135 Ind. 23 | Ind. | 1893
The appellee brought this action in the lower court to enjoin the appellant, as auditor of State, from revoking, or attempting to revoke, the license or authority of the appellee, as a foreign insurance company, to do business in the State of Indiana.
The petition alleged that the appellee was, and for a number of years had been, engaged in business in the counties of this State; that since the 3d day of March, 1877, it had fully complied with the act of the General Assembly, in force from that date (R. S. 1881, section 3765), alleging in detail the steps taken in compliance with said act and in otherwise obeying the law's of the State relating to the transaction of its „ business in this State; that it now holds, and ever since the 3d day of March, 1877, it has held, proper certificates of authority from said auditor to transact business in the various counties of this State, as a foreign insurance company; that said auditor is threatening to, and will, if not restrained, revoke the authority so held by said company, said auditor therein acting under the act of the General Assembly, approved March 9, 1891, for the creation of a fireman’s pension fund, etc., Acts 1891, p. 415.
It is not alleged that said company complied with, or attempted to comply with, said act of March 9, 1891, in reporting its business done in Marion county, but it is alleged that said act is, as to foreign insurance companies, unconstitutional and confers no legal power to revoke the authority of such companies to transact business within this State.
The superior court, in special term, overruled the appellant’s demurrer to the petition, and upon exception to said ruling the judgment was affirmed by said court in general term. The error assigned in this court is said ruling of the superior court in general term.
The title and first three sections of the act of March
“An act to create a fireman’s pension fund, for the pensioning of disabled firemen, and the widows and the dependent children, mothers and fathers of deceased firemen, to create a board of trustees of such fund, to authorize the retirement from service of disabled members, and of all members after a service of twenty-five years, and pensioning of such members, and for other purposes in connection therewith in cities in this State having paid fire departments, and declaring an emergency.
“Section 1. Be it enacted by the General Assembly of the State of Indiana, That every fire insurance company doing business in this State, and not organized under the laws of this State, shall, in the months of January and'July of each year, report to the auditor of each county in the State wherein there is a city having a fire department paid by said city, under oath of the president and secretary of such company, the gross amount of all receipts received by such company on account of insurance premiums for insurance upon property in said county for the six months preceding the last day of the last preceding December and June, and of the losses actually paid during the same period, and shall, at the time of making such report, pay into the county treasury of such county one dollar on every one hundred dollars of the excess of said receipts over and above said losses. Any fire insurance company which shall fail or refuse to render an accurate account of its receipts and losses, as herein provided, or to pay the required tax thereon into the county treasury shall forfeit, for the benefit of said fund in said county, one hundred dollars for each day such report or payment shall be delayed, to be recovered in an action in the name of the State of In
“Section 2. Any county auditor, knowing that any fire insurance company is doing business in any city in said county having a fire department paid by said city contrary to the provisions of this act, who shall fail for ten days after knowledge thereof to report such fact to the auditor of State, shall forfeit and pay for the firemen’s pension fund in skid county, for each day’s failure after the expiration of said ten days, the sum of twenty-five dollars, to be recovered in an action brought in any court of competent jurisdiction by the board of trustees of the fire department of such city.
“And if the auditor of State, after receiving notice from the county auditor of any county that any fire insurance company is doing business in such county contrary to the provisions of this act, shall fail or refuse forthwith to revoke the authority or license of such company to do business in this State, such auditor of State shall forfeit and pay for the benefit of the firemen’s pension fund in said county the sum of fifty dollars for each day’s failure, the same to be recovered in an action
“Section 3. The sum so paid into the county treasury of each county, as provided in section 1 of this act, shall be set apart and designated as a ‘Firemen’s Pension Fund,’ and the same shall be held and disbursed for the purposes and objects and in the haanner provided for in this act.”
The remaining sections of the act provide for the election, service, and duties of trustees for such pension fund, the manner of distributing and controlling such fund by such trustees, and that the act shall not be so construed as to affect existing legislation requiring insurance companies to pay taxes into the treasury of the State.
The first objection to the act is that it violates section 19, article 4, of the State constitution, which is as follows: “Every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.”
It is important to.ascertain the full scope and meaning of this provision of the constitution, and, as has often been- said by this court, one obvious purpose was to limit an act to one subject and matters properly connected therewith; another purpose was that such subject — not the matters connected therewith — should be expressed in the title, and still another purpose was to limit the invalidity, by reason of any failure to so express the subject in the title, to’ so much of the subject as might not be so expressed. But can we say that these were the only purposes?
