Aetna Ins. v. Robertson , 126 Miss. 387 ( 1921 )

Ethridge, J.,

delivered the opinion of the court (after stating the facts as above).

The first question presented for decision under the assignments of error is Avhether the revenue' agent has a right to institute suit against these defendants under the. antitrust statute. In other words, it is contended by the appellant that as to the insurance companies the insurance commissioner has the sole and exclusive power of instituting suit, by directing the attorney general or the district attorneys to institute same. This contention is based upon certain statutes in the Insurance chapter of the Code. Section 2550, Code of 1906 (section 5014, Hemingway’s Code), reads as follows:

“There is hereby established in this state a separate and distinct department of insurance, which shall be charged with the execution of all laws now in force or which may be enacted hereafter, relative to all insurance, including indemnity or guarantee and other companies, . . . associations or orders placed under this department.” 1

Section 2554, Code of 1906 (section 5018, Hemingway’s Code), reads as follows: .

“The commissioner shall be vested with all the powers, and charged with all the duties, and subject to all the obligations and penalties now vested in, conferred and imposed upon the secretary of state, auditor of public accounts, state treasurer, or any. other officer charged with the execution of laws relative to subjects recited in the first section of this chapter.” , .

Section 2561, Code of 1906 (section 5026, Hemingway’s Code), reads as follows:

“Whenever it shall appear to the commissioner from any report submitted or examination made undér the provisions of this chapter or otherwise, that any of said companies or orders has failed to comply with the law, or if it, its officers or agents, refuse to submit to examination or to perform any legal obligations in relation thereto, or that its condition is such as to, render its further proceeding1 hazardous to the public or its stockholders or policy holders, it shall be the duty of the attorney general, or the district attorney under his direction, on notice by the commissioner to institute' such proceedings as are authorized by law and to prosecute1 the same to final judgment, and the commissioner shall also revoke or suspend all certificates of authority granted to such concern or its agents to do business in this state, as hereinafter provided.”

It is the contention of the appellant that under these sections the insurance commissioner has been vested with the exclusive power of bringing suits to enforce statutes which are obligatory upon insurance companies; that the language of these statutes, construed in the light of the numerous powers conferred upon the insurance commissioner to regulate the business of insurance companies, and to grant license and revoke license, conferred upon him the exclusive power to deal with these subjects.

The suit was brought for a violation by the insurance companies of the provisions of chapter 145, Code of 1906, and amendments thereto (chapter 69, Hemingway’s Code).

By section 5004, Code of 1906, as amended by the Laws of 1910, chapter 222 (section 3286, Hemingway’s Code), it is made the duty of the district attorney and of the attorney general to enforce these laws and to recover the penalties for the violation of these laws. Section 3286, Hemingway’s Code, reads as follows:

“Any person, corporation, partnership, firm or association, or any representative or agent thereof, violating any of the provisions of 'this chapter, shall forfeit not less than twenty dollars nor more than five thousand dollars for every such offense, and each day any person, corporation, partnership, firm, or association, shall continue to do so, shall be a separate offense; and the penalty in such cases can be recovered by the state on the relation of the attorney general or district attorney; and it shall be the duty of the several circuit judges to specially call the attention of the grand juries to this. provision; but no prosecution, pain, penalty or forfeiture for offenses committed under laws already existing át the time of the adoption of. this act, shall be in any wise remitted, released or taken away by reason hereof or anything herein contained, but the same shall be proceeded with, adjudged, imposed and inflicted in conformity with laws already existing and in conformity with all the provisions of chapter 145, Code of Mississippi of 1906, which may he constitutionally applicable thereto.”

The statute above quoted placed the enforcement of the Anti-Trust Laws upon the attorney general and district attorney specifically without reservation or condition, and, in our opinion, this action is not dependent upon the direction of the insurance commissioner.,

By section 4738, Code of 1906 (section 7056, Hemingway’s Code), the state revenue agent is given power as follows:

“The state revenue agent may appoint a sufficient number of deputies.,. He shall have power and it shall be his duty to proceed by suit in the proper court against all officers, county contractors, persons, corporations*, companies, and associations of persons for all past-due and unpaid taxes of any kind whatever, for all penalties or for-' feitures for all past-due obligations and indebtedness of any character whatever owing to the state or any county, municipality or levee board, and for damages growing out of the violation of any contract with the state or any county, municipality, or levee board, and shall have a right of action and may sue at law or in equity in all such cases where the state or any county, municipality of levee board has the right of action or may sue. And in all cases of valuation or ownership of property which has escaped taxation, may have subpoenaed witnesses to testify before the board of supervisors, board of mayor and aldermen or levee board.”

