Maxwell v. Church

[490] The opinion of the court was delivered by Smith, J. : Section 1 of the non-resident-agency law, set out in the statement, prohibits the superintendent of insurance from issuing a license to a nonresident agent, and provides that when a resident agent removes from the state the authority theretofore given shall be revoked. An order made by the superintendent under this section operates directly against the agent himself. Section 2 of the act prohibits any fire insurance company from authorizing or allowing any person, agent, firm or corporation, being a non-resident of this state, from issuing or causing to be issued any policy of insurance on property located in Kansas. The prohibition of this section applies to the offending insurance companies, and not their agents. The same may be said of section 3. The authority of the superintendent under said section is" confined to a revocation of the license of the insurance company in case it has permitted any person of agent, a non-resident of this state, to procure or issue policies of insurance on property in Kansas. It will be seen that, except in the first section of the law, no power over the licenses of agents is given to the superintendent of insurance. It is clear that the acts of the superintendent of insurance were not justified under chapter 161 of the Laws of 1889. In the return the defendant avers also that plaintiffs have violated sections 18 and 23 of chapter 93, Laws of 1871. This act is entitled “An act to establish an insurance department in the state of Kansas, and to regulate the companies doing business therein.” Section 18 (Gen. Stat. 1899, § 3260 ; Gen. Stat. 1897, ch. 74, § 123) reads : “Sec. 18. It shall be unlawful for any person, company or corporation in this state, either to procure, [491] receive or forward applications for insurance in any company or companies not organized under the laws of this state, or in any manner to aid in the transaction of the business of insurance with any such company, unless duly authorized by such company and licensed by the superintendent of insurance, in conformity to the provisions of this act; and any person violating the provisions of this section shall be liable to a penalty of five hundred dollars for each offense, to be collected as other penalties under this act.” This section could be better understood if it followed the succeeding section 19. We think it should be read as a part of or as supplemental to section 19, and in that connection its penalties are visited on agents of foreign insurance companies doing business in Kansas without due authority from the companies they claim to represent, and unless licensed as agents by the superintendent of insurance. Section 28 (Gen. Stat. 1899, §3265; Gen. Stat. 1897, ch. 74, §122) of the same act provides : “Sec. 23. The provisions of this act shall apply to individuals and partners, and to all companies and associations, whether incorporated or not, now or hereafter engaged in the business of insurance. It shall be unlawful for any company, corporation or association, whether organized in this state or elsewhere, either directly or indirectly, to engage in the business of insurance, or to enter into any contracts substantially amounting to insurance, or in any manner -to aid therein, in this state, without first having complied with all the provisions of this act. And any corporation, company or association violating the provisions of this section, and any individual, company, association or corporation aiding in any manner, either as agent or otherwise, in such violation, shall be liable to a penalty of five hundred dollars, to be collected as other penalties under this act.” It is apparent that the purpose of section 23 is to prohibit the business of insurance being carried on by [492] any company without having first received a license so to do from the superintendent of insurance. It has no application to companies that are licensed and have complied with all the provisions of the statute. We find no provision of law which justifies the defendant in revoking the licenses of plaintiffs for the reasons given in the return of the superintendent of insurance to the alternative writ. A peremptory writ of mandamus will be allowed.