North British & Mercantile Insurance v. Edwards

85 Miss. 322 | Miss. | 1904

Whitfield, C. J.,

delivered the opinion of the court.

The provision of sec. 97 of the constitution of 1890 in respect to reviving a remedy relates alone either to an express statute of limitation of this state or to a lapse of time dealt with, under the statute or under the general law, as a limitation of time. The phrase “lapse of time,” as here used, must be interpreted to mean — on the maxim, “Noscitur a sociis” — a period of time limiting the action. The statute providing that no action could be maintained on any contract in a business where the privilege license had not been paid does not provide any statute of limitation within which the remedy must be pursued. It sets up an absolute bar, while it exists, to the right of recovery at all. It is a bar to recovery which the state has interposed between itself and a delinquent taxpayer, effectual without reference to the time, so long as the statute is unmodified. In other words, the provision of sec. 97 of the constitution relates wholly to a limitation of time in which suits may be brought, and. to such, limitation as is recognized by tbe law of this state. The statutory provision prohibiting the maintenance of suits relates not at all to such limitation of time, But provides an' absolute bar to the right to recovery while the statute is in force. See. 97 of the constitution, therefore, is in no way interfered with by the amnesty act. The amnesty act, as held in the Pollard insurance case, 63 Miss., 244 (56 Am. St. Rep., 805), simply removes the barrier the state had set up between itself and a delinquent taxpayer. The clause in the policy of insurance is a contractual limitation made between private parties, not a limitation existing under the statute of limitation or under the general law. The inherent difference in the nature of the two things — the ' contractual provision in the policy and § 3401, Code 1892 — solves all the trouble. The former relates alone to remedy, and to that feature of the remedy constituting the time in which suit may be brought. Sec. 3401, Code 1892, relates not at all to any limitation of time in which a suit may be brought, but to a wholly different thing — to wit, an absolute bar to a right to recovery at all which is by it set up. The argument is that during the time § 3401, Code 1892, was in force, no suit could be commenced on this contract — -legally commenced — in other words, that there could be no legal commencement of such suit until after the amnesty act had been passed, and hence, as that act was not passed until after the expiration • of the period of time within which plaintiff, by virtue of the contractual provisions in the policy, might sue, had expired, the plaintiff was barred. What we have said clearly disposes of this contention. The insurance company, because the state sets up a bar to the right of recovery at all, and afterwards sees fit to remove it as between itself and the delinquent taxpayer, derives from such legislation, not relating at all to a limitation of time, no right to claim that the suit has been barred by virtue of the contractual provision. So far as the insurance company is concerned, the suit was legally instituted. The institution of the suit is one thing; recovery under it is another. An insuranee company cannot avail itself of this sort of statute; § 3401, Code 1892, passed for tbe purpose we have stated, not relating to limitation of time at all, as an aid to its contractual provision, wbicli relates to time alone.

There is no merit in any of the other contentions.

Affirmed.