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half of a corporation, association, or partner- | ship not incorporated by the laws of this state," etc.; and section 1206, supra, would read: "Any person acting as agent of any foreign corporation, association, or partnership which has," etc. By holding that section 1207 is amendatory of the other sections referred to in the manner declared, sections 1205 and 1206 are separable in their provisions, and, so far as they are made to apply to and are enforced against "foreign corporations," they do not contravene any provision of the state constitution or the constitution of the United States. Paul v. Virginia, supra; Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 763; Railroad Co. v. Morris, 65 Ala. 193; McCreary v. State, 73 Ala. 480; Powell v. State, 69 Ala. 10; Vines v. State, 67 Ala. 73. The construction of the statute is one of difficulty, and the one given to it is not altogether satisfactory; but we are of opinion the language used in section 1207, considered in connection with other sections to which it refers, admits of the interpretation given to it, and when the statute is attacked upon constitutional grounds it is our duty to avoid such a construction, if it can be done consistently, as will defeat the entire legislation of the state upon questions embraced in these statutes relating to insurance companies.

We are of opinion that plaintiff was not required, in order to maintain his action under section 1206, supra, to comply with the provision of the policy, in the matter of making proof of the loss and forwarding the same to the insurance company within 60 days, or the other provision that no suit should be begun within 90 days, and like provisions contained in the policy, which the policy required to be complied with before the institution of a suit against the company itself. The right of action is given against the agent who acts as such for a foreign insurance company which has not received a license from the auditor. It is the acting as agent for such a company that constitutes the "offense" which is the foundation of the suit. The recovery is limited to the loss sustained covered by the policy. The amount which may be recovered does not affect the right of action. It is the "offense" which forfeits to the state $500, and not the failure to observe the stipulations contained in the policy of insurance. We think there was some evidence tending to show the Fairmount Association of Philadelphia was a foreign corporation. It is fully proven that the policy was procured through brokers living in Chicago, and that it was sent to plaintiff by mail. The policy itself bears on its face evidence tending to show it was chartered under the laws of Pennsylvania. Its heading is, "The Fairmount Insurance Association of Philadelphia, Pa." The proofs of loss were to be "received at the office of the association in Philadelphia, state of Penn." Other provisions were sub

ject to the orders of the "directors, pursuant to its charter and by-laws, and the laws of the state of Pennsylvania." It was "signed by its president and attested by its secretary at the city of Philadelphia, Penn."

It is further contended by the defendant that there is no evidence to show they acted as agents for the Fairmount Insurance Association. We do not think this contention maintainable. Stated broadly and favorably for the defendants, the facts are that the defendants themselves had no correspondence whatever with the insurance company, had no information that the Fairmount Association Insurance Company had issued to plaintiff a policy, and did not in fact know there was such an insurance company in existence. We give the defendant the benefit of this extreme statement of the facts. On the other hand, the plaintiff received and held through some agency an insurance contract in this insurance company. He had no correspondence with the insurance company, and had no transaction with any other person, directly or indirectly, than the defendants in the procurement of the policy. The defendants solicited from the plaintiff an order to place an insurance risk, and the plaintiff authorized them to place a risk for $1,000 in some good company on his stock of goods. Not being able to place the risk in Montgomery, the defendants requested an insurance broker in Chicago generally to place the risk. This broker had the policy in question executed and forwarded to the plaintiff. The plaintiff had no notice or information of the correspondence between the defendants and the Chicago broker, or of that of the Chicago broker with the insurance company. The plaintiff sent his check, payable to the defendants, to pay the premium on a policy. The policy bears date of September 25, 1890, and the check for the premium bears date October 13, 1890. This check was cashed to the defendants upon presentation to the drawee, and, as they testify, the proceeds were remitted by them to the broker in Chicago. The first policy obtained was canceled before the application was made to the Fairmount Association Insurance Company, and necessarily before the latter policy was received by plaintiff. When defendants received and retained plaintiff's check for the premium, they knew, necessarily, that the money received by them could not be applied to the canceled policy, and when they remitted the premium to Chicago, they knew it was not for a policy already canceled by them. Certainly, the facts of the defendants, if believed by the jury, are sufficient to constitute them agents within the sweeping provisions of section 1205 of the Code, supra. The acts of the legislature of 1879 (page 26) and of 1884, (sections 16, 17, pp. 19, 20,) codified as section 1205, supra, fixed a penalty, and by the latter act, in addition to the penalty, a

personal liability upon any person who did any of the acts therein specified for such an insurance company, and we do not doubt that it was the intention of the legislature to subject such a person or agent to the liabilities provided in section 1206, under which the present action was brought. The construction given to the statute by the court, in its instructions to the jury, accords with these conclusions. The charges requested by the defendants were properly refused. The propositions of law contained in them either asserted a contrary doctrine, or were abstract, or argumentative and misleading.

