In my opinion, chapter 33, Session Laws 1929 (section 10453, O. S. 1931), is unconstitutional. It is true that the transaction of business in the manner authorized by said chapter is not expressly prohibited by any provision of the Constitution. But when the constitutionality of a legislative act is challenged, which act is violative of the spirit and purpose of constitutional provisions, we must look beyond the mere letter of the law. The framers of the Constitution outlined and established certain definite policies regarding the various subjects treated in the Constitution. When such a policy is plain, clear, and easily determined, it is as binding on this court as a positive pronouncement of law and must be given effect. One of the subjects treated by the framers of the Constitution was that of insurance. There is no doubt that the necessity for the regulation of the insurance business was as apparent when the Constitution was framed as it is now. It was contemplated that comprehensive laws would be passed providing for such regulation, to the end that citizens of this state might be assured that contracts of insurance would be faithfully performed.
The pertinent provisions of article 6 of the Constitution are as follows:
"Section 22. There is hereby established an Insurance Department, which shall be charged with the execution of all laws now in force, or which shall hereafter be passed, in relation to insurance and insurance companies doing business in the state.
"Section 23. There shall be elected by the qualified electors of the state, at the first general election, a chief officer of said department, who shall be styled, 'The Insurance Commissioner,' whose term of office shall be four years: Provided, that the first term of the Insurance Commissioner, so elected, shall expire at the time of the expiration of the term of office of the first Governor elected. Said Insurance Commissioner shall he at least twenty-five years of age and well versed in insurance matters.
"Section 24. The Insurance Commissioner shall give bond, perform such duties and possess such further qualifications as may be prescribed by law."
Section 3, article 19, of the Constitution is as follows:
"Section 3. The revenue and tax provisions of this Constitution shall not include, but the state shall provide for, the following classes of insurance organizations not conducted for profit, and insuring only their own members:
"First, farm companies insuring farm property and products thereon; second, trades insurance companies insuring the property and interest of one line of business; third, fraternal life, health, and accident insurance in fraternal and civic orders, and in all of which the interests of the members of each respectively shall be uniform and mutual."
From time to time various regulatory statutes were enacted which are too numerous and comprehensive to be outlined here. All of the various regulatory provisions were intended to accomplish a general purpose, that is, to prevent the solicitation of insurance business in this state by any person, firm, or association who had not first made certain provisions which guaranteed the full performance of contracts when the time came to perform.
It was no doubt contemplated that private citizens would be at great disadvantage in investigating the financial responsibility of the various concerns offering insurance contracts in this state. It was therefore made the office and duty of the state to relieve its citizens of such responsibility and to make such provisions that a certificate of authority and permission to do business in the state would be a certification that the various concerns holding such certificates of authority had complied with the various provisions of law and had been declared financially responsible. The citizens have a right to rely upon such certificate of authority.
A contract practically identical in form with the contract with which we are dealing *Page 473 herein was involved in the case of Oklahoma Southwestern Burial Association v. State ex rel. Read, 135 Okla. 151, 274 P. 642. In that case an injunction was granted permanently enjoining a burial association from conducting its business for failure to comply with the insurance laws. The cause was defended on the ground that said association was not engaged in the insurance business. The court therein analyzed and discussed the authorities from the various states and held that said association was engaged in the insurance business and as such should comply with the insurance laws of this state. At the time the petition for rehearing in that case was overruled the Legislature was in session and promptly enacted chapter 33, Session Laws 1929.
It is noted that no provison was made in the act for a change in the form of contract; the contract is therefore still a contract of insurance.
The ultimate effect of the act was to create a new classification of insurance business. The Legislature provided in the act that an association doing such class of insurance business "shall be exempt from the operation of and the effect of the insurance laws of the state of Oklahoma, and shall not be required to comply with the insurance laws of said state." The exact question before the court is whether or not such legislation is in harmony with the Constitution.
In the case of Board of Commissioners of Logan County v. State, 122 Okla. 268, 254 P. 710, it is said:
"The affirmation of a distinct policy upon any specific point in a state Constitution implies the negation of any power in the Legislature to establish a different policy."
In the case of Amos v. Mathews, 99 Fla. 1, 126 So. 308, it is said:
" 'The true spirit of constitutional interpretation * * * is to give full, liberal construction to the language, aiming ever to show fidelity to the spirit and purpose. * * * Constitutional provisions, whether operating by way of grant or limitation, are to be enforced according to their letter and spirit, and cannot be evaded by any legislation which, though not in terms trespassing on the letter, yet in substance and effect destroy the grant or limitation.' Fairbank v. U.S.,181 U.S. 283. 21 S.Ct. 648, 651, 45 L.Ed. 862.
