86 Ala. 622 | Ala. | 1888
The petitioner was held in custody under the mittimus of a magistrate, for acting as agent for
It is insisted for the State that, under the .rule laid down in Ex parte Champion, 52 Ala. 311, the application should be denied, on the ground that the prisoner was regularly committed, after investigation by a duly authorized officer, and the bill of exceptions fails to show that the witnesses, previously examined against him before the committing magistrate, were again examined on the trial before the city judge, or that it was impracticable for any reason to produce them. Conceding the soundness of this principle, which seems to be supported by the decision cited, the present case, in our judgment, is taken out of its influence. The evidence shows that the State did not rest on the prima facie case made by the mittimus, as might well have been done, but proceeded to examine witnesses, with the view of corroborating the charge. In doing so, a specific case was disclosed, which seems to us not to be in violation of the statute; and this case, we must assume, was the one, and the only one, covered by the magistrate’s process of commitment.
The offense charged, as we have said, is acting as agent of an unlicensed foreign insurance company, which is punishable by fine in a sum equal to the State, county and municipal tax required to be paid by such company for license, and five hundred dollars, in addition thereto; and on second' conviction, by a still heavier fine, and imprisonment, or hard labor. — Code, 1886, 2 vol. § 3897.
The prisoner was proved to have merely inspected a risk already taken by an unlicensed foreign insurance company. He did not, directly or indirectly, solicit any risks, or offer to make any contract of insurance whatever.
What is meant by “acting as agent” of such insurance-company? This is answered by section 1205 of the Civil Code, 1886, which reads as follows:
“§ 1205. Who are agents' of foreign insurance-companies. Any person who solicts insurance on behalf of an insurance company, not incorporated by the laws of this State, or who, other than for himself, takes or transmits an application of*625 insurance, a premium of insurance, or a policy of insurance to or from sucb company, or in any way gives notice that he will receive or transmit the same, or receives or delivers a policy of insurance in such company, or who inspects any risk, or makes or forwards a diagram of any building, or does any other thing in the making of a contract of insurance, for or with such company, other than for himself, or examines into, adjusts, or aids in examining into or adjusting, any loss for such company . . shall he held to he the agent of the company for which the act is done, and such companv held to be doing business in this State.” — Code, 1886, § 1205.
This section of the Civil Code, and section 3897 of the Criminal Code, making it an indictable offense to act as agent for unlicensed foreign insurance companies, both are found in the same original act, constituting, as they do, sections 16 and 17, respectively, of the general revenue law approved December 12, 1884. They must, therefore, be construed together. The specific acts which are there made indictable, are the doing or performing any of the acts of agency mentioned in section 16, which are identical with those specified in section 1205 of the Code. — Acts 1884-85, pp. 19-20.
The act of inspecting a risk, unless it is done “in the making of a contract of insurance,” or, as the original act expresses it, “in the making or consummating any contract of insurance [by an agent] for or with any such company other than for himself,” obviously does not fall within the prohibited acts of agency. The phrase — “does any other thing” — limits the meaning of the generic terms previously employed, to the specific class immediately afterwards designated, viz., any act or thing done “in the making of a contract of insurance.” In other words, on a principle of construction well settled, the phrase — “who inspects any risk”- — as used in the statute, must be construed ejusdem generis with the associated phrases- — who “takes or transmits an application for insurance,” or “a policy of insurance,” or “premium of insurance,’.’ or who “receives or delivers a policy of insurance,” and other like expressions, all of which are confined, by the terms of the statute, to “the making of a contract of insurance.” — -Endlick on Statutes, § 406; Amos v. State, 73 Ala. 498. This interpretation is made perfectly plain by the words of the original act. — Acts 1884-85, p. 20, § 17.
The writs of habeas corpus and certiorari will accordingly be awarded by this court, to bring the petitioner before us, together with the proceedings had before the judge of the City Court of Mobile, unless, on another application renewed before him, he shall order the petitioner to be discharged from custody.