The bill of exceptions states that, in the concluding argument of plaintiff's counsel to the jury, he stated "that the evidence showed that defendants had taken $32.50 from plaintiff and insured him in an insolvent company." The defendants objected to this statement of counsel, and moved the court to exclude it from the jury. This question is presented in a somewhat different form from that heretofore considered. It will be seen that the statement is "that the evidence showed," etc. This was not the assertion of a fact as being within the knowledge of counsel, outside of and without reference to the evidence. Where counsel honestly differ as to the facts in evidence, or are honestly mistaken as to correct inference from proven facts, there is not that transgression of the limits of legitimate argument which will cause a reversal of the case. While we think the statement was not warranted by the evidence, and its tendency may have been to prejudice the defendants before the jury, the fact itself, whether true or false, could have no material bearing on the issue. The real issues were whether the company was a foreign corporation doing an insurance business without a license, and whether the defendants acted as agents within the provisions of the statute. The solvency or insolvency of the corporation could exert no influence on these issues, and the verdict should have been the same in either event. Cross v. State, 68 Ala. 476; Railroad Co. v. Orr, 91 Ala. 548, 8 South. 360. Affirmed.

playing, and, stating the time and the venue, said this was all he knew about it. Held, that the testimony did not sustain the verdict. (Syllabus by the Court.)

Error to circuit court, Suwannee county; John F. White, Judge.

John Tatum and Dock Church were convicted of unlawfully playing at cards, and bring error. Reversed.

Blackwell & Rees, for plaintiffs in error. William B. Lamar, Atty. Gen., for the State.

RANEY, C. J. The indictment charges that John Tatum and Dock Church, on April 1, 1893, in Suwannee county, in this state, unlawfully did then and there play and engage in a game at cards together, and did then and there play and engage in a game at cards with each other, for money, which said game at cards was then and there a game of chance, contrary to the statute in such cases made and provided.

The only evidence introduced on the trial was the testimony of one Josh Wright, who testified as follows: "I know the defendants, John Tatum and Dock Church. They are in court. [Points them out.] I saw the defendant Dock Church and other persons sitting around in a circle on the ground playing cards. I saw some money on the ground where they were playing. Dock Church was dealing the cards. John Tatum was standing by. I did not see Tatum playing cards. I saw him throw a dime down where they were playing cards, and some one picked it up. I do not know whether they were betting or not. I only saw the money on the ground, and saw Dock Church dealing the cards. I saw no one else but Dock Church have any cards in his hands. I do not know the name of the game they were playing, This was on the 1st day of April, 1893, in Suwannee county, state of Florida. This was near Brevaldo's mill. This is all I know about it."

The testimony is not sufficient to sustain the verdict, (Oder v. State, 26 Fla. 520, 7 South. 856,) and the judgment must be reversed, and a new trial granted. It will be so ordered.

TATUM et al. v. STATE. (Supreme Court of Florida. Feb. 13, 1894.) GAMING-SUFFICIENCY OF EVIDENCE. T. and C. were indicted for engaging in a game of cards together, or with each other, for money, and tried jointly and convicted. The sole witness testified that he saw C. and other persons, not naming them, sitting around in a circle on the ground playing cards, and saw money on the ground where they were playing; that C. was dealing the cards, and T. was standing by; that he did not see T. play cards, but saw him throw a dime down where they were playing cards, and some one picked it up; that he did not know whether they were betting or not; only saw the money on the ground, and saw C. dealing the cards; saw no one else but C. have any cards in his hands; did not know the name of the game they were

STATE ex rel. FLORAL CITY PHOSPHATE CO. v. HOCKER, Circuit Judge, et al. (Supreme Court of Florida. Jan. 30, 1894.) VENUE-WAIVER-PROHIBITION.

1. The statutory provisions that suits shall be begun only in the county where the defendant resides, or where the cause of action accrued, and that suits against two or more defendants residing in different counties may be brought in any county in which any defendant resides, and that suits against domestic corporations shall be commenced only in the county where such corporation shall have or usually keep an office for the transaction of its customary business, (sections 998, 999, 1001, Rev. St.,) are not limitations upon the constitutional

jurisdiction or powers of the circuit courts, but merely invest defendants with the privilege of being sued in such counties, which privilege they may waive.

