina: Assembly State South or association doing fire insurance corporation company, State, of this hav- business in or town any incorporated city fire or that hereafter have regularly organized ing council, or under the control mayor town, council of said or and having intendant and city and neces- serviceable condition for fire duty apparatus fire thereto to the value sary equipments belonging ($1,000) 'dollars, return to the one thousand shall upwards, true oath account verified Comptroller just General a true of all received premiums same is account fire insurance done in such cities incorporated from business 31st, December or towns during year ending such thereof as have such transacted portion they may business in such cities and returns must be towns. Such or associations made said within companies, corporations 31st after the December each sixty days day year.” within the said requires 2 Section pay Treasurer the sum' of two on sixty days to dollars hundred dollars collected on premiums one fire every insurance business done in said and towns. cities lightning' *4 and said insurance to- require keep Sections of account of in books all business -done said cities accurate and and for failure so to provide penalty towns do. that in 5 enacts case of failure to tax said pay
Section or the imposed, General shall have any penalty Comptroller to revoke issued to said com- power any previously license panies. 6. “The Treasurer shall over the pay
Section/ State the collected from money companies, insurance associations or business within the cities corporations doing or towns or that hereafter have a having regularly organized may in act, fire as aforesaid section 1 of this to- the department the firemen’s Relief treasurer of Association to be composed of the members such departments of cities or fire towns, to be State; and under the laws of this .incorporated
íEtna Term, 1907. the Provided, all so collected insurance money from or associations business companies, corporations doing the within cities or hereafter have towns or that having may in such paid department, which being department their members for full time or of time em- paid part firemen, all ployed and on all times to. respond duty accordance, them, duties of and required otherwise with of act, section of this shall be provisions paid ihe Treasurer to treasurer of such and all the city, so received shall be set and used such cities money apart or entirely and and of solely objects towns purposes this act by the Firemen’s Relief Association or Board of Trustees of Firemen’s Pension funds of cities or such towns under such provisions as shall 'be made mayor or council board of trustees thereof. 7. “All collected received under the
Section money act shall be provisions held trust and used as a for the relief fund member fire department any such or town city may injured disabled, who be and for of, relief to the widow or payment gratuities dependent those member of such upon fire any department killed; who funeral payment necessary of such expenses any member fire and for the department, purchase members of such accident fire department; Provided, that the boards of tras- further, of such cities pension tees funds having- may also said use to* pensions superannuated disabled firemen: Provided, fire of such or town city also be should a member of State Firemen’s Association of this State.”
The act is attacked on numerous but think grounds., we has question is, pivotal General Assembly power words, enact In other legislation. is the constitution in that tax here violated under consideration is not urn- *5 and for no form’ That public purpose. an imposition is exercise of the attempted taxing power conferred by constitution, the respondent admits that practically
29 —78 .¿Etna v. the Court. of
Opinion a is for that it on the ground the exaction to sustain sought Dic to Webster’s tax,” according “A public purpose. the person assessed on of “is a rate or a sum tionary, use of for the a citizen government or property Limitations, in his Constitutional Cooley nation or state.” imposed or charges burdens “Taxes are says: sec. raise money to or property persons upon legislature rules of these either Applying public purposes.” aid conceded that the if it be in question, here legislation under head falls it clearly purpose, is a public of firemen fulfilled, namely, are taxation, of the requirements all property govern on persons it is an imposition In Henderson v. In the case a purpose. for public ment a A., 827, where R. C. (Ind.), surance L. consideration, it is said that under identical was almost are such impositions holds that authority weight decided Ins. v. Francisco taxation, the cases of San attempts 563; Neb., Phila Wheeler, 33 113; Cal., v. Co., 74 State Firemen Disabled Association delphia Relief of Co., 12 Ins. 73; St., v. Merchants La. Wood, 39 Pa. that view. as An., 802, sustaining are quoted however, imposi- contends, here respondent The which tax, conditions a is one is not but tion business to do are permitted foreign sus- contention, think, cannot be we in this Such State. both applying the act is general, Tn the first place, tained. In the second place, foreign corporations. domestic It applies conditional. to be not purport does act itself or association corporation company, fire insurance “every in this or towns cities State.” incorporated ini business doing as throwing light here is important “doing” The participle implies The word the Degislature. the intention on are carrying in existence already corporations True; the act issued. already has license on business. certificate circumstances, the under certain provide does a means for merely this as revoked, regard but we shall con- and not the imposition collection securing *6 V. 451 iETNA INSURANCE JONES.. Term, dition subsequent. That im have Legislature might posed1 such a condition as corporations, as well foreign domestic corporations, decide; it is not our here to duty suffice it to say that no such condition was imposed.
