« AnteriorContinuar »
law are not the subject of allegation or of State, and having the official attestations denial in pleading, nor of proof upon the of the Speaker of the House of Representatrial of causes; but that courts would al- tives, of the President of the Senate, and of ways take judicial notice of the law, and the President of the United States, carries, that, upon the suggestion of any doubt as on its face, a solemn assurance by the legisto the existence or provisions of a parlia- lative and executive departments of the govmentary enactment, the court would informernment, charged, respectively, with the itself in the best way it could, not by lis- duty of enacting and executing the laws, tening to proofs, but by inspection of the that it was passed by Congress. The rerecord, if it was in existence, and, if not, spect due to coequal and independent deby looking to the printed statute, or, failing partments requires the judicial department that, by examination of other documents to act upon that assurance, and to accept, where it had been recited, recognized, and as having passed Congress, all bills auacted upon. The record which, as long as thenticated in the manner stated; leaving it existed, was held to import absolute ver- the courts to determine, when the question ity, which not only dispensed with, but ex- properly arises, whether the act, so cluded, all other evidence, which could nei-thenticated, is in conformity with the Conther be aided nor impeached by the jour- stitution. It is admitted that an enrolled nals of Parliament, was the copy of the act act, thus authenticated, is suflicient evidence enrolled by the clerk of the Parliament of itself-nothing to the contrary appearand delivered over into chancery. The ques. ing upon its face—that it passed Congress. tion frequently arose in England, but the But the contention is that it cannot be rerule was uniformly maintained that the garded as a law of the United States if the courts would look to the statute roll, and journal of either House fails to show that to that alone."
it passed in the precise form in which it The issue is also well considered in State was signed by the presiding officers of the ex rel. George v. Swift, 10 Nev. 176, 21 Am. two Houses, and approved by the President. Rep. 721: Green v. Weller, 32 Miss. 650; | It is said that, under any other view, it Carr v. Coke, 116 X. C. 223, 28 L.R.A. 737, becomes possible for the Speaker of the 47 Am. St. Rep. 801, 22 S. E. 16; People v. House of Representatives and the President Devlin, 33 N. Y. 269, 88 Am. Dec. 377; and of the Senate to impose upon the people as many other cases.
a law a bill that was never passed by ConThe authorities bearing on all phases of gress. But this possibility is too remote to . the inquiry will be found collected in the be seriously considered in the present inopinion and note to Atchison, T. & S. F. R. quiry. It suggests a deliberate conspiracy Co. v. State, 40 L.R.A.(N.S.) 1.
to which the presiding officers, the commitThe Supreme Court of the United States tees on enrolled bills, and the clerks of the held an enrolled act duly authenticated and two Houses must necessarily be parties, all on file with the secretary of the state con acting with a common purpose to defeat an clusive proof of the law as passed by Con-expression of the popular will in the mode gress, in Marshall Field & Co. v. Clark, 143 prescribed by the Constitution. Judicial U. S. 649, 36 L, ed. 294, 12 Sup. Ct. Rep. action based upon such a suggestion is for. 495, where, speaking through Harlan, J., it bidden by the respect due to a co-ordinate said:
“The signing by the Speaker of the branch of the government. The evils that House of Representatives, and by the Presi- inay result from the recognition of the dent of the Senate, in open session, of an principle that an enrolled act, in the custody enrolled bill, is an official attestation hy of the Secretary of State, attested by the the two Houses of such bill as one that has signatures of the presiding officers of the passed Congress. It is a declaration by two Houses of Congress,
according the two Houses, through their presiding ofti- to the forms of the Constitution, would be cers, to the President, that a bill thus at. | far less than those that would certainly retested has received, in due form, the sanc- sult from a rule making the validity of tion of the legislative branch of the govern-congressional enactments depend upon the ment, and that it is delivered to him in manner in which the journals of the respecobedience to the constitutional requirement tive Houses are kept by the subordinate effithat all bills which pass Congress shall cers charged with the duty of keeping be presented to him. And when a bill thus them.” attested receives his approval, and is de- There the court held it not competent to posited in the public archives, its authenti- show from the journals of the House and eation as a bill that has passed Congress other evidence that the enrolled bill as should be deemed complete and unimpeach- passed contained a section not found in able. As the President has no authority to the enrolled act in the office of the Secreapprove a bill not passed by Congress, antary of State. enrolled act in the custody of the Secretary Enough has been said and quoted to clear
ly indicate the grounds of our conclusion, been promulgated as therein prescribed, and that the enrolled bill on file with the secre- only then, does it become a law of the state. tary of state is the ultimate proof of its This does not relieve either house of the passage in the form there appearing, and i obligation under $ 17 of article 3 of the that beyond this the courts cannot go in as- Constitution, from seeing to it that the yeas certaining whether the legislature complied and nays on the final passage of every bill with the requirements of the Constitution. are entered on its journal. This is to be The authorities seem about evenly divided actually complied with, and only when so as to whether resort may be had to the done, and it appears that a "majority of journals of the houses, but there is de all members elected to each branch of the cided tendency in recent decisions to hold general assembly" have assented thereto, is that the enrolled