2. The writ of prohibition does not lie to test the correctness of a ruling sustaining a demurrer to a plea setting up a mere privilege to be sued in another county than the one in which the action is pending, and to restrain further proceeding by the court in the cause, where the court has jurisdiction of the subject-matter, or power to decide the cause. The question is one arising in the progress of a cause of which the court has jurisdiction, and a writ of error at the proper juncture is the remedy.

(Syllabus by the Court.)

Original action, at the relation of the Floral City Phosphate Company, for a writ of prohibition to William A. Hocker, circuit judge, and others. Heard on demurrer to suggestion. Demurrer sustained.

D. D. Vennigerholz, Thomas Palmer, and T. P. Lloyd, for plaintiff. Raymond B. Bullock, for defendants.

RANEY, C. J.

This is a case of prohibition. The suggestion shows that the First National Bank of Ocala began an action in the circuit court in Marion county, which is in the fifth circuit, against the Floral City Phosphate Company, a body corporate under the laws of Florida, and W. M. Brooks and George C. Stevens, on a written instrument for the payment of money, made by the Floral City Phosphate Company, in favor of the named bank, and indorsed by the other defendants; such instrument appearing to have been made and being payable at Ocala, which is in Marion county. The declaration was filed on September 8, 1893, which was three days after the issue of the summons, which writ was returnable to the then ensuing October rules, and was served, on the day of its issue, on the Floral City Phosphate Company and Brooks, and on Stevens on the 16th day of September. The defendants appeared by attorney on the stated rule day. On November 6th a default for want of a plea was entered against Stevens. On the 7th day of November, a rule day, the Floral City Phosphate Company and Brooks filed "a joint and separate plea," to the effect that such company, at the time of the commencement of the action, had, and has, but one office for the transaction of its customary business, and that such office was and had been ever since its organization, kept at Floral City, in Citrus county, in the state of Florida, and that the company had never had or kept any office for the transaction of business in Marion county. They also filed two other pleas-one to the effect that before and at the commencement of the action the defendant William M. Brooks was, and long prior thereto had been, a citizen and resident of Hernando county, in this state, and had never been a citizen or resident of Marion county, and that neither the plaintiff, nor any one in its behalf, had made or filed with the praecipe in the action

an affidavit that the suit was brought in good faith, and with no intention to annoy the defendant, nor had such affidavit been since filed. The remaining plea is, in substance, that the summons was not served on the defendant company in Citrus county, Fla., where it kept its office for the transaction of its customary business, but was served in Marion county, Fla., where it had no offiEach cer or agent, resident or otherwise. plea ends with a verification and a prayer of judgment against taking cognizance of the action.

To these pleas the bank filed a demurrer, on the 16th of November, the points of which are that the defendants, by these pleas, admit the jurisdiction of the court over their persons; the matters set up are not proper subjects of a plea; and it is apparent upon the record of the cause that the defendants have entered a general appearance, thereby waiving all defects in the issuance and service of summons herein, and the pleas are otherwise insufficient and uncertain.

On the 21st of November, the circuit judge sustained the demurrer, defendants interposing the plea excepted, and the defendant Stevens being allowed 20 days to plead. The purpose in seeking a writ of prohibition is to restrain any further proceeding in the stated action.

The statutory provisions that suits shall be begun only in the county where the defendant resides, or where the cause of action accrued, or where the property in litigation is, and that suits against two or more defendants residing in different counties may be brought in any county in which any defendant resides, and that suits against domestic corporations shall be commenced only in the county where such corporation shall have or usually keep an office for the transaction of its customary business, (sections 998, 999, 1001, Rev. St.,) are not limitations upon the constitutional jurisdiction or powers of the circuit courts. On the contrary, they were made for the benefit or convenience of parties who may be sued, investing defendants with the privilege of being sued in such counties, which privilege they can waive; and if, on being brought into court, at least by personal service of process, they do not see fit to insist upon an observance of their rights in the premises, they will, notwithstanding the strong language of the statute, be deemed to have waived such privilege. An assertion of the privilege goes simply to an abatement of the action. McDougal v. Lea, 2 Fla. 532; Russ v. Mitchell, 11 Fla. 80; Bucki v. Cone, 25 Fla. 1, 6 South. 160; also, Curtis v. Howard, 33 Fla. 14 South. 812, decided at the present term, and holding that a general appearance is not, under our rules of practice, a waiver of the right to plead such privilege. The court not being without jurisdiction of the subjectmatter or power to decide the cause, the