"This court has held that 'the courts should not declare a statute to be void or inoperative on the ground that it is opposed to a spirit that is supposed to pervade the Constitution.' State v. Johns, 92 Fla. 187, 109 So. 228; Cooley's Const. Lim. (7th Ed.) p. 239. But it does not necessarily follow that in every case the courts must be able to point out some express inhibition which has been disregarded, or some express command which has been disobeyed, before the courts can set aside a statute as invalid. 'The intent of organic or statutory provisions is the essence of the law * * * and such intent may be shown by the implications and intendments as well as by words of express provisions, and implied provisions of organic or statutory law are as effective as the express provisions, when such implied provisions are judicially declared to exist.' Getzen v. Sumter County, 89 Fla. 45,103 So. 104, 107. And in Re Advisory Opinion to Governor,94 Fla. 967, 114 So. 850, this court said that 'the spirit as well as the letter' of constitutional inhibitions 'should be preserved and given full force and effect.' Constitutional restraints, therefore, may be found either in the express language employed or in the purpose clearly, though impliedly, evidenced thereby. The object of constitutional construction is to ascertain and effectuate the intention and purpose of the people in adopting it. That intention and purpose is the 'spirit' of the Constitution — as obligatory as its written word. That spirit, however, cannot consist of mere sophistry nor of fanciful or conjectural theory. It must be found in those implications and intendments which clearly flow from the express mandates of the Constitution when considered in the light of circumstances and historical events leading up to its adoption, from all of which the purpose of the people in adopting it is to be gleaned. State v. Butler, 70 Fla. 102, 69 So. 771; Mugge v. Warnell, etc., Co., 58 Fla. 318, 50 So. 645; Brown v. Lakeland, 61 Fla. 508, 54 So. 716; State v. Greer,88 Fla. 249, 102 So. 739; 37 A. L. R. 1298; Getzen v. Sumter County, 89 Fla. 45, 103 So. 104; Rathbone v. Wirth, 150 N.Y. 459,45 N.E. 15, 34 L. R. A. 408; Holland v. State, 15 Fla. 455, 523; People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; Cooley, Const Lim (7th Ed.) p. 98, 242."
As I conceive it, there is a definite and well-established policy announced by the framers of the Constitution in section 22, article 6, which establishes an Insurance Department "which shall be charged with the execution of all laws now in force or which shall hereafter be passed in relation to insurance and insurance companies doing business in the state." I cannot escape the conclusion that the framers of the Constitution intended that all insurance companies doing business in this state should be on a parity so far as the law is concerned. If we uphold the validity of this above act of the Legislature and sanction the authority of the Legislature to classify the various *Page 474 kinds of insurance business and to provide that certain classes are subject to the regulatory provisions of the law which are wholesome, salutary, and necessary, and exempt certain other classes from regulation, in my opinion we have broken down the structure of the law relating to regulation of the insurance business and have reached a result which is directly contrary to that contemplated by the framers of the Constitution when it was provided for the establishment of an Insurance Department and that said department was charged with the execution ofall laws relating to insurance and insurance companies doing business in this state.
It is argued on behalf of defendant that the legislative act is in harmony with the constitutional provisions in that the Insurance Commissioner is still vested with full authority to execute the law as declared by the legislative act, but this argument does not give consideration to that provision which specifically exempts associations from compliance with the insurance laws of the state. The plain and obvious purpose of the act was to deprive the Insurance Commissioner of jurisdiction over such companies, since his authority relates to the enforcement of such insurance laws. They are therefore left free to transact business without supervision, inspection, or regulation. True, a bond is required equal to the amount of trust funds on hand, but no provision is made for the audit of such companies or for any other means of ascertaining whether or not they are complying with such requirement.
The Constitution makers contemplated uniform regulation of all companies engaged in the insurance business in this state. The purpose and the necessity for such regulation have been heretofore suggested. It was further provided by the Constitution that the responsibility for such regulation be fixed upon the Insurance Commissioner. The legislative act involved herein creates a new classification of insurance business and very definitely provides for the transaction of such business without regulation. I cannot harmonize the provisions of this act with the spirit, purpose, and intent of the framers of the Constitution.
The approval of this legislative act in my opinion creates a dangerous precedent to which cannot give my personal sanction and approval. I therefore respectfully dissent.
I am authorized to say that Mr. Justice GIBSON concurs in this dissenting view.