bill is conclusive evidence the bill to be "signed by the speaker and of its passage as it appears. In the last president of their respective houses.” Secedition of Sutherland on Statutory Con- tion 15 of article 3. Thereby the presiding struction, at page 72, the author observes | officer of each house certifies to the passage that "it is no longer true that ‘in a large of the bill in conformity with the requiremajority of the states the courts have held ment of the Constitution and the rules of that the enrolled act may be impeached by the respective houses, and such certification a resort to the journals. A comparison will may not be impeached by the very fallible show that the courts are now about equally record of some clerk ordinarily made up divided on the question. The current of from hastily prepared memoranda, for the judicial decision in the last ten years has preservation of which the law makes no been strongly against the right of the provision, or other evidence of like charcourts to go back of the enrolled act. Un- acter. The respective houses having certidoubtedly, the decision of the Supreme fied to the passage of a particular bill in Court of the United States in Marshall the manner prescribed by the fundamental Field & Co. v. Clark, supra, has had much law, it is not competent for the courts to to do in creating and augmenting this cur- inquire whether the general assembly—a rent; but it may also be due to the greater co-ordinate branch of government-has obsimplicity, certainty, and reasonableness of served the requirements of the Constitution the doctrine which holds the enrolled act devolving upon it, and inquire whether its to be conclusive. Many courts and judges, certification is true. Such a course would while feeling compelled to follow former de be inconsistent with the independent charcisions holding that the enrolled act may acter of the legislative department, which be impeached by the journals, have done so necessarily must pass on the manner of per- reluctantly, and have expressed doubts as forming its duties, though, as previously obto the validity of the doctrine, and in many served, the extent of its powers as defined cases, as will appear in the following sec- by the Constitution is appropriate matter tions, have qualified and restricted it in im- for judicial inquiry. A bill may be preportant particulars.”
sented to the governor for approval only Dissatisfaction with the contrary rule has after it has passed both houses, and the been expressed in the following cases: only authentication of the bill in form or Webster v. Little Rock, 44 Ark. 536; People substance as being that which has been ex rel. Barnes v. Starne, 35 Ill. 121, 85 Am. passed is the signature of each presiding Dec. 348; State ex rel. Godard v. Andrews, officer, and only when so signed and ap64 Kan. 474, 67 Pac. 870; State ex rel. Cas- proved, or approval omitted for three days, per v. Moore, 37 Neb. 13, 55 N. W, 299. is it deemed a verity, and the courts will
In State ex rel. Hoover v. Chester, 39 not get behind the enrolled bill to ascertain S. C. 307, 17 S. E. 752, previous decisions whether the legislature complied with the were overruled.
The entire field on both requirements of the Constitution in its sides has been covered in the decisions of adoption. In other words, the certification other states, and we have sought only to through the presiding officers by the genindicate the reasons which have been per- eral assembly is deemed conclusive evidence suasive to us in reaching the conclusion that the bill was passed as exacted by the that the enrolled bill duly authenticated as Constitution. exacted by the provisions of the Constitu- What has been said, perhaps, indicates tion is conclusive, not only that it passed with suficient definiteness our conclusion the general assembly, but that it did in that the signature of the speaker was essenthe form of the enrolled bill. In other tial to the validity of the enrolled bill. words, the several sections of the Constitu- Courts holding that resort may not be had tion are mandatory, and when an act has to other than the enrolled bills to ascertain their enactment by the general assembly | governed, and to form a standard by which are unanimous in deciding that the signa- is to be measured the power which can be ture of the presiding officer of each house is exercised as well by the delegate as by the essential as proof of their passage, and that sovereign people themselves. If directions the omission of either is fatal to the bill. are given respecting the times or modes of 26 Am. & Eng. Enc. Law, 2d ed. 545. More proceeding in which a power should be exerover, the greater number of those deciding cised, there is at least a strong presumption that the journals of the respective houses that the people designed it should be exeror other evidence may be resorted to for cised in that time and mode only; and we the purpose of ascertaining whether consti- | impute to the people a want of due appretutional requirements as to the manner of ciation of the purpose and proper province passing a bill have been observed entertain of such an instrument when we infer that the same view, and declare the omission of such directions are given to any other end; the signature of either presiding officer especially when, as has been already said, from the enrolled bill fatal. State ex rel. it is but fair to presume that the people in Atty. Gen, v. Platt, 2 S. C. 150, 16 Am. Rep. their Constitution have expressed them647; Moody v. State, 48 Ala. 115, 17 Am. selves in careful and measured terms, corRep. 28. See 26 Am. & Eng. Enc. Law, 2d responding with the immense importance of ed. 543; Lynch v. Hutchinson, 219 Ill. 193, the powers delegated, and with a view to 76 N. E. 370, 4 Ann. Cas. 905; State ex rel. leaving as little as possible to implication." Coffin v. Howell, 26 Nev. 93, 64 Pac. 466 ; This is expressive of the view entertained State ex rel. Scarborough v. Robinson, 81 by the great weight of authority, and there N. C. 409; Jones v. Hutchinson, 43 Ala. appears no sound reason for not holding, in 721; Legg v. Annapolis, 42 Md. 203; State accord therewith, that the section of the v. Kiesewetter, 45 Ohio St. 263, 12 N. E. Constitution under consideration (§ 15 of 807.