Again, respondent contends enact present ment is a lawful exercise of the police power, inherent as a State the exercise sovereignty, looking protec tion of the of all the citizens of property Perhaps State. no subject is more fraught with than is the difficulty proper* and limiting of the defining of a police power sovereign State. courts refuse Generally definition, attempt each leaving case to be decided it State, arises. In our however, in the comparatively recent case of v. Stehmeyer Council, C., 259, 282, City S. where this is power dis cussed at and length numerous reviewed, authorities the court with deference lays down “The following: police power attribute of State, in a sovereignty which it clothes the with Legislature power regulate to. persons and artificial —and in accord property, —natural ance with the provisions of the Constitution, in all matters health, relating public morals, the public and the public safety.” in the Again, case of Beer v. Company Mass., S., 97 U. it 25-33, is said: “Whatever difference opinion may as to exist the extent and boundaries police power, however difficult be to render a sat isfactory it, definition there seems to be no doubt that it does extend to the protection, health and property citizens, and to the preservation order and good public morals.”
In Volume 938, of the page A. & Ency. E. Law following sustained proposition much is laid authority “In down: order that a statute or ordinance bemay sus- tained as an exercise of the police power, courts must be able to see (1) enactment has for its object prevention of some offense or evil, manifest or the preserva- tion of health, morals, the public safety, welfare; or general clear, there some (2) real substantial connection ¿Etna Co. INSURANCE
Opinion of the Court. the enactment and between assumed do in some thereof, that the latter actual provisions *7 tend towards the manner appropriate plain, appreciable, the is exer- which object power accomplishment for the cannot be used as a cloak cised. The police power can neither or private property, invasion of personal rights the exclusive it exercised for or for be private purposes, In other of individuals or classes.” benefit particular the of words, exercise have in view the good the must a citizens of the as whole. sovereignty not us as to or This then to the whether brings here has in a public the under consideration view legislation from the on imposition purpose. secured in trust and as insurance is to “be held used companies of member of the of any department fund the relief fire disabled, and for city may injured such or town who be of, relief of widow or payment gratuities,'to fire member of dependent upon department those such any funeral killed, who be for the of payment necessary of member of such and for expenses any fire of accident insurance the members of purchase upon fire ini certain used cases be departments” York and Alabama and payment pensions. of New perhaps States, one or two other proceeding upon theory is a which prevention conflagrations public duty fire to the establishment of devolved prior departments upon that in these duties the fire community, discharging become, men sustain such relation to the as to in the public sense, servants, true have sustained the public position such enactments are for Trustees public purposes. Ex Y., 313; Roome, Firemen’s Fund v. 93 N. Benevolent empt Phoenix Assurance v. Fire Company Department London cases, In So., 843. each of these how Montgomery, ever, the was sustained on legislation ground comp conditions which provided upon foreign on business permitted would be in the carry State. anies The above as reasoning publicity Co. V. iETNA INSURANCE JONES. Term,
such enactments was considered and expressly repudiated Co., in the case of Indiana Court Henderson v. Ins. by A Associa Philadelphia like view maintained supra. Wood, tion the Court uses this language, where supra, for this. 81: “Of course there was motive page good The relief of the firemen is a disabled purpose worthy And firemen contribute much to save insurance society. from losses. And hence it is inferred that insur ance to contribute to the of those companies ought support who have been for their benefit. But disabled working used as a argument might quite effectually same reason for a burden in favor of this imposing society, upon insurance, those obtain much more those who who *8 Therefore, do not insure at all. since the chief character istic is its justice the of this equality, justice provision is far from An and un very apparent. untrained being benevolence is to be to those thoughtful very apt unjust do not attract attention.” special interests which its Like in Co., wise v. Merchants Ins. the Court supra, Lousiana at 808: “But in the case us there is no says, before page assessed; or all is and arbi property improved conjectural one class of is taxed an invariable sum trary; corporations class; for the benefit of another there no is possibility the tax is a the whether fire com ascertaining quid pro quo; the the by not law to do panies compelled anything insurance a is secured fire companies; bounty depart ment defendants, without confiscating that service shall rendered to the providing any be defend if could, ants and even a departments; fire moment, be as an assessment for benefits con regarded ferred, its N owner of inequality glaring; buildings every Orleans, other combustible New who is property in underwriter, either his own is wholly part presumed to be benefited fire in the department same as the way are. companies Why should alone for this common benefit?” pay Co. V. iETNA INSURANCE JONES.
