Riley & Co. v. Wright

151 Ga. 609 | Ga. | 1921

George, J.

(After stating the foregoing facts.) The Civil Code (1910), § 2443, provides: “Any person who solicits in behalf of any insurance company, or agent of the same, incorporated by the laws of this or any other State or foreign government, or who takes or transmits, other than for himself, any application for insurance or any policy of insurance to or from such company, or agent of the same, or who advertises or otherwise gives notice that he will receive or transmit the same,- or who shall receive or deliver a policy of insurance of any such company, or who shall examine or inspect any risk at any time, or receive or collect or transmit any premiums of insurance, or make or forward any diagram of any building or buildings, or do or perform any other act or thing in the making or consummating of any contract of insurance for or with any such insurance company, other than for himself, or who shall examine into or adjust or aid in adjusting any loss for or in behalf of any such company, whether any of such acts shall be done at the instance or request or by the employment of such insurance company, or of, or by, any broker or other person, shall he held to be the agent of the company for which the act is done or the risk is taken.” Section 6 of the act of the General Assembly entitled “An act to provide for the establishment of a department of insurance,” etc., approved August 19, 1912 (Acts 1912, pp. 119, 124), provides that “All persons shall be required to procure a license from the department of insurance before soliciting business in this State, except those agents whose names are furnished the insurance commissioner by some reputable insurance company as its accredited agents.” Section 7 of that act is as follows: “ All agents soliciting insurance in the State of Georgia shall, before procuring the license from the department of insurance, make application to the commissioner; and before the said commissioner shall issue such license, he shall satisfy himself that such agent is authorized by some reputable insurance company to do business in this State, and the commissioner shall be advised and convinced as to the moral character and integrity of such applicant for license. The license of any soliciting agent may be revoked at any time by the insurance commissioner in his discretion.”

The brokers were doing business without license, and in our opinion these brokers were agents of plaintiffs. Under the admitted facts in this case, the question therefore is whether so much of section 7 of the act as provides that “ the license of any soliciting agent may be revoked at any time by the insurance commissioner in his discretion” is unconstitutional. Eiley & Company have been engaged in the fire-insurance business in the city of Atlanta for many years. They have established a business valued by them at $50,000. They have expended large sums of money in the enterprise. It may be assumed that they will continue to represent fire-insurance companies under satisfactory arrangements with the companies. Eiiey & Company’s right to carry on their business is something more than a mere indulgence revocable at the pleasure of the insurance commissioner, or at the command of the legislature. In Dent v. West Virginia, 129 U. S. 114 (9 Sup. Ct. 231, 30 L. ed. 623),— opinion by Justice Field, it is said: “It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex, and condition. This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors, and can not be arbitrarily taken from them any more than their real or personal property can be thus taken.” Compare Ex parte Garland, 71 U. S. 333 (18 L. ed. 366), and Ex parte Robinson, 86 U. S. 505 (22 L. ed. 205). Before the right of any citizen to engage in any lawful business, calling, or profession can be taken from him, he should have notice of the ground of the complaint against him, and ample opportunity of defense. While the insurance commissioner advised Eiley & Company that he intended to revoke their license, the notice was given as matter of grace. It must be noted that section 7 of the act approved August 19, 1912, quoted above, makes no provision whatever for notice, and affords no opportunity to be heard. The provision of the act is therefore violative of paragraph 3 of section 1 of article 1 of the constitution of this State, which declares that “No person shall be deprived of life, liberty, or property, except by due process of law.” For the reasons stated, the provision is likewise violative of the due-process clause contained in section 1 of the fourteenth amendment to the constitution of the United States.

The defendant contends that the insurance business is subject to police regulation, and that the license imposed upon soliciting insurance agents is imposed in the exercise of the police power and not for the purpose of raising revenue. Our attention is directed to the provision of the act which provides in effect that the insurance commissioner, before issuing a license to an agent, must be advised and convinced of the moral character and integrity of the applicant for the license. It is insisted, therefore, that the license does not confer upon the holder any vested right, and is revocable by the State at pleasure. The cases of Silver v. Sparta, 107 Ga. 278 (33 S. E. 31), and Brown v. State, 82 Ga. 224 (7 S. E. 915), are cited in support of the contention. The cases of Ison v. Griffin, 98 Ga. 623 (25 S. E. 611), Whaley v. Columbus, 89 Ga. 781 (15 S. E. 694), and Cassidy v. Macon, 133 Ga. 689 (66 S. E. 941), are also in point. It is undoubtedly true that the holder of a license to sell intoxicating liquors, for instance, has no property right in his license, and that the State in the exercise of its police power can revoke the license at will. The character of the business determines the right and protection to which the holder of the license is entitled. The insurance business is per se useful and lawful. The legislature can not destroy such a business at will, nor can it arbitrarily take away the right to carry on such business. Where the business is inherently harmful, and permissible only under license of the State, for instance, the licensee accepts his license subject to the right of the State to outlaw the business and to revoke his license. The cases cited and relied upon by counsel for the defendant are therefore not in point. On the contrary, this court in Mott v. State Board of Optometry, 148 Ga. 55 (95 S. E. 867), declared section 7 of the act of the General Assembly approved August 7, 1916 (Acts 1916, p. 83), which provided that “the State board of examiners in optometry shall refuse to issue the certificate of registration provided for in this act to any person who shall have been guilty of grossly unprofessional and dis-' honest conduct,” to be unconstitutional and void. The act there considered sought to regulate a business per se useful and lawful. If section 7 of the act approved August 19, 1912,' is a mere police regulation, certainly the provision of the act considered in Mott v. State Board of Optometry, supra, was likewise a police regulation. Upon the theory that the character of the business determines the right and protection to which the party engaged therein is entitled, this court held the provision of the act of 1916 to be unconstitutional, because it did not provide for notice and an opportunity to be heard. That act did provide for an appeal from the decision of the State board of examiners; but even the provision in the act with reference to an appeal to the superior court after the board had rendered judgment of condemnation was held not to be a compliance with the mandate of the constitution. In principle that case is controlling and serves to distinguish the present case from the cases cited and relied upon by counsel for the defendant. It follows that the court erred in refusing an interlocutory injunction..

Judgment reversed.

All the Justices concur.