article 3), in exacting the signature of the Manifestly this is because of the very speaker of the house as well as that of the tenable theory that all provisions of the president of the senate, is essential to the Constitution, unless the contrary appears authentication of the bill in form and subtherefrom, are to be regarded as mandatory. stance, as well as, in certifying its passage, It is hard to understand arguments con- to its validity as a statute of this state. struing any portion of the fundamental law all are presumed to know the law, and it as discretionary, for, if so, there could be is of highest importance to each citizen, as no adequate reason for including it therein. well as to the public officer, that there be As observed by Judge Cooley in his work on an authentic record to which he may resort Constitutional Limitations (page 94): "The to ascertain certainly and definitely what courts tread upon very dangerous ground laws are enacted by the legislature which when they venture to apply the rules which control him, and which he is bound to obdistinguish directory and mandatory stat- serve at his peril. Whatever conduces to utes to the provisions of a Constitution. certainty in this respect is of great moment Constitutions do not usually undertake to to every person in the state, and no rule of prescribe mere rules of proceeding, except construction would be wise which would when such rules are looked upon as essen- leave so important a matter to doubt or tial to the thing to be done; and they must uncertainty. Our conclusion that the enthen be regarded in the light of limitations rolled bill must be signed by both the speak. upon the power to be exercised. It is the er of the house and the president of the province of an instrument of this solemn senate, and that when so signed and apand permanent character to establish those proved by the governor, or approval omitfundamental maxims, and fix those unvary-ted, under circumstances defined in § 16 of ing rules, by which all departments of the article 3 of the Constitution, is conclusive government must at all times shape their that it has been properly enacted, and has conduct; and, if it descends to prescribing become a valid statute of the state, accommere rules of order in unessential matters, plishes this, and we need only add that, in it is lowering the proper dignity of such consequence thereof, chapter 214 of the an instrument, and usurping the proper Acts of the 33d General Assembly, not havprovince of ordinary legislation. We are ing been signed by the speaker, is not and not therefore to expect to find in a Consti- never was a part of the laws of this state. tution provisions which the people, in Affirmed. adopting it, have not regarded as of high importance, and worthy to be embraced in Deemer, Ch. J., and Evans, Gaynor, an instrument which, for a time at least, Preston, and Salinger, JJ., is to control alike the government and the' Weaver, J., takes no part.
KANSAS SUPREME COURT. beneficiary named, although she may have
years thereafter secured a divorce from her MRS. CLARENCE E. FILLEY, Appt.,
husband, and he was thereafter again married to one who sustained the relation of
wife to him at the time of his death. ILLINOIS LIFE INSURANCE COMPANY, et al.
On Rehearing. (91 Kan. 220, 137 Pac. 793.)
Same vesting of rights.
2. The rights of a beneficiary in an ordiInsurance for wife effect of di- nary life insurance policy become vested
upon the issuance of the policy, and can 1. The benefit accruing from a policy of thereafter, during the life of the benficiary, life insurance upon the life of a married be defeated only as provided by the terms man, payable upon his death to his wife, of the policy. naming her, is payable to the surviving Same Kansas Mutual Company.
3. The Kansas Mutual Life Association Headnotes by SMITH, J.
was not strictly a mutual association nor a Note. - Espect of divorce on rights of by the obtaining by her of a divorce from
beneficiary under insurance policy or the insured, it being said that the phrase, benefit certificate.
