Hartford Fire Ins. v. State, 9 Kan. 210

Hartford Fire Ins. v. State

9 Kan. 210 | Kan. | 1872

The opinion of the court was delivered by

Kingman, C. J.:

An action was instituted against the plaintiff in error, a foreign corporation, engaged in the business of fire insurance in this state, without having obtained from the superintendent of insurance of the state a certificate of authority to transact such business of insurance in this state, and without having any legal right, warrant, or authority to transact the business of fire insurance in the state of Kansas. The answer was a general denial, and a special defense, setting up a license or certificate of authority issued to the plaintiff in error by the auditor of state on the 25th of February 1871, authorizing the corporation to transact the business of fire insurance in the state from the first day of March 1871, until the 28th of February 1872. The issues so made were tried by the district court without the intervention of a jury, and resulted in a judgment against the plaintiff in error, to reverse which the case is brought to this court. The case was tried on an agreed statement of facts, and documentary evidence, all of which are brought to this court.

Two questions are presented: First, did the auditor issue a valid certificate of authority to the plaintiff in error, as set up in his answer ? Second, did such certificate of authority if valid, confer upon the plaintiff in error such a vested right to do business until the last day of February 1872, as would preclude the legislature from imposing further regulations and duties upon foreign corporations as a necessary prerequisite to their transacting business in the state ? If the first of these questions is decided in the affirmative, then it will become necessary to determine the second.

We think the record shows a want of conformity with the requirements of the statute on the part of the insurance company in matters essentially requisite to be done by the company under the law. Whether such informalities can be inquired into in this proceeding, or whether the decision of *226the auditor that the company had complied with all the requirements of the law, and thereupon had issued his “ certificate of authority,” is conclusive, need not be decided here. It is an interesting question, and was somewhat elaborately argued; but it is not in our way. There is one fact that is jwrisdietional in its character. By § 110, Gen. Stat., page 220, it is provided that “before the auditor shall issue, any certificate of authority, or any renewal of the same, the corporation or its agent shall pay into the state treasury for the support of the common schools the sum of fifty dollars.” The payment of this money was an act to be done by the corporation, and to be done before it had a right to ask for the certificate of authority, and without the payment of which the certificate of authority is a nullity. In this case it appears that the certificate of authority was issued on the 25th of February 1871, and that the money was not paid into the treasury until the 21st of March thereafter. When the auditor issued the certificate of authority he receipted for the fifty dollars and his fees, and drew on the plaintiff in error his draft for the same, payable on sight, and transferred the same to the Topeka Bank. The draft was paid on presentation, and on the 21st of March the money was paid by the auditor into the treasury. Until it was paid into the treasury the state had no interest in it, or control over it; and until it was so paid the auditor had no power under the law to issue the certificate of authority. Plaintiff in error claims that the state received the money when the auditor drew the draft; that the auditor acted as the agent of the state in receiving the money, and therefore the state cannot in honor deny that it received the money. The argument involves an error of fact, and an entire misapprehension of the duties and powers of a public officer. The error of fact is in assuming that the drawing of a draft payable on sight is the same thing as receiving the money from the drawee.; but the much more serious error is found in the declaration that the auditor acted as the agent of the state in. drawing the draft, or in receiving the money when it was paid. The limits of an officer’s *227authority are found in the law. The law in this case, for reasons in harmony with our entire financial system, gave no authority to the auditor to collect the money. It is one of the checks of our system that the treasurer receives the state’s money, and the amount which he receives shall appear in the records of some other office. It is not necessary to say that the plaintiff in error was bound to know the details of our financial system, or be familiar Avith its general spirit; but when it came within the state, seeking to extend its business among our people, it Avas bound at its peril to take notice of express provisions of laAV stating the terms upon Avhich it could be permitted to do business in the state. One of the conditions Avas, that by itself or its agent it should pay a certain sum into the state treasury before the auditor could issue the certificate, and before it acquired any right to a certificate, or any authority to do business in this state. If the corporation chose to pay this through the auditor, then for that purpose the auditor Avas the agent of the corporation, and not of the state; and until the money reached the state treasury it aaus under the control of the corporation and not of the state. Therefore, when the certificate of authority Avas issued, one of the vital conditions upon which it could be granted had not been complied Avith on the part of plaintiff in error. It was a condition that neither the auditor nor any other officer could waiA'e or dispense Avith. Because of the non-payment of this money the certificate itself Avas void, and presented no defense to the action.

This conclusion renders it hnnecessary to consider any of the other questions raised in this case.

The judgment is affirmed.

All the Justices concurring.