In Grubbs v. State, 24 Ind. 295, it was declared that the provision was designed to prevent mischief in legis
Judge Cooley, in his work on Constitutional Limitations (6 ed.), p. 171, in speaking of the purpose of this provision in the constitutions of the States, says : “It may therefore be assumed as settled that the purpose of these provisions was: first, to prevent hodge-podge or ‘log-rolling’ legislation; second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have an opportunity of being heard thereon, by petition or otherwise, if they shall so desire.” See, also, In re Road, etc., of Phœnixville, 109 Pa. St. 44.
At a time when the constitution was fresh from the hands of its framers, this court held that one of the objects of this provision-was to promote the codification of the enactments of the Legislature. Indiana Central R. W. Co. v. Potts, 7 Ind. 681.
We could multiply the desired ends and laudable objects of this provision as expressed by the courts, but we
Counsel for the parties have cited many cases where acts covering very many subjects have been construed. Some of these manifest the spirit of liberality in construing statutes with reference to this provision, while others look more closely to the letter of the provision. It is observed, however, that, owing to the diversity of the subjects legislated upon, and the varied forms of expressing those subjects, precedents are without assistance further than as they apply general rules.
In construing the enactments of the Legislature, with reference to their form under the constitution, we are fully impressed with the importance, as well as the delicacy, of our task. Due respect for the rights, privileges, and powers of the legislative department of the State government, and a proper regard for the direction of the fundamental laws, make it our duty to uphold legislation, where it is not clear that the constitutional command has been violated or neglected, and, where it has clearly been violated or neglected, to so decide without regard to the objects sought or the interests involved in such legislation.
To properly apply the rules suggested for our guidance, we should first ascertain the subject of the act in question.
From the sections of the act as quoted above, it will be seen that the object was to make a certain class of firemen pensioners upon a certain class of insurance companies, and to provide and direct the instrumentalities through which this end should be accomplished. We realize that exception may be taken to this statement of the object, since it is contended that the act is not only an exercise of the taxing power, but is in a sense one of the penal conditions upon which such companies are
It will be found difficult, if not impossible, to discriminate between a statement of the object of this act and a statement of its subject. This may not,be true as a general rule with enactments, but we find it so in this instance. Possibly it may not be necessary in expressing the subject of this act, in order to comply with the constitutional provision, that the instrumentalities through which the end is accomplished should be stated as a part of the subject, but, to our mind, it is clear that the subject can not be less than the object in other respects, as we have stated it. "An act concerning pensions” would have been a general statement of the subject of the act, but it would have been too general to advise any one intelligently of its character. Being an expression of the Legislature, one of whose functions is to deal with public revenues, it would be supposed that pensions were to be provided from such revenues, but suppositions are not to be indulged, when the Legislature is directed to express- the subject — certainly with enough particularity that, at least, one accustomed to reading such expressions might understand something of its objects and effects.
It should be more than a mere warning to the reader, that unless he shall read the act and learn if his interests are involved his property may be affected by it.
Ordronaux’s Constitutional Legislation states, page
In State v. Young, 47 Ind. 150, a test was prescribed for determining if the subject is expressed in the title. It was said, in speaking of that element of the subject claimed to be absent from the title: “Suppose that there was no other provision in the act. * * * If the section could not thus stand alone under the title, it must fall.” We apprehend that this is always true where only a part of the subject is expressed, and that it is especially true where that part of the subject omitted from the title is not naturally or ordinarily connected with that part of the subject which is expressed in the title.
Omitting that part of the act relative to the bestowal of such fund upon firemen, the provision requiring such companies to contribute to such fund could not stand alone, under the title of the act, as the subject is expressed. The requirement that the subject expressed should apprise the people of the subject of legislation, in order that an opportunity for a hearing or for petition may be had, is far from being complied with in the act before us. No notice whatever to those expected to con
The act under consideration is attacked as violating several other provisions of the Constitutions of the United States and of the State of Indiana, but we do not deem it our duty to determine but one of the questions so presented, having already held the act insufficient as to its title.
It is said that the act is an attempted exercise, by the Legislature, of the power of taxation, and that being local, not uniform, and for no public purpose, is in violation of the taxing power as conferred by the constitution, article 10, section 1. That provision of the constitution is as follows:
“The General Assembly shall provide, by law, for a uniform and equal rate of assessment and taxation; and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only, for municipal, educational, literary, scientific, religious or charitable purposes, as may be specially exempted by law.”
Is- the enactment of the law before us an attempted exercise of the power of taxation as conferred by the constitution?