“the wife of the insured,” was purely de
scriptive, and did not import an implied The earlier cases upon this question are condition that to receive the proceeds of treated in the notes to Wallace v. Mutual the policy she should continue to be his Ben. L. Ins. Co. 3 L.R.A.(N.S.) 478, and wife up to the time of his death. Green v. Green, 39 L.R.A.(N.S.) 370, where- In the recent Kentucky case of Sea v. in the general rules are fully stated. Conrad, 155 Ky. 51, 47 L.R.A.(N.S.) 1074,
Perhaps the most important of the recent 159 S. W. 622, it was held that a paid-up decisions is FILLEY V. ILLINOIS L. Ins. Co., “old line” life insurance policy, taken by wherein it was held that the question as a man for the benefit of his wife, was withto whether a policy of life insurance or a in a statute providing that upon divorce benefit policy issued to one for the benefit | the court shall restore any property which of another vests a present interest in the i either party may have obtained directly or beneficiary depends not upon the name or indirectly from or through the other during nature of the company, but on the terms of marriage, and in consideration or by reason the policy, the existing statutes, and the thereof, and therefore that a wife who was hy-laws, if any, by which such company and named as beneficiary in such an old line its policy holders are bound; and apply life insurance policy which became paid up ing this rule, that a policy issued to a mem- before the parties were divorced was by ber of a mutual benefit society, which policy such divorce devested of all beneficial inprovided that the benefits should be paid to terest therein, although the policy was left such person's wife, naming her, was payable in the possession of the wife, the husband to the named person, although some years having collected the dividends upon it, thereafter she secured a divorce, and the And the meaning of the term “dependent insured was thereafter again married to upon” as used in the by-laws of a fraternal one who sustained the relation of wife to benefit association and a statute governing him for several years and until his death, such associations, limiting beneficiaries and it being shown that after such remarriage payment of death benefits to those dependthe insured kept the annual dues and de- ent upon the insured, was determined in mands paid, and made no attempt to change Johnson v. Grand Lodge, A. 0. U. W. 91 the beneficiary.
Kan. 314, 50 L.R.A. (N.S.) 461, 137 Pac. The general rule that a wife's interest 1190, wherein it was held that a as beneficiary in an ordinary or old line who has obtained a divorce from her former life insurance policy is not affected by a husband and a judgment for alimony is not divorce where under the policy the hus- entitled to be regarded as a dependent upon hand had the right to change the bene- him so that after his death she may colficiary, but did not do so, was held in the lect an insurance policy issued by such an case of Guthrie v. Guthrie, 155 Ky. 146, association while she was still his wife, and 159 S. W. 710, to be applicable to an in- naming her as beneficiary, although the surance policy, the parties named in which judgment for alimony is still uncollected, were divorced in Illinois, the decree in the upon the mere showing that such judgment divorce suit having made no award with is uncollected, without showing that there reference to it, and it not appearing that is no way in which the judgment can be there was any statute in Illinois providing satisfied. for the restoration upon divorce of property Snyder v. Supreme Ruler, F. M. C. 122 obtained through marriage.
Tenn. 248, 45 L.R.A. (N.S.) 209, 122 S. W. And in Salvin v. Salvin, 165 App. Div. 98], which is cited in the note in 39 L.R.A. 362, 151 N. Y. Supp. 60, it was held that (N.S.) 370, was affirmed on another point the interest of a beneficiary in an ordinary in 227 U. S. 497, 57 L. ed. 611, 33 Sup. Ct. life insurance policy payable to “B., the Rep. 292.
G. J. C. wife of the insured," was not terminated
fraternal benefit association, but was prac-, tained a divorce absolute, and thereby tically an old line life insurance company, claiming no right, title, or interest in said although it collected money to meet its death benefit, ceased to be the wife of obligation by so-called annual dues instead Clarence E. Filley, and ceased to sustain of by premiums.
any relationship to him, as fully as if he On Petition for Second Rehearing.