It will be noted by the express terms of this statute that the power of the revenue agent extends to bringing suits “for all penalties or forfeitures,” and this court in Dukate v. Adams, Revenue Agent, 101 Miss. 433, 58 So. 475, expressly held that the provisions of the statute on trusts and combines conferring power upon the attorney general and district attorney to bring suit and enforce the AntiTrust Laws was not exclusive, but that under the section last quoted, giving power to the revenue agent to bring suit, embraced suits for the penalties imposed for the violation of the Anti-Trust Laws. The Anti-Trust Laws bave been amended from time to time especially by the Laws of 1908, chapter 119 (Hemingway’s Code, sections 3281-3284), and the Laws of 1910, chapter 222 (Hemingway’s Code, sections ■ 3286, 3287), and in none of these enactments enacted since the creation of the department of insurance has any reservation been made in favor of the insurance companies, or in favor of the insurance commissioner.

By section 2650, Code of 1906 (section 5116, Hemingway’s Code), it is provided: “Compliance with the provisions of this chapter, as to deposits, obligations and prohibitions, and the payment of taxes, fees and penalties by and upon foreign insurance companies, may be enforced by the commissioner by suit in the- name of the state.”

It will be noted that this power to bring suit is limited to certain specified subjects, and such subjects as are dealt with in the provision of the chapter on insurance. It is a general rule of construction that the enumeration of jpowers in a section will be held to exclude all powers not enumerated, and the insurance commissioner’s power to bring suit in the name of the state is measured by the terms of this statute. He may also give direction under the provisions of section 2561, Code of 1906, (section 5026, Hemingway’s Code), to the attorney general or the district attorney as to the things therein provided, for.

In our opinion the powers conferred upon the insurance commissioner have no relation to the bringing of suits for violation of the Anti-Trust Laws. The Anti-Trust Laws are not germane to the subject of insurance. They are wholly unrelated, and, though insurance companies may violate the Anti-Trust Laws, that does not change the relation of the two chapters. They deal with different subjects. No. doubt it would be proper for the insurance commissioner to call attention of the attorney general or of the district attorney to the fact that the Anti-Trust Laws were being violated by the insurance companies, should he discover that fact, and it would be the duty of the attorney general, on being so notified, to investigate the matter and bring suit should the facts justify his doing so. But it was not the purpose of the legislature in our view to give the insurance commissioner the exclusive right to bring suits against the insurance companies for violating the Anti-Trust Laws.

There are many instances in the law where several different officers may institute a suit to represent the public. For instance, a board of supervisors may institute suits on behalf of the county; a district attorney has also power to bring suits on behalf of the county. The attorney general also may bring a suit on behalf of the county, as may also the revenue agent. In most of these cases each of these officers has the power to bring the suit, and as said in the case of Robertson, State Revenue Agent, v. Bank of Batesville, 116 Miss. 501, 77 So. 318, the first officer having the power to bring the suit has the right to conduct the litigation so long as he acts in good faith.

In certain cases the county treasurer is given the power to sue on behalf of the county; the board of supervisors also has the poAver, the district attorney has the power, and the revenue agent has the power. Indeed the state revenue agent’s office was created expressly for the purpose of bringing suits that other officers could bring, but had neglected to bring, resulting in loss to the state, counties, and municipalities; and if the court should construe all statutes which give an officer power to sue as being exclusive, w,e would put the revenue agent out of business, contrary to the intention of the legislature and the public.

Again it is insisted that insurance .is a business charged. with a public use, and that it does not, for that reason, come within the purview of the statute in' reference to trusts and combines. It is hard to reconcile this contention with the express provisions of chapter 119, Laws of 1908 (section 3282, Hemingway’s Code), which expressly prohibits the fixing or limiting of prices or premiums to he paid for insuring property against loss or damage by fire, lightning, storm, cyclone, tornado, or any other hind of policy issued by any corporation, partnership, or individual, or association of persons. The case of Telephone Co. v. State, 99 Miss. 1, 54 So. 446, is relied upon, but in our opinion that authority is Inapplicable: First, because the statute expressly forbids the fixing or limiting of the price to be paid for insurance; and, second, no state authority has any power to fix the rate to be charged for insurance.