In several States, this character of legislation has been before the courts for construction, and we find the decided weight,of authority holding that it is such an attempt. City and County of San Francisco v. Liverpool,
The only cases holding it as the exercise of any other power are Trustees, etc., v. Roome, 93 N. Y. 313, where it is expressly held that such power is in the exaction of a license fee, or the fixing terms upon which such companies may transact business in the State; and Fire Department of Milwaukee v. Helfenstein, 16 Wis. 142, where it is expressly held that the power exercised is ‘' the police power inherent in the sovereignty of the State.” Another case, that of the Firemen’s Benevolent Ass’n v. Lounsbury, 21 Ill. 510, stands alone in declaring it is not only the taxing power, but that such power was correctly exercised, under the peculiar form of the constitution of that State.
We are not called upon to decide whether the Legislature might properly have required the exaction here levied, as a condition upon which such companies could do business in this State, as it was held in New York, but we are of the opinion that no such attempt was made. Since March, 1877, as we have shown, our legislation has prescribed the terms upon which such companies may transact business in this State (section 3765,supra, R. S. 1881), and, as alleged in the complaint, this appellee, during that period, has fully complied with such terms. The act in question does not purport to add its exaction to the conditions so prescribed by the act of 1877; on the contrary, it expressly denominates the levy a "tax.”
If there were room for question as to the correctness of our conclusion, we should find support from the concession of appellant's able counsel, that it must be treated as an effort to exercise the taxing power.
Counsel for appellant further say: "Of course, we
The Illinois rule can best be given by quoting from Firemen’s Benevolent Ass’n v. Lounsbury, supra. It is there said, p. 513: “The other objection is, that here a revenue is attempted to be raised, not for State purposes, nor yet to meet any public exigency or want, but purely
It is further stated, p. 514: "There is nothing to be found in the constitution which can be held to inhibit the Legislature from imposing burdens, or raising money from citizens of the State, which is not for the direct benefit of the State, and is never designed to belong to the State.”
The only reference made to the relationship between firemen and the public is as follows: "With the view we take of this case, it is immaterial whether this be considered a public or a private charity. But it should more properly be considered a public charity.”
Our constitution gives no such unlimited power to the Legislature, and, as an authority for the construction of powers under our constitution, we can not accept this decision. Nor are we inclined to give special weight to it in favor of the contention of the appellant, that firemen are public servants within that sense which would admit of the exercise of the taxing power of the State. The New York rule is that the percentage of receipts is exacted as a condition upon which companies are admitted to transact business in the State, as the terms of such
The business done in each of the four counties affected bears the burden of the exaction, and the fund is devoted to the benefit of firemen within four cities only. The property of such counties outside of such cities get no protection from such firemen, and its owners have no pecuniary interest in them. While the fund for the benefit of the city is obtained from the companies, the companies must first obtain it from the whole people of the county, thus requiring the people of the county, indirectly, to contribute to the pensioning of city firemen. The question, therefore, should be, are the firemen benefited, the servants of those whose taxing power is exerted in their behalf? We think they are not, even if
Here the taxing power of the State is exerted for the benefit of a few of the citizens of the State, who hold the obligation of their respective cities for their courage and their valued service, and the purpose is that this power shall be exerted for the discharge of that obligation. We do not regard this as the most objectionable feature of this act. We have ninety-two counties in this State, whose united power is thus exerted in levying a tax upon certain foreign insurance companies. As to the State, all foreign insurance companies constitute a class, and of this class all are not subject to the operation of this act; only those who do business in four of such counties. The taxing power of the State can not thus be made the means of levying municipal taxes upon a fraction of a class, and of bestowing the tax so levied upon a' small fraction of the citizens of the State — all of her citizens standing in like relation to her, unless she owes them some peculiar obligation not existing in serving as firemen for some city. The taxing district of the State, wherein taxes are directed for the benefit of those serving the State, is the whole State. State taxes are not of uniform and equal rate when they apply to a portion of a class only and omit a portion of the same class, and this is no less true because the classes may be divided by county lines.
Uniformity in rate, as required by the constitution,
The four counties affected have no power, under this act, to make the percentage from the business of the companies the condition upon which business shall be done by such companies, and the act does not purport to give such power; the percentage is not levied under any law or by any’ method known to the gathering of county or city revenues. The act is a plain and unmistakable effort to use the taxing power given to the State, and for the purposes of the State in behalf of a favored class in a few of the cities of the State. As we have said, this can not be done.
The cases of the City and County of San Francisco v. Liverpool, etc., Ins. Co., supra; State v. Wheeler, supra; Philadelphia Ass’n, etc., v. Wood, supra; State v. Merchants’ Ins. Co., supra, fully sustain our conclusion.
The judgment of the lower court is affirmed.