3 Colo. App. 11 | Colo. Ct. App. | 1892
delivered the opinion of the court.
An act of the legislature approved February 13, 1883, (General Statutes, p. 549,) established an insurance depart
Section 10. “ The superintendent of insurance shall have power to examine and inquire into all violations of the insurance law, and may at any time examine the financial condidition, affairs and management of any insurance company incorporated by or doing business in the state, and inquire into and investigate the business of insurance transacted, and may require any company, its officers, agents, employees, or attorneys, or other persons, to produce, and may examine all its assets, contracts, books and papers; may compel the attendance before him, and may examine under oath its directors, officers, agents, employees, solicitors, attorneys, or any other'person, in reference to its condition, affairs, management or business, or any matter relating thereto ; may administer oaths or affirmations, and shall have power to summon and compel attendance of witnesses and to require and compel the production of records, books, papers, contracts or other documents by attachment if necessary, and shall have the right to punish for contempt by fine or imprisonment, or both, any person failing or refusing to obey such summons or order of said superintendent.”
The remainder of the section gives that officer power to conduct the examination in person, or by deputy, and provides for the imposition of sundry penalties upon insurance companies, or agents, who may refuse to furnish the information which the superintendent is authorized to demand, or to do what he may direct respecting those matters committed to his control. The act afterwards provides for the payment of sundry fees ’which are constituted an insurance fund. The act directs the superintendent every thirty days to pay all moneys which he may receive into the treasury, and
The department was organized and in operation on the 14th of January, 1891, when the deputy superintendent of insurance, Nathan S. Hurd, incurred sundry expenses. He contracted two bills. One was for the expenses necessarily incident to his attendance upon an insurance convention held at the city of St. Louis in October, the amount expended being $125. In the same month, under the direction of the ex officio superintendent, Hurd visited Knoxville, Tennessee, to examine into the financial condition of the Knoxville Fire Insurance Company, which was doing business within the limits of this state. The expenses amounted to about $195. In conformity with the provisions of the act, Hurd drew a warrant on the state treasury, had it approved by the auditor as superintendent and presented it for payment, which was refused. Hurd thereupon filed his petition in the district court of Arapahoe county, praying for a writ of mandamus to issue against the treasurer to compel him to pay these two warrants. Judgment passed in his favor, the writ was ordered to issue, and the attorney general, representing the state, brought the case here on error. Some of the questions presented would be difficult if they were of the first impression. Most of them have been so completely settled by prior adjudications of our own supreme court, and the tribunals of sister states, that little is left to be done other than to restate the law which has been already declared.
In limine the petitioner, Hurd, insists that the treasurer is charged with no other duty than to recognize and pay a warrant drawn on the state treasury by the superintendent of insurance, if it be in the form designated by the act. It is
Since it was the duty of the treasurer to consider the legality of the warrant before he proceeded to pay it, it is essential to determine whether his conclusions were correctly reached. It will be remembered that the two warrants on their face purported to cover the expenditures of the deputy superintendent of insurance while he was attending a convention of insurance commissioners at St. Louis, and while he was investigating the financial condition of a foreign insurance company at Knoxville, Tennessee. The invalidity of the warrants springs, if at all, from the fact that the disbursements were not made by the officer while engaged in the discharge of his official duties in Colorado. The act which clothes the superintendent of insurance and his deputy with authority to examine and proceed against insurance companies can necessarily have no extraterritorial force. Under all the decisions these officers are without authority outside the limits of their own state. It is evident that they would be powerless to either compel the production of books and papers, or coerce the foreign insurance companies into permitting them to make an examination into their financial condition, save by the enforcement of some penalty in the nature of a limitation upon their right to do business. Mechera on Public Officers, §§ 508 and 873; Cooley’s Const. Lim. (6th ed., p. 149); Chandler v. Hanna, 73 Ala. 390.
Since this is true, it destroys the foundation of the contention that it is to be presumed the legislature intended to confer upon these officers power to act beyond the limits of the state, because of the inconvenience or the impossibility other
It was very earnestly contended and argued on behalf of the state that under no circumstances .could those warrants be paid, since the legislature had failed to make any appropriation covering the expenses of the office. This contention is based upon that provision of our constitution which declares that “ no money shall be paid out of the treasury except upon appropriations made by law and on warrant by .the proper officer in pursuance thereof.” Constitution, art. 5, § 33.
The case has been fully disposed of by the antecedent discussion, and a determination of this constitutional question is wholly unnecessary. Constitutional questions are entirely without our final jurisdiction. They are never considered or determined by this court, unless essential to the settlement of the rights of the parties to the controversy. In all such cases it is of course our duty to determine whatever questions may be presented, but, since our declarations on these subjects lack the-force of final determinations, it has always seemed to us both wise and proper to decline to decide them unless the decision be unavoidable. We therefore do not determine that question in this case.
For the reasons above expressed, the judgment of the court below ordering the writ to issue must be reversed.
Reversed.