had never existed, and would not have an
insurable interest, nor any interest, in his Same vesting of interest what de- life by virtue of insurance upon his life,
except to kill him to obtain the benefit aca benefit policy issued to one for the benefit cruing thereby. of another vests a present interest in the
Heyman v. Meyerhoff, 16 W. N. C. 212; beneficiary depends, not upon the name or Miltimore v. Miltimore, 40 Pa. 151; Flory nature of the company, but on the terms v. Becker, 2 Pa. St. 470, 45 Am. Dec. 610; of the policy, the existing statutes, and the Charlton v. Miller, 27 Ohio St. 298, 22 Am. by-laws, if any, by which such company and Rep. 307; Bishop, Marr. & Div. § 697a; Bell its policy holders are bound; and when such policy is issued to a member for the bene- Atl. 70; Barrett v. Failing, 111 U. S. 523,
v. Smalley, 45 X. J. Eq. 478 and note, 18 fit of a proper beneficiary, then, in the absence of some statute, by-law, or contract 28 L. ed. 505, 4 Sup. Ct. Rep. 598; 2 Nelto the contrary, the beneficiary thereby be- son, Div. & Sep. 1024; Fletcher v. Monroe, comes vested with an interest which can
145 Ind. 56, 43 N. E. 1053; Stewart, Marr. not be destroyed at the will of the insured. & Div. § 430; Missouri Valley L. Ins. Co. Same divorce continuing policy.
v. Sturges, 18 kan. 93, 26 Am. Rep. 761; 5. Such a policy issued to a member of State v. Winner, 17 Kan. 298; May, Insura mutual company, providing that the death ance, $ 398; Hatch v. Hatch, 35 Tex. Civ. benefit should be paid to such member's App. 373, 80 S. W. 411; 3 Am. & Eng. Enc. wife, naming her, entitled her to such bene- Law, 2d ed. 943. fit, although some years before the death of the insured she was divorced from him; line policy, but a beneficial assessment pol
The policy is not an ordinary life or old it being shown that after such divorce and after his remarriage the insured kept the icy, annual dues and demands paid and made no
Johnson v. Grand Lodge, A. 0. U. W., attempt to change the beneficiary.
91 Kan. 314, 50 L.R.A.(N.S.) 461, 137 Pac. Same provision for surrender of pol. 1190; 3 Am. & Eng. Enc. Law, 1043, 1045, icy.
1046. 6. A provision in the policy, that, should The interest of the beneficiary did not vest the insured reach the age of sixty-four and at the issuance of the policy, but was conso desire, he could surrender such policy ditional. and receive back his payments with inter
40 Cyc. 197, 198; Re Edmondson, L. R. 5 est, is held to be a condition subsequent not impairing the vested interest of the Eq. 389, 16 Week. Rep. 899; Talmadge v. beneficiary, unless and until the insured Seaman, 85 Hun, 242, 32 N. Y. Supp. 906; should reach the designated age and then Smith v. Proskey, 39 Misc. 385, 79 N. Y. choose to surrender.
Supp. 851; Stewart v. Harriman, 56 N. H.
25, 22 Am. Rep. 408; Smaw v. Young, 109 (January 10, 1914.)
Ala. 528, 20 So. 370; Hawkins v. Bohling,
168 Ill. 214, 48 N. E. 94; Temple v. Scott, A PPEAL by plaintiff from a judgment of 143 111. 290, 32 N. E. 306; Lewis v. Howe,
the District Court for Shawnee County | 174 N. Y. 340, 66 N. E. 975, 1101; 25 Cyc. in favor of defendant Fannie E. Filley, and
891. from an order denying a motion for new
The beneficiary must have an insurable trial, in an action brought to recover an
interest, regardless of what the rules and amount alleged to be due on a benefit cer- regulations of the companies may be. tificate. Afirmed.
25 Cye. 889; Hatch y. Hatch, 35 Tex. Civ. The facts are stated in the opinion.
App. 373, 80 S. W. 411; Goldsmith v. Union Messrs. Eugene S. Quinton, Joseph G. | Mut. L. Ins. Co. 18 Abb. N. C. 325; Order Waters, and John Calhoun Waters, for of R. Conductors v. Koster, 55 Mo. App. appeliant:
186; Tyler v. Odd Fellows' Mut. Relief AsThat the death benefit was payable to so. 145 Mass. 134, 13 N. E. 360; Riley v. the status, wife of Clarence E. Filley, at Riley, 75 Wis. 464, 44 N. W. 112. the time of his death, is conclusively sup- Messrs. J. H, Stavely, A. K. Stavely, ported by the certificate.
and Thomas M. Lillard, for appellee: People v. Hovey, 5 Barb. 118; Tyler v. The policy is an ordinary life policy of Odd Fellows' Mut. Relief Asso. 145 Mass. the old line type. 134, 13 N. E. 360; Riley v. Riley, 75 Wis. Masonic Mut. Ben, Soc. v. Burkhart, 110 464, 44 N. W. 112.
Ind. 192, 10 N. E. 79, 11 N. E. 449; Boice Fannie E. Filley, having sought and ob- V. Shepard, 78 Kan. 308, 96 Pac. 485;