Rockhold v. Canton Masonic Mutual Benevolent Society

Mr. Justice Scholfield delivered the opinion of the Court: Appellee assumes to be incorporated under and by virtue of the provisions of sections 29, 30 and 31, of chapter 32, of the Revised Statutes of 1874, which provide for the creation of “corporations not for pecuniary profit.” “The particular business and objects” of the corporation, as declared in the ■certificate of the promoters filed in the office of the Secretary of State, are, “to give financial aid and benefit to the widows, orphans and heirs or devisees of deceased members,” and the ■certificate of incorporation is a license only for “the particular business and objects” enumerated in the certificate of the promoters. (See statute, ubi supra.) The only difference that •occurs to us, between a corporation organized under a general law, and one created by a special statute, material to be here considered, is, that in the former we look to the certificate of the promoters, while in the latter we look to the special statute, to ascertain the scope of the powers of the corporation. The rule for construing the instruments must necessarily be the same, namely, the powers specifically enumerated, and such other powers as are incidental or necessary to carry those powers into effect, but none others, may be exercised by the corporation. Caldwell v. City of Alton, 33 Ill. 416 ; Marsh v. Astoria Lodge, 27 id. 421; Trustees v. McConnel, 12 id. 140;. Metropolitan Bank v. Godfrey, 23 id. 579; Chicago v. Rumpff, 45 id. 90; The People v. Chicago Board of Trade, id. 112; Bacon on Benefit Societies and Life Insurance, sec. 47. The certificate here in suit assumes to bind the corporation, to the payment to Charles W. Rockhold, upon his arriving at seventy years of age, or after he has been a member of this, society, in good standing, for twenty-five consecutive years, or, upon his death, to his wife, if living, if not, to his children or to his legal representatives, the sum of one dollar for each member of Division A, within sixty days after due notice, etc.. It is plain that an undertaking to pay a given sum of money to a member of a society upon his arriving at seventy years-of age, or after he has been a member of the society, in good standing, for twenty-five consecutive years, is not “intended to-benefit the widow, orphans, heirs and devisees of a deceased' member.” Such an undertaking is to pay in the lifetime of the member, and to him alone, and he is thus the sole beneficiary. But an undertaking “intended to benefit the widows, orphans, heirs and devisees of deceased members,” must be an undertaking to pay, after the death of the member, directly to the widow, orphans, heirs or devisees of such deceased member, or, at all events, in such way that they shall be the immediate-recipients of the use of the sum to be paid, for we must assume that the word “benefit” is used in its legal sense,—that of the-direct and absolute enjoyment of the sum to be paid, or of its. use. In so far, therefore, as this certificate assumes to bind the society to the payment to Charles W. Rockhold of the sum named upon Ms arriving at seventy years of age, or after he has been a member of the society, in good standing, for twenty-five consecutive years, it is beyond the power conferred by the charter of the corporation. The State of Ohio ex rel. v. Central O. M. B. Association, 29 Ohio St. 399; The People ex rel. v. Welton, 46 N. Y. 477; Bacon on Benefit Societies and Life Insurance, sec. 46; Niblack on Mutual Benefit Societies, sec. 3. But counsel for appellant contend, that, conceding the law to be thus, contracting to pay a sum to a member on his arriving at seventy years of age, or after he has been a member of the society, in good standing, for twenty-five consecutive years, is neither immoral in itself nor prohibited by any statute, and therefore that, the contract having been fully executed by appellant by paying all the assessments made upon him, appellee is estopped to plead its want of authority to thus contract. It may be conceded, that, apart from any question of public policy, there is notMng immoral in the mere act of contracting to pay money to appellant upon the conditions expressed in the certificate; but it can not be conceded that thus contracting is not within any statutory prohibition. In the solution of this question it will be necessary to determine, first, is this undertaking, apart from arbitrary statutory definition or classification, life insurance; second, if life insurance, is it such as was originally within the contemplation of the act of March 26, 1869, in relation to life insurance; third, if such as was originally within the contemplation of that act, has it been excepted from the effect of that act by anything in the act of April 18, 1872, in relation to the formation of corporations not for pecuniary profit, either before or since its amendment by the act of March 28, 1874. First—That the undertaking evidenced by this certificate is one of insurance, if considered apart from all arbitrary statutory classifications or definitions, can not be seriously questioned. It is an undertaking by a society, in view of the ascertained age and condition of health of one of its members, in consideration of a present payment of a sum of money and of the undertaking to pay other