It is next insisted that the court was without.authority to appoint receivers, and that it had no jurisdiction to do so. It will be noted from the statement of facts that the Revenue Agent sued out an • attachment in chancery under section 536, Code of 1906 (section 293, Hemingway’s Code), and that certain agents in the state having moneys, property, and effects of the insurance companies were made defendants, to the suit, and effects in their hands were impounded by the process so served. It would also appear from the statement of facts that the defendants had appeared and answered and submitted themselves to' the jurisdiction of the court, and therefore the court had full jurisdiction over the defendants, and had the power of rendering a final judgment against each of the defendant insurance companies. It will also appear that after the filing of the bill and the answer the insurance companies were withdrawing their assets from the state, and had discontinued business in the state, having withdrawn from the state, as shown by their answer to the amended bill.

It is insisted that the word “penalties” is not embraced in the language of section 536, Code of 1906 (section 293, Hemingway’s Code), and that therefore an attachment, did not lie in chancery, and the court was without jurisdiction. This section reads as follows:

“The chancery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of any contract, express or implied, or arising ex delicto against any nonresident, absent or absconding debtor, who has lands, and tenements within this state, or against any siich debtor and persons in this state who have in their hands effects of, or are indebted to, such nonresident, absent or absconding debtor. The court shall give a decree in personam against such nonresident, absent or absconding debtor if summons has been 'personally served upon him, or if he has entered an appearance.”

The attachment lies under this section upon demands founded upon any indebtedness, whether the same be legal or equitable. It is contended that the word “indebtedness” does not embrace a statutory penalty. We think this court has settled this contention adversely to the appellant by the case of W. U. Tel. Co. v. Sullivan, 70 Miss. 447, 12 So. 460. In that case the statutory penalty was sought to be recovered in a justice of the peace court, and it was contended that the justice had no jurisdiction because- the jurisdiction was not in terms applicable to penal' statutes. The penalty there sought to be recovered was twenty-five dollars, and the justice’s jurisdiction was limited to fifty dollars. The court in its opinion said:'.

“The language of the clause,' ‘founded on any penal statute,’ contained in the Code of 1857, was left out of that of 1871, not to deprive justices of the peace of such jurisdiction, but because it was unnecessary to retain this language, in view of the very comprehensive terms em-' ployed by the section, which was manifestly designed to enlarge and extend, and not circumscribe, the jurisdiction of these magistrates. The word ‘debts’ embraces penalties recoverable by civil action. In its largest sense, it signifies anything for which one is liable or bound to another, or which may be exacted of one.”

In the case of Dollman v. Moore, 70 Miss. 267, 12 So. 23, 19 L. R. A. 222, it was held that, independently of the statute, by virtue of its general equity powers, the court may, without a judgment at law and nulla bona return, subject to the demands of creditors the effects in this state of a non-resident. That case was an attachment in chancery, where the attachment failed because the resident defendants, the trustees of a school, Avere not persons within the meaning of vthe statute. But the court held'that equity had the poAver to take charge of the property of nonresident defendants and subject it to the demands,of the resident.

In the case before us the court had jurisdiction of the defendants generally at the time of the appointment of the receivers, and its power to appoint receivers was not dependent upon the rightfulness of the attachment sued out; that is, not dependent upon the question of the statutory jurisdiction. It had jurisdiction both of the demand and of the person, and the court undoubtedly had power to prevent the defendants from withdrawing their property from the state so as to defeat the execution of any judgment it might render. Under the agreed statement of facts some of the agents were insolvent, and a judgment against them would have been fruitless. They were send-, ing the funds coming into their possession out of the state, and it is possible that the judgment would not have been collected, if rendered, if this practice continued. 23 R. C. L., p. 9, section 3; page 13, section 7; 34 Cyc., pp. 17, 19.

The statute on trusts and combines expressly gives the ehancéry court jurisdiction and power to appoint receivers. Of course the power to appoint receivers may be considered to depend wholly upon the proper facts existing to Avarrant the court in so doing.' But Ave think the facts here warranted the court in making the appointment. We do not, think the power to appoint receivers is ■ limited to chapter 213, LaAvs of 1914 (section 4086, Hemingway’s Code), and chapter 142, Laws of 1912 (section 4087, HemingAvay’s Code), but that the power exists Avhenever it is necessary to preseiwe the subject-matter of the litigation Avliile the same is pending.

