Germania Insurance v. Swigert

Mr. Justice Scholeield delivered the opinion of the Court: This appeal is prosecuted directly to this court, instead of to the Appellate Court, by virtue of section 2 of the act of June 3, 1879, amending section 88 of the Practice act, (Laws of 1879, p. 222,) because the State is interested in the result. Section 29, of chapter 73, of the Eevised Statutes of 1S74, is as follows: “Whenever'the existing or future laws of any State of the United States, or any other kingdom or country, shall require of insurance companies incorporated by or organized under the laws of this State, and having agencies in such other State, kingdom or country, any deposit or securities in such State, kingdom or country, for the protection of policy holders or otherwise, of any payment for taxes, fines, penalties, certificates of authority, license fees or otherwise, greater than the amount required for such purposes from similar companies of other States by the then existing laws of this State, then, and in every such case, all companies of such States establishing, or having heretofore established, an agency or agencies in the State, shall be and are hereby required to make the same deposit, for a like purpose, with the Auditor of this State, and to pay to the Auditor, for taxes, fines, penalties, certificates of authority, license fees and otherwise, an amount equal to the amount of such charges and payments imposed by the laws of such State upon the companies of this State and the agents thereof: Provided, that the payment required of such foreign companies shall in no case be less than required by this act.” The constitutionality of this section was sustained in Home Ins. Co. v. Swigert, 104 Ill. 666, and the only question upon it now presented for our determination is, whether it becomes operative at the time of the enactment of the law, with the designated requirement, by the foreign State, or not until a company acting under the laws of this State shall have agencies for the purpose of engaging in business in such foreign State. The court below held the former, and counsel for appellant contend for the latter. Appellant’s counsel contends, that the words “and having” are qualified by the word “whenever,” so that the sentence should read, “whenever the existing or future laws of any State * * * shall require, * * * and when such companies shall have agencies in such other State,” etc. But this is, palpably, contrary to the natural meaning of the language as employed in the section. The time when is, plainly, “whenever the existing or future laws of any State * * * shall require,” etc. Does a law any the less require á thing to be done because there is no present subject matter upon which to operate? The requirement of the law is but the declaration of the rule to be observed, and it must antecede the facts which call it into action. The existence of the law, and the existence of a present subject matter upon which it will take effect, are entirely distinct things. The former depends upon the will of the legislature, while the latter depends upon the conduct of the people in the respect contemplated by the law, after the law is in force as a rule of action. Thus, the law prohibiting sales of spirituous liquors without a license, is none the less the law because nobody may want to sell liquors. • It does not actively operate upon any particular person until some one wants to sell liquors; but whenever that occurs, it is actively operative upon that person, although it may be years after the law first went into force as a rule of action. So, here, the existing law in Louisiana requires of insurance companies organized under the laws of other States, (and therefore of this State,) and having agencies in that State, to pay an annual license of $400, etc. The words, “and having agencies in this State,” as they occur in that law, are plainly but a part of the description of the subject matter upon which the law is to operate, and are not a statement of the time when the law is to exist or be in force. The existing law makes the requirement,—declares the rule,—and it remains in force just as well without as with a present subject matter upon which to actively operate. And since it is the existence of the law, and not the application of the law to its subject matter, that determines when section 29 shall be obligatory, it must follow that it is unimportant whether insurance companies organized under the laws of this State have agencies in the State of Louisiana or not. The manifest purpose of this enactment is to restrict insurance companies of other States in doing business in this State, by precisely the same restrictions with which insurance companies of this State are restricted in doing business in such other States, respectively, and so, necessarily, our law must read, with respect to insurance companies of Louisiana doing business in this State, in the exact language and meaning of the law of Louisiana with respect to insurance companies of other States doing business in that State. But the contention of counsel for appellant leads to the absurd (as it seems to us) result, that because the State of Louisiana has' imposed upon all foreign insurance companies such severe restrictions as to •practically prohibit Illinois insurance companies from doing business in that State, no restriction is imposed by the laws of this State upon insurance companies of Louisiana doing business in this State, other than such as are imposed upon domestic companies, since it is evident that the sole reason ■why Illinois insurance companies have no agents for the transaction of business in the State of Louisiana, may be, and probably is, because of the severity of the restrictions imposed by the laws of that State upon insurance companies of other States doing business in that State. Plainly, it is intended "that as the law of that State operates upon us, so the law of "this State must operate upon them, and the same payment which our companies must make as a condition to doing business there, their companies must make as a condition to doing business here. Moreover, it may be added, as a circumstance strongly corroborative that this was the legislative intent, that no provision is anywhere to be found, in any statute, whereby the Auditor can ascertain whether insurance companies organized under the laws of this State have agencies in the State of Louisiana, or in any other foreign State. The Auditor can not be expected to travel abroad in quest of such information, .and he can employ no messenger to do so unless expressly authorized by statute, of the existence of which there is no pretense. No statute authorizes him to act upon reports, in this respect, made by officers of a foreign State, even if reports •are there made, of which there is no evidence; and no statute requires insurance companies organized under the laws of this State to make report to the Auditor whenever they establish agencies in foreign States, of that fact. So, in a legal point of view, it is impossible for the Auditor to obtain evidence of the facts upon which, alone, as appellant’s counsel «contends, this section becomes operative,.and hence, if appellant’s contention be maintained, the legislature has simply -enacted a section without providing legal means for its enforcement. Such a conclusion is never admissible, unless by no reasonable construction of the language employed is it possible to escape it. The language of the court in Home Ins. Co. v. Swigert, 104 Ill. 653, is to be read with reference to the questions then before the court. The question of whether insurance-companies of this State must have agents doing business in the State of Louisiana, before the law of this State, supra, can operate upon insurance companies of Louisiana doing business-in this State, was not before the court, and no rule in that-respect was intended to be there announced. Agreeing with the court below in its construction of the-section, the judgment must be affirmed. Judgment affirmed.