contingent sums in the future by him, to pay a sum to him, or to his widow or heirs, etc., contingent as to time, upon the duration of his life; and it has been held that the undertaking is not the less a contract of insurance because the amount to be paid by the corporation is not a gross sum, but a sum graduated by the number of members holding similar contracts; nor because a portion of the premium is to be paid upon the uncertain periods of the deaths of such members; nor because, in case of non-payment of assessments by members, the contract provides no means of -enforcing payment thereof. (Commonwealth v. Wetherbee, 105 Mass. 160; The State v. Citizens’ Benefit Association, 6 Mo. App. 163.) Nor is it any the less a contract of insurance because it is to pay certain sums of money as endowments to living members. Endowment and Benevolent Association v. The State, 35 Kan. 253; The State v. Mutual Aid Association, id. 51; The State v. Farmers’ Benevolent Association, 18 Neb. 281; The State v. M. Ex. Society, 72 Mo. 146; Briggs v. McCullough, 36 Cal. 542; Bacon on Benevolent Societies and Life Insurance, sec. 17-167; Niblack on Mutual Benefit Societies, secs. 163, 164. Second—The act of 1869 makes no exception, in any of its provisions, as to any class of life insurance. (See Laws of 1869, p. 142.) Its title is, “An act to organize and regulate the business of life insurance,” and we are unable to conceive of language more comprehensive as to the general subject than that employed in the several sections, where, if exceptions or limitations had been intended, they would have been expressed. Thus we find this language in section 1: “That before any life insurance company goes into operation, under the laws of this State, a guarantee capital of $100,000 shall be paid in money, and invested,” etc. In section 2: “No policy shall be issued until a certificate from the Auditor has been obtained authorizing such company to issue policies.” In section 5: “Every life insurance company incorporated in this State shall, on or before the 1st of March in each year, transmit to the Auditor, and file in his office, a statement of its business standing,” etc. In sections 3 and 10 are imposed like restrictions upon all foreign companies doing business in this State. It can not be said that mutual companies were not in the mind of the legislature at the time of this enactment, because it is provided in section 4 that “the subscribers or holders of guarantee stock in a life insurance company organized on the mutual or stock and mutual plan, shall choose the first board of directors, and at all subsequent elections they shall choose one-half of the directors and the holders of mutual policies the other half, until the redemption of the guarantee stock, when the holders of the mutual policies shall elect all of the directors.” And in. section 14, that “life insurance companies doing business in this State which do business upon the principle of mutual insurance, or the members of which are entitled to share in the surplus funds thereof, may make distribution of such surplus, ” etc. And so it is clear and beyond dispute, that when the - language quoted from the sections swpra was employed, it was intended to include “mutual” as well as “stock” companies. But, counsel urge, the statute speaks of “valued policies,” the “net value of policies,” and of the “valuation of policies,” whereas certificates like that in suit are incapable of valuation, and therefore such insurance could not have been within contemplation. To this it may be answered, first, that if the legislature evince, by the language employed, as we think they do, that it was clearly intended to prohibit all life insurance except such as shall be in conformity with its provisions, it can not be of the slightest significance that there was some form of insurance with which the members of that body were not familiar, and to which many of the restrictions are practically inapplicable. Such a consideration addresses itself to the legislature, alone, as a reason why the act should he amended, excluding from its provisions the general prohibition. Second, it is said in Bacon on Benefit Societies and Life Insurance, section 166: “Regarding the certificate of membership as a contract similar to a life insurance policy, it is what is termed a ‘valued policy.’ ” And, quoting from Lycoming Insurance Co. v. Mitchell, 48 Pa. St. 372, that such a policy “is not to be understood to be one which estimates the value of the property insured, merely, but which values the loss, and is equivalent to an assessment of damages in the event of a loss,” the author adds: “In this sense all policies of life insurance, or benefit certificates, are valued policies, for all specify the amount which the insurer is to pay, without question as to the money value of the interest destroyed. And the policy is not to be considered as open as to the amount, because the amount payable is to be determined by the number of members of a certain class or of the society.” A final contention of counsel, to be noticed under this point, is, that we held in Commercial League v. The People, 90 Ill. 166, and Martin v. Stubbings, 126 id. 387, that the act of 1869, in relation to life insurance, had no application to beneficiary certificates like the present. This is a misapprehension of what