question of the relators' right to the privilege set up by their pleas is a question arising in the progress of a cause of which the circuit court has jurisdiction; and a writ of error to the final judgment against the parties instituting this proceeding, should there be such a judgment, will be the proper remedy for reviewing in this court that court's action on the point now before us; but the writ of prohibition does not lie in such a case. State v. King, 32 Fla. 416, 13 South. 891; State v. Smith, 32 Fla. - 14 South. 43; Ex parte Gordon, 104 U. S. 515; Ex parte Baltimore & O. R. Co., 108 U. S. 566, 2 Sup. Ct. 876. Prohibition lies where the inferior court either has no jurisdiction to entertain the cause, or, while doing so, it goes beyond its legitimate powers. In the former case, the writ lies to prohibit it from acting at all, and, in the latter, to restrain it to its lawful powers in the premises. 19 Am. & Eng. Enc. Law, 263-265, 268, 269; Sherlock v. Mayor, 17 Fla. 93.

The demurrer to the suggestion will be sustained, and there will be final judgment in favor of the defendants.

OSBORNE v. STATE.

(Supreme Court of Florida. Jan. 16, 1894.) LICENSE-EXPRESS COMPANIES-INTERSTATE COM

MERCE.

1. A state cannot tax or regulate interstate commerce, or make the payment of a tax or the taking out of a license a condition precedent to carrying on interstate commerce. A state statute which does so, either expressly or in effect, is offensive to the commerce clause of the constitution of the United States, and void at least to that extent. The same is true as to foreign commerce.

2. A state statute which imposes a tax, in general terms, on the doing of specified kinds of business, or the pursuit of designated occupations, in the state, and requires that a license shall be taken out before any such business or avocation shall be done or engaged in, should not be construed to apply to any business of the kind that may constitute interstate commerce, but only to business that is domestic or state commerce, and to persons engaged, or intending to engage, in such domestic or state business.

3. Although interstate commerce cannot be taxed or regulated by state legislation, and the commerce clause of the federal constitution exempts all such commerce from regulation or taxation by state authority, yet the doing of business that constitutes interstate commerce, by a person who is also, at the same time, engaged in business of the same kind that constitutes state or local commerce, cannot be made a bar or exemption of the local or state commerce business from taxation or regulation by state authority.

4. The ninth section of the general revenue law of 1893, c. 4115, (approved June 2, 1893,) provides that no person shall engage in or manage the business, professica, or avocation mentioned therein without first taking out a state license, as provided therein, and paying the occupational tax and license fee prescribed thereby; and it authorizes counties and incorporated cities and towns to impose further taxes. to express companies its special provisions, substituting figures for words, are as follows: "All

As

express companies doing business in this state shall pay in cities of fifteen thousand inhabitants or more, a license tax of $200; in cities of ten thousand to fifteen thousand inhabitants, $100; in cities of five to ten thousand inhabitants, $75: in cities of three thousand to five thousand inhabitants, $50; in cities of one thousand to three thousand inhabitants, $25; in towns and villages of less than one thousand and more than fifty inhabitants, $10." Any express company violating these provisions, or any person that knowingly acts as agent for any express company before it has paid the tax payable by such company, is guilty of a mis lemeanHeld: or, and punishable as therein provided. (a) The act does not tax or regulate or apply to interstate commerce, as distinguished from state or local commerce carried on by an express company, but applies only to express business that is local or state commerce. (b) That so long as an express company confines its operations to express business that constitutes interstate or foreign commerce it is exempt from the above legislation; but if it engages in business that is state or local, as distinguished from interstate or foreign, commerce, it becomes subject to the statute, notwithstanding it may at the same time engage in interstate or foreign commerce. (c) The effect of the section, in so far as it imposes license taxes on express companies, is that each company doing any business that constitutes local or state commerce, as contradistinguished from interstate or foreign commerce, shall pay a state license tax, and take out a state license when it proposes to do business in any city or town or village having more than 50 inhabitants, the amount of such tax being, as above indicated, according to the popu lation. When there are, in one county, several cities or towns or villages belonging to one or more of the stated classes, the company must take out a separate state license for each city, town, or village it may intend to do business in. and pay the tax and the fee for the same. Any county may require each company doing business within its limits to pay, for doing business in any city, town, or village in the county, and within the provisions of the act, a li cense tax not exceeding 50 per cent. of the amount paid the state for doing business in such city, town, or village; and any incorporated city or town may impose a tax of as much as 50 per cent. of the state tax on any company doing business therein. (d) That the amount of the tax is not shown to be prohibitory or destructive of the business of express companies, even if it be that any judicial action could be based on such a showing. (e) The act is of uniform operation throughout the state as to all persons standing in the situation made the test of such taxation. (f) The ascertainment of population involved in the act is not one that the courts are incapable of dealing with successfully.

