Appellant was convicted of violating the insurance law; punishment fixed at a fine of one hundred and fifty dollars.
The prosecution is apparently based upon Section 49, Chap. 108, Acts of the Thirty-First Legislature, which forbids one to act as the agent or solicitor of a life insurance company without a certificate of authority to act as such agent.
It is charged that appellant solicited Sam Kruger to take an insurance policy in the "Protective Life Insurance Company" and did receive directly or indirectly compensation therefor, and had at the time no certificate of authority to act as agent for said company.
Section 47 of the Act in question contains the following:
"Every such foreign company shall, by resolution of its board of directors, designate some officer or agent who is empowered to appoint or employ its agents or solicitors in this State and such officer or agent shall promptly notify the Commissioner in writing of the name, title and address of each person so appointed or employed. Upon receipt of this notice, if such person is of good reputation and character, the Commissioner shall issue to him a certificate which shall include a copy of the certificate of authority authorizing the company requesting it to do business in this State and the name and title of the person to whom the certificate is issued."
There is evidence that appellant had been appointed agent for the Protective Life Insurance Company but that no certificate from the Commissioner of Insurance and Banking of this State ratifying his appointment had been issued. The conviction is founded upon the theory that appellant had violated the law in soliciting insurance without previously receiving a certificate from the Commissioner of Insurance and Banking showing his consent to appellant's appointment as *Page 323 agent. Unless we misconceive the law upon which the prosecution is based, it requires that such certificate be issued in cases only in which the agency is that of a "foreign" insurance company. Section 47, which we have quoted above, refers in terms to a "foreign company" and we have found nothing in that section nor in any other section of the act which requires that the certificate mentioned be issued where the agency is that of a domestic insurance company. The statute, Section 1, very clearly draws the distinction between foreign and domestic companies. It says that the term "foreign company" means any life, accident or health insurance company organized under the laws of any other State or Territory of the United States or foreign country; that the term "home" or domestic company, as used herein designates those life, accident, or life and accident, health and accident, or life, health and accident insurance companies incorporated and formed in this State. Throughout the act are found provisions which related to the home or domestic insurance companies which do not relate to foreign insurance companies, and vice versa. Section 47, supra, seems to be one of these.
In writing the information, the pleader takes no note of this distinction, but describes the company thus: "Protective Life Insurance Company," and there is found in the information no other designation or intimation that it is a foreign insurance company. This being true, no offense is charged, because under the act in question, it is not made an offense to solicit insurance without a certificate from the Commissioner or Insurance and Banking unless the solicitation be upon behalf of a foreign insurance company.
For these reasons the judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.
ON REHEARING.