was decided in those cases. We did not find it necessary, in either of those cases, to consider the effect of the act of 1869 in relation to life insurance as it was before it was affected by the act of 1872, as amended by the act of 1874, but the cases were considered solely with reference to the act as it was, as affected by the act of 1872 as thus amended. It was in the first named of those cases conceded that the appellant was an insurance company, “in the general and enlarged sense of the term,” but it was said: “If appellant was to be regarded as an insurance company, within the meaning of the act of 1869, the act of 1874 has so amended the act of 1869 that companies organized and doing business, as was appellant, do not, since the amendment, fall within the act of 1869.” In the last named case, what is said in reference to whether a certificate of membership in a mutual benevolent society is a policy of insurance, is predicated upon the statutes as affected by the amendatory act of the 28th of March, supra. In that case the society admitted its liability, and the only question was, whether it was to the assignee of the certificate or to the widow, and no question, therefore, was before the court as to the power of the corporation to issue the certificate in the first instance. Third—The act of April 18,1872, (Laws of 1871-2, p. 296,) authorized the formation of corporations in the manner therein pointed out, among which, as provided by its 29th to 34th sections, inclusively, are corporations “not for pecuniary profit,” but corporations for the purposes of banking, insurance, real estate brokerage, the operation of railroads, and the business of loaning money, are expressly excepted, by the 1st section, from the act. It follows, therefore, (the undertaking in this certificate being life insurance, within the contemplation of the act of 1869 in relation to that subject,) that it is impossible it could have been authorized to have been entered into by a corporation formed under this act of April 18, 1872. But on the 28th of March, 1874, the legislature amended the 31st section of this act by adding thereto the following: “Associations and societies which are intended to benefit the widows, orphans, heirs and devisees of deceased members thereof, and where no annual dues or premiums are required, and where the members shall receive no money, as profit or otherwise, shall not be deemed insurance companies.” It may be conceded that this language is in form expository; but the legislature can not instruct the judiciary how to construe certain statutes, any more than the judiciary can instruct the legislature what statutes it shall enact. (Ogden v. Blackledge, 2 Branch, 272; Ashley’s case, 4 Pick. 23.) But we concede that in determining the meaning of obscure clauses in statutes, it may often be important to look into other enactments by the same legislature, having reference to the same subject matter, as showing the sense in which the language was evidently employed; but it is manifest that the enactments of a subsequent legislature, composed of different members, could have no more value, in that respect, than the acts of any other department of government. There are here no contemporaneous enactments of the General Assembly of 1869 having the slightest bearing upon the question of life insurance, nor are there any contemporaneous enactments of the General Assembly of 1872 throwing light upon the corporation act of that year. We must therefore assume that the General Assembly of 1874 knew what we hold, namely, that insurance by members of benevolent societies, of each other, upon the assessment plan, for the mutual benefit of themselves or of their respective widows, orphans, heirs or devisees, is life insurance, within the meaning of the original act of 1869 upon that subject, and that corporations for that purpose, therefore, can not be formed under the act of 1872; but since many persons were desirous of forming corporations “for the benefit of the widows, orphans, heirs and devisees of deceased members,” without being subject to the insurance laws, and believing that the public welfare would be subserved thereby, it was determined to withdraw such corporations from the effect of the act of 1869, and to authorize their formation under the act of 1872; and this is sustained by the recital in the emergency clause, which assumes that such enactment was necessary to authorize the formation of the corporations under the act of 1872. The recital is : “Whereas, many associations are desirous of organizing forthwith for the purpose aforesaid, ” (for the benefit of the widows, orphans, heirs and devisees of deceased members,) “whereby an emergency exists why this act should take effect forthwith.” Golden Rule v. The People ex rel. 118 Ill. 492, is directly in point, and conclusive upon this question. In that case the society provided for the establishment of a relief fund, by voluntary contributions from the members of the order, from which, upon the death of a member, an amount, not exceeding $1500, should he paid to such person as should have been designated by the deceased, and a sum, not to exceed $500, was to be distributed equally between the two members holding valid and existing certificates next' in number, both above and below the number of the certificate of such deceased