Opinion of the Court. The is close and difficult and the exceedingly authorities, seen, in- we have but we are are conflicting, clined to adherence to latter Especially view. give where the benefits to a Benefit Firemen’s Association go Therefore, seems to hold public we lacking. be cannot, that the act be a sustained on the is ground' characteristic, police regulation, important publicity purpose, wanting. being
It cannot doubted derives incidentally public much benefit from fire departments municipal corpora tions. that tends to enhance the value organization Any or the of its work property security possession, gives in a unemployed persons bridles given locality, powers hitherto is a unused, after manner beneficial certainly public wealth and welfare of a large. lies of its if Thus, individual citizens. well-being factory employing hundreds of hands and annually turning out thousands of dollars’ worth of is or a products built mine which on the yearly puts hundreds of tons of market mineral is opened incidental benefit to the up, public great, yet highest tribunal of has held legal country that public funds cannot be for such a appropriated purpose. Wallace, Association v. 663. A fire Topeka, Loan is a institution. municipal Its organization control True, matter of *9 purely concern. municipal interest in the establishment of such would extend agencies further than boundaries, the but whether that municipal interest could be manifested in action on the the part than General otherwise to a Assembly, seems encourage, doubt, matter of the of our spirit law being Legis invest lature may municipal governments with power, the exercise of to their leaving discretion and it corporate needs.
In the case present has Legislature the further than gone to raise for fire attempting money departments, municipal in that it seeks to raise organizations, a-fund taxation by seems to us a what benevolent merely purpose. The V. INSURANCE AÜTNA JONES. Term, 1907. the use of of 1906 is not for collected under the act certain firemen’s is to be to
the fire 'but paid These benefits, and pensions. associations for gratuities and their sole under the law associations incorporated are funds collected and dis is to take of the purpose charge act. As was burse them in the manner the provided from, in the a is cer said cases above quoted one. it a source of And no doubt would1be tainly worthy much various departments' comfort to the members of the vocation, but would have allure men to1 tendency to can this effect appropriation justify seemingly arbitrary of the insurance companies? income its work saves that the fire company by
It is argued the insurance and therefore loss, insurance from company us see this them. what should company compensate Let insurance It is known all lead to. well argument would rela- their rate the risk expense companies regulate There- a certain piece property. to the insurance of tive is that the insurance com- reasonable view fore the only make the insured pay gratuities would panies end that in all associations. It is likewise well known who not there are numerous do persons cities and towns denied that such per- insurance. cannot be Now cany the fire than departments are even more benefited sons insurance, risk is entrusted for their entire those who carry Under enactment of such efficiency departments. the class of citizens who carry considered being while the latter imposition must whole of pay get no to bear. benefits have burden On reasoning uniform. tax not one he
That the fireman’s work is meritorious and that faith- regard deserves highest community of his duties facts cannot be con- ful performance Yet his work is not More altogether gratuitous. troverted. it the establish present day tendency and more paid In these the members are paid for their departments. *10 too, In the departments, services. volunteer the members .¿Etna Co. Jones, INSURANCE Opinion of the Court. are usually compensated in one way another. is There also the fact where made a is permanent vocation, is usually case in the paid departments, individual assumes the of his own free will. responsibility That it is fraught with danger no one will deny, it is but not neces- sarily more dangerous than other callings in which numbers of men are employed Can daily. of a engineer locomo- tive dashing across country rate of from fifty miles ninety an hour or of, the miner working hundreds feet below the surface earth be said to be more secure than the fireman who answers alarm bell? Can one said to render a greater service to than the humanity other? We think not. Nor can it be said that the fireman’s duty more public than that of the engineer. There are numerous in a callings sense quasi public, but not of such nature as to justify granting gratuities pen- sions on the ground that the services are public.
Any speculation as to- this subject, however, is estopped constitutional inhibition, Ill, Art. sec. 32. which pro- * * * vides : “The General Assembly shall not grant pensions except military naval service.” A pension has been defined to be an from the annuity government for services rendered in the That past. the pensions provided for by the act of 1906 fall within this rule is evident. The money to be obtained aby governmental enactment and is to be paid superannuated or disabled firemen who in time past had been in active service.
We do not deem it necessary to continue the discussion further. In our opinion the act is clearly unconstitutional.
Therefore it is the judgment this Court, that petition be granted the prohibition issue as prayed for. Messrs. concur on and Woods Justice Jones ground that the statute violates Art. Ill, sec. 32 the Con- stitution.