1 N.C. App. 208 | N.C. Ct. App. | 1968
G.S. 58-44.6 provides that whenever any person subject to the provisions of G.S., Chap. 57 or Chap. 58 shall commit any act or fail to comply with any requirements prohibited or required by said chapters by virtue of which any license is subject to suspension or revocation, “the Commissioner of Insurance, in addition to or in lieu of any other official action that may be taken by him, may, in his discretion, inflict a civil penalty in an amount to be fixed by said Commissioner of Insurance not in excess of twenty-five thousand dollars ($25,000.00), . . .” The statute provides that the Commissioner of Insurance before imposing any penalty or revoking any license shall conduct a hearing and shall make all necessary findings of fact in regard to the matter under inquiry. The hearing is to be conducted under the procedures set forth in G.S. 58-54.6, which requires a notice of hearing and statement of charges to be served upon the person affected, grants such person an opportunity to be heard, provides for the making of a stenographic record of all evidence upon the request of any party and provides for the examination and cross-examination of witnesses under oath. Any person whose rights are affected by the findings and order of the Commissioner of Insurance has the right to appeal to the Superior Court of Wake County, in which event the procedures contained in G.S. 58-9.3 shall be followed.
In the case before us defendant did not avail himself of his right to appeal, nor does he raise any objection as to the conduct of the proceedings before the Commissioner of Insurance leading up to the order revoking his licenses and imposing the civil penalty. He has raised no objection to that portion of the order of the Insurance Commissioner revoking his licenses. He does object to the imposition upon him of any civil penalty, contending that the portion of the statute authorizing the Insurance Commissioner to impose such a penalty is unconstitutional, in that it grants such an unlimited discretion to the Commissioner to be exercised without the guide of sufficient legislative standards that it must be regarded as an attempted delegation of the legislative function offensive both to the State and Federal Constitutions.
In the case of Turnpike Authority v. Pine Island, 265 N.C. 109, 143 S.E. 2d 319, the North Carolina Supreme Court, speaking through Sharp, J., said:
*212 “It is settled and fundamental in our law that the legislature may not abdicate its power to make laws nor delegate its supreme legislative power to any other coordinate branch or to any agency which it may create. Coastal Highway v. Turnpike Authority, 237 N.C. 52, 74 S.E. 2d 310. It is equally well settled that, as to some specific subject matter, it may delegate a limited portion of its legislative power to an administrative agency if it prescribes the standards under which the agency is to exercise the delegated powers.”
Examples of attempted delegation of legislative power held to be unconstitutional may be found in Harvell v. Scheidt, 249 N.C. N.C. 699, 107 S.E. 2d 549 (statute which granted the Department of Motor Vehicles authority to suspend the driver’s license of any person found to be a “habitual violator” of the traffic laws, held to be an unconstitutional delegation of legislative power, since it did not define the term “habitual violator,” set no standards for making the determination, and left the matter to the unlimited discretion of the Department); State v. Williams, 253 N.C. 337, 117 S.E. 2d 444 (statute requiring persons soliciting students for private schools to obtain a license from the State Board of Education held unconstitutional as an unwarranted delegation of the lawmaking power, since the statute prescribed no standards to guide the administrative Board in granting or withholding the prescribed license); State v. Harris, 216 N.C. 746, 6 S.E. 2d 854 (statute purporting to grant unlimited discretion to a commission to set up standards of their own for admission to the business of “ ‘dry cleaning and/or pressing,’ according to whatever rules or regulations they may conceive to be related to the 'public health, safety, and welfare,’ ” held unconstitutional) .
In the case before us the Legislature has delegated to the Insurance Commissioner the power to make “rules and regulations, not inconsistent with the law, to enforce, carry out and make effective the provisions of this chapter (G.S., Chap. 58), and to make such further rules and regulations not contrary to any provisions of this chapter which will prevent practices injurious to the public by insurance companies, fraternal orders and societies, agents and adjusters.” G.S. 58-9(1), We are not, however, presently called upon to determine if this.delegation of legislative power has been made within sufficiently narrow channels to meet constitutional requirements. While the Commissioner is authorized by G.S. 58-9(1) to make rules and regulations, it should be noted that the section of the statute here under attack, G.S. 58-44.6, does not authorize him to inflict the monetary civil penalty in question upon any finding of a mere viola
Unlike the statutes which were involved in the cases above referred to, the section of the statute here under attack, G.S. 58-44.6, grants no unguided discretion to the Insurance Commissioner to make any laws. It merely gives him discretion to impose a civil penalty in an amount to be fixed by him not in excess of $25,000, but only after he has given due notice to the person to be affected, granted the accused an opportunity to be heard, conducted a hearing, subpoenaed and examined witnesses, received oral and documentary evidence, caused a stenographic record of all evidence and proceedings to be made upon the request of any party, “made all necessary findings of fact in regard to the matter under inquiry,” and based thereon has determined that the accused has committed some act or failed to comply with some requirements of G.S., Chap. 57 or Chap. 58.
The functions to be exercised by the Insurance Commissioner and the discretion granted to him by G.S. 58-44.6 here under attack were essentially judicial rather than legislative in nature. The Commissioner was granted no power to create any new law. The Legislature itself, not the Insurance Commissioner, enacted the laws. The Legislature did impose upon the Commissioner the duty to “see that all laws of this State governing insurance companies . . . are faithfully executed.” G.S. 58-9(1). To enable him to perform this duty, the Legislature has granted him certain limited judicial powers and functions. The Legislature had the constitutional right and power to do exactly this. Article IV, § 3 of the North Carolina Constitution provides:
“The General Assembly may vest in administrative agencies established pursuant to law such judicial powers as may be reasonably necessary as an incident to the accomplishment of the purposes for which the agencies were created. Appeals from administrative agencies shall be to the General Court of Justice.”
The judicial powers granted to the Commissioner of Insurance by G.S. 58-44.6, including the discretionary power to impose the civil penalty within the limit provided after conducting the proceedings
In view of the statutory duty imposed upon the Insurance Commissioner to see that the laws of this State relating to the business of insurance are faithfully executed, the Commissioner has a very real interest in seeing that his orders and decisions are carried out. The limited judicial powers which have been vested in him by the Legislature do not include the judicial power to enforce his own orders or decisions. For that purpose he must necessarily resort to the courts of this State and in any court proceedings instituted by him for that purpose he is a real party in interest within the meaning of G.S. 1-57. Therefore defendant’s motion for nonsuit on the grounds that this action was not instituted by the real party in interest was properly overruled.
We also hold that the provision in the judgment directing the defendant to pay the amount of the penalty to the Treasurer of the State of North Carolina was correct. While G.S. 58-44.6 does not itself specify to whom the civil penalty is to be paid, G.S. 58-63(4) does direct the Commissioner of Insurance to “collect all other fees and charges due and payable into the State treasury by any company, association, order, or individual under his department,” and G.S. 58-62 directs him to pay the full amount of such funds monthly to the State Treasurer. By clear implication of those sections, the amount of any monetary civil penalty imposed and collected as authorized by G.S. 58-44.6 should also be paid over to the State Treasurer, and there was no error in the judgment so directing.
Affirmed.