It is contended that in no vieAy.Avas this a proper case for the appointment of a receiver, because it' is contended that by a reading of the petition for a receiver it will' be seen it is based npon the fact that the answer filed-by the resident defendants, the insurance agents, in response to the attachment, was not full, and did not disclose the funds which had come into their hands after the service of the writ; that they had only answered as to the funds actually in the hands of the resident defendants at the time of the service of the writ; and that the answer stated that the agents were not indebted to the principal defendants, and that they had no effects of the principal defendants on hand except certain stationery, premium books, and matters of that kind, office supplies, etc., of little value. The petition for the appointment of receivers alleged that the nonresident defendants had conspired to defeat the process of the court by instructing their agents throughout the state that their answers should only embrace moneys and effects at the time of the service of the writ, and that they had been requested to remiffiall moneys collected and coming into their hands after the service and up to the» return day; further that the special agents of the insurance companies had gone throughout the state and instructed the local agents to remit all moneys coming into their hands after the service of the writ, and that this was done for the purpose of defeating the process of the court, and that by reason of this moneys would be placed beyond the jurisdiction of the court, and therefore receivers' should be appointed.

It is contended that, inasmuch as according to the view of the appellant the "suit only bound the effects in the hands of the agents at the time of the service, they had a right to remit out of the state; and that the insurance companies had the right »to withdraw from the state all moneys collected between the service of the attachment and the return day, or between the service of the attachment and the date of filing the answer; and that, having this right, the court was not warranted in appointing receivers and directing the agents to turn over to the receivers the funds' collected subsequent to the service of the attachment. Under the evidence and the agreement of counsel moneys collected subsequent to the attachment, but on policies issued prior to the attachment had been remitted in some instances to the insurance companies by their agents.

The appellant takes the position that the attachment served on the agents did not bind the accounts- for premiums unpaid, but which had been contracted prior to the service of the attachment. In section 537, Code of 1906 (section 294, Hemingway’s Code), it is provided that the service of the process in the manner therein stated “shall bind the effects or indebtedness from the time of such service.” The appellee contends that the service not only binds the effects, etc., in the hands at the time of the process, but also all effects, etc., that come into the hands of the agents between the service and the return day.

We think the effect of the service of process is to bind all the effects of the non-resident defendants in the hands of the resident defendants at the time of the service, and at least until answer has been filed, or, if no answer is filed, until the return day. We think that it includes and binds the ■ premiums due upon policies written prior to1 the service of the process but which were collected subsequent to the service of the process. These books of accounts and evidences of debt constitute effects. The word “effects” is a word of very broad signification, and is broader than the word “goods.” It is broad enough at least to cover all personal property. See Words and Phrases, First and Second Series, and Bouvier’s Law Dictionary, title, “Effects.”

Under the chapter on Process it is provided that money, bank notes, bills, evidences of debt, circulating as money, and any judgment or decree belonging to the defendant, may be taken under an execution «or attachment, and sold or disposed of according to the law, and applied to the payment of the execution or in satisfaction of the judgment in attachment. Section 3968, Code of 1906 (section 2975, Hemingway’s Code). By section 3969, Code of 1906 (section 2976, Hemingway’s Code), it is provided that the purchaser of any chose in action, stock, share, interest, judgment, or decree of the defendant, sold under execution or attachment, shall become, the owner thereof, in the same manner as if it had been, regularly assigned to him by the defendant.

The attachment lay?s have in some cases been construed strictly by this court and in others as remedial and therefore liberally. They seem to partáke'of the nature of both remedial statutes and penal statutes. In some sense they are remedial, to be liberally construed, and in other respects as penal to be strictly construed. But, whether they are to be construed strictly or liberally, the court is to give such interpretation as would further the intention of the legislature.

We think in the present case the right to attachment existed on the allegations of the bill, and that the suit comes within the terms of the statute. It is argued that the statute does not apply, because the defendants are not nonresidents within the purview of that section, because they may be served personally with process and personal judgment rendered against them by serving process upon the insurance ^commissioner, who is by statute made the agent of the insurance companies for that purpose, and that that was done in the present case. It is true they may be served with process by serving the insurance commissioner, but nevertheless they are nonresidents, and a judgment for penalties cannot be imposed ágainst them beyond the jurisdiction of this state. In other words, the state could not go into the state of the domicile of the corporations and sue them in personam and get a judgment and levy execution upon the judgment obtained in cases like the present in the state of Mississippi. That being true, the attachment will lie, and the effects in this state may be seized and held to await such judgment as may be rendered. '

The judgment will be affirmed, and the cause remanded to be prbceeded with.

Affirmed and remanded.'