Continental Ins. v. Riggen

Opinion by Mr. Justice Bean. This is a suit to foreclose a mortgage upon certain real estate in Multnomah County, executed and delivered to the plaintiff by the defendants as security for the payment of a balance due the plaintiff from defendant S. B. Riggen and one T. M. Riggen, former — 338 — agent of the company, for premiums on fire insurance business previously done in this state. The only defense is that the contract upon which the suit is brought is void because at the time of its execution the plaintiff was a fire insurance company organized and existing under the laws of the State of New York, and carrying on business in this state without first having complied with the provisions of sections 3276 and 3580 of Hill’s Ann. Laws, by executing and recording a power of attorney, appointing a resident agent, and maintaining a head or general office in the state under the charge of a general agent. The court below held this defense insufficient, and, the defendants declining to answer or plead further, a decree was entered in favor of plaintiff, as prayed for in the complaint, from which the defendants bring this appeal. 1. In 1864 the legislature passed an act to regulate and tax foreign insurance, banking, express, and exchange corporations or associations, in which it was provided that, before doing business in the state, any of such corporations must deposit with the treasurer of the county in which its principal office or agency is maintained the sum of $50,000, in interest-bearing bonds of the United States, as security for persons transacting business with such corporation in the state, and, in addition thereto, must execute and acknowledge a power of attorney appointing a resident agent or attorney, with authority to accept service of process for the corporation, and upon whom service could be made, and cause the same to be recorded in each county where it had a resident agent: Gen — 339 — eral Laws 1864, p. 745. This act was subsequently amended in some matters not material to any question presented at this time, and, as so amended, is published as chapter XXIV of the Miscellaneous Laws of the compilation of 1872 by Deady and Lane. In 1887 (Laws 1887, p. 118), the legislature passed an act entitled “An Act to Regulate and License Insurance Business in the State of Oregon,” being chapter L of Hill’s Ann. Laws; and the principal question on this appeal is whether the latter act repealed by implication the provisions of the former, requiring a foreign fire insurance company, before transacting business in the state, to execute and record in each county where it has a resident agent a power of attorney appointing a resident and citizen of the state as its agent, upon whom service of summons may be made. Repeals by implication are never favored, and, when there are two acts upon the same subject, effect will be given to both, if possible; but when they are repugnant, so that both cannot stand, the latter, without any repealing clause, will operate as a repeal of the former; and, even when they are not repugnant, if the new statute revises the whole subject-matter of the old, and is plainly intended as a substitute therefor, it will likewise .operate as a repeal of the former, although it contains no express provision to that effect: Little v. Cogswell, 20 Or. 345 (25 Pac. 727), and authorities there cited. Now, it is manifest, from an examination of the act of 1887, that it was intended to and does revise the whole subject of fire insurance business in the state, and prescribes the terms and conditions upon which both domestic and foreign insurance — 340 — companies may be permitted to do business here, and therefore, under the rule referred to, clearly operates as a repeal of the provisions of the former act upon the same subject, so far as it affects such companies. It appoints an insurance commissioner charged with the duty of seeing that the laws of the state respecting insurance companies are faithfully executed; prohibits any company, firm, or individual from transacting life, fire, or marine insurance in the state without a license from such commissioner; prescribes in detail the terms and conditions upon which foreign insurance companies may be admitted into the state, and upon which they shall be entitled to do business herein, among which is a provision that they shall file with the insurance commissioner a power of attorney authorizing a citizen and resident of the state to accept service of process in any proceeding in any of the courts of the state or of the United States therein, and upon whom service may be made; and by section 17 it is expressly declared that “the admission of an insurance company to do business in the state shall not be denied by the commissioner when it makes and tenders a full compliance with the provisions of this act.” It is clear, therefore, that, when a foreign insurance company complies with the conditions precedent as prescribed in the act of 1887, it is entitled to a license to do business in the state, although it has not complied with the provisions of the former law on the subject, and hence such law must be regarded as repealed by implication. And when so licensed it is lawfully here, and may enforce its contracts in the courts of the state. It is admitted that at the time — 341 — the note and mortgage in question were executed the plaintiff had fully complied with all the terms and conditions precedent to its right to do business in the state as prescribed in tbe act of 1887, and tbat it bad been duly licensed by tbe insurance commissioner for that purpose, and hence it is no defense to this suit tbat it bad not executed and recorded tbe power of attorney required by sections 8 and 9 of tbe act of 1864. 2. Tbe other defense sought to be made is only deserving of a very brief notice. It is sufficient to say tbat tbe provisions of section 3580 of Hill’s Ann. Laws, as amended in 1889 (Laws 1889, p. 64), tbat every foreign fire and marine insurance company doing business in this state shall have one head or general office in tbe state, under tbe charge of an officer known as its “ general agent,” to whom all other agents shall report not less frequently than once a week, etc., is not made a condition precedent to the right of such a corporation to do business in tbe state, and a failure to comply therewith will not render tbe contract of a foreign insurance company doing business in this state under a license regularly issued by tbe insurance commissioner void and unenforceable in tbe courts of the state. A failure in this regard may perhaps be a sufficient ground for tbe revocation of a license, or for some proceeding by the state to prevent tbe delinquent company from doing business here, but it constitutes no defense in behalf of a private individual to an action brought against him on a contract made in this state between tbe company and himself. It fol — 342 — lows that there is no error in the record, and the decree of the court below is affirmed. Affirmed.