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shall be issued to each person on receipt of the amount hereinafter provided, together with the county judge's fee of twenty-five cents for each license, and shall be signed by the tax collector and the county judge, and have the county judge's seal upon it. Counties and incorporated cities and towns may impose such further taxes of the same kind upon the same subjects as they may deem proper, when the business, profession or occupation shall be engaged in within such county, city or town. The tax imposed by such city, town or county shall not exceed fifty per cent. of the state tax. But such city, town or county may impose taxes on any business, profession or occupation not mentioned in this section, when engaged in or managed within such city, town or county. No license shall be issued for more than one year, and all licenses shall expire on the first day of October of each year, but fractional licenses, except as hereinafter provided, may be issued to expire on that day at a proportionate rate, estimating from the first day of the month in which the license is so issued, and all licenses may be transferred, with the approval of the comptroller, with the business for which they were taken out, when there is a bona fide sale and transfer of the property used and employed in the business as stock in trade; but such transferred license shall not be held good for any longer time, or for any other place, than that for which it was originally issued."

The same section, in various subdivisions, then enumerates divers business occupations and professions that are required to procure licenses. and prescribes the amount of tax that each shall annually pay therefor, until we reach the twelfth subdivision of the section, that provides, among other things, that "all express companies doing business in this state, shall pay in cities of fifteen thousand inhabitants or more, a license tax of two hundred dollars; in cities of ten thousand to fifteen thousand inhabitants, one hundred dollars; in cities of five thousand to ten thousand inhabitants, seventy-five dollars; in cities of three thousand to five thousand inhabitants, fifty dollars; in cities of one thousand to three thousand inhabitants, twentyfive dollars; in towns and villages of less than one thousand and more than fifty inhabitants, ten dollars. Any express company violating this provision, and any person that knowingly acts as agent for any express company before it has paid the above tax, payable by such company, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than fifty dollars, or confined in the county jail not less than six months." Besides the criminal penalty above, section 10 of the same act provides that "the payment of all license taxes may be enforced by the seizure and sale of the property by the collector." For an alleged violation of this statute, in knowingly acting as agent at

Jacksonville, in Duval county, Fla., for the Southern Express Company, a corporation created under the laws of the state of Georgia, but doing business in Florida without having paid such license, F. R. Osborne, the plaintiff in error, was arrested upon affidavit and warrant, and required to give bond for his appearance before the criminal court of record for Duval county to answer said charge. Upon his refusal to give such bond he was committed to the common jail of the county, there to await trial, whereupon he applied to the judge of the circuit court for. the writ of habeas corpus to test the legality of his arrest and detention. Upon the hearing on habeas corpus the arrest and detention of the plaintiff in error on the charge alleged against him under this statute were adjudged to be legal, and he was remanded to the custody of the sheriff, and this order he brings here for review by writ of error.

The cause was submitted to the court below upon the following agreed statement of facts: "That the said F. R. Osborne is the agent of the Southern Express Company, and that said company is a corporation created, existing, and being under the laws of the state of Georgia. That said Southern Express Company is doing a business in the state of Florida ordinarily done by express companies in the United States,-of carrying goods and freight for hire from points within the state of Florida to points in said state, and also of carrying goods and freight for hire from points within the state of Florida to points without the state of Florida, in other states, in divers parts of the United States; and in carrying goods and freights for hire from points in other states of the United States to points within the state of Florida, and that it has been engaged in such business for more than 20 years, and was so engaged on the 3d day of October, 1893. That, of the business done by the Southern Express Company, 95 per cent. thereof consists of traffic carrying of goods and freights from the state of Florida into other states, and bringing and carrying from other states of the United States to points within the state of Florida, and 5 per cent. thereof consists of carrying goods and freights between points wholly within the state of Florida. That F. R. Osborne did knowingly act as the agent of said express company on the 3d day of October, 1893, in the city of Jacksonville, Duval county, Florida, a city having more than 15,000 inhabitants; the said Southern Express Company having then and there failed and refused to pay the license tax, as required by subdivision 12, § 9, of an act entitled 'An act for the assessment and collection of revenue,' of the Laws of Florida approved June 2, 1893. That the Southern Express Company does business in, and has agents in, more than one town in nearly every county in the state, and that said towns differ in population; and that it has an office and agent and does business in

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