member; and it was held this was insurance, the formation for corporations for which is prohibited by the 1st section of the act of 1872, relating to the formation of corporations, and that it was not within the amendatory act of 1874, which authorizes the formation of .corporations intended to benefit widows, orphans, heirs and devisees of deceased members. The amendatory act of 1874 authorizes this certificate, to the extent that it is for the benefit of the widow, orphans, heirs and devisees of Bockhold; but it leaves the law precisely as it was before, with reference to the clause which obligates payment to be made to him upon arriving at seventy years of age, or after having been a member of the society, in good standing, for twenty-five years,—that is to say, prohibiting corporations to be formed therefor under the act of 1872, and prohibiting the making of such contract, and prohibiting the issue of the certificate by corporations which have not complied with the provisions of the act of 1869, in reference to life insurance. We do not regard the fact that the legislature has, by the act of 1874, and by subsequent acts, manifested a willingness to restrict the operation of the general laws in relation to insurance in behalf of benevolent associations, from time to time, and to broaden correspondingly the scope of benevolent associations, as indicative of the meaning of prior legislation on that subject. What the prior acts mean, their words declare. What was originally within the operation of insurance laws remains there until withdrawn therefrom by subsequent legislation, and each subsequent legislative act must clearly show what is intended to be withdrawn from the operation of prior acts. We stated in Commercial League Association v. The People, supra, the scope of the amendatory act of 1874, thus: “Three things seem to be required to bring the company within the amendment of the act: First, it must be an association intended to benefit the widows, orphans, heirs , and devisees of the deceased members; second, no annual dues or premiums shall be required; third, the members shall receive no money, as profit or otherwise.” In nothing which we have since said have we ever held that it extended any further. Benefit Association v. Blue, 120 Ill. 121, was an action on a life benefit certificate issued by a corporation formed under the act of June 18, 1883, which is much more comprehensive than the act of March 18, 1874, extending beyond the enumerated objects of that act to “life indemnity or pecuniary benefits to relatives by consanguinity or affinity, accident or permanent disability indemnity to members thereof, devisees or legatees of deceased members, ” etc. There was no question there, as there is here, whether the risk was within the statute, but the sole question was, whether the beneficiary named in the certificate was one who could, under the language of the statute, be authorized to receive the amount insured, and it was held that was included in the right of the assured, given by the statute, to take a policy on his own life payable to his devisee or legatee,—and that, it was said, was not prohibited by any positive law, and the company was, therefore, estopped to plead ultra vires. The construction of the statute then given being authorized, as we still think it was, the remark in regard to estoppel, though correct enough, was not indispensable to the decision made. Nothing decided or said in the opinion in that case is opposed to the views we have expressed in the present case. The 9th section of the “Act to provide for the organization and management of corporations, associations, etc., for the purpose of furnishing life indemnity or pecuniary benefit to widows, orphans, heirs, relatives and devisees of deceased members, or accident or permanent disability to members thereof,” approved June 18, 1883, does not assume to extend the powers of existing corporations, or to make valid acts done by them beyond the scope of their powers, but it simply professes to exempt the corporations or societies created for the enumerated purposes from the operation of the insurance laws, and to require them to comply with the provisions of that act, and it is prospective, only, in its operation. That act, moreover, was not adopted until more than eight years had elapsed after the certificate in suit was issued, and until nearly two years had elapsed after the society had ceased to issue similar certificates. And it is not claimed that this corporation has sought to amend its charter, by filing the requisite amendatory certificate with the Secretary of State, so as to invest itself with additional powers conferred by this act. In no view, therefore, can it have any application to the present case. The clause in the certificate providing for the payment to Rockhold upon his arriving at seventy years, or after having been a member of the society, in good standing, for twenty-five years, being prohibited because the corporation had not complied with the insurance laws, is void, and can not be enforced, and the doctrine of estoppel can have no application to it. Penn v. Bornman, 102 Ill. 523. It follows, that the judgment of the Appellate Court must be affirmed. Judgment affirmed. Mr. Justice Baker, having passed upon this ease in the Appellate Court, took no part in its decision here.