The daily morning journal and courier. [volume] (New Haven, Conn.) 1894-1907, 1897-01-12

his acts. They shall flnallysay wheth-
err his orders shall stand or fall. An
abuse of his powers can only be tent
porary,
We thus find abundant authority in
the statutes referred to and in others
unnecessary to refer to which support
this action and it makes no difference
in the power of the commissioner
whether the company be solvent or
not.
2. Grounds of demurrer 10, l6, 20, 81
and % allege in substance that the or
ders are unconstitutional because in
violation of the contract rights of
stockholders, and depriving them of
their property without due course of
law or trial by jury and that the stat
utes granting the commissioner such
powers are unconstitutional
1t is too late day to question the
constitutionality of the statutes organ
izing the insurance department and
defining the powers and duties of the
insurance commissioner.
Sinking Fund Cases, so United States,
700.
Attorney General, VS.. Insurance COM
pany, 81 New York, 1S3
Beach on Insurance, sections 20, 1928
and 3S.
The other grounds of claimed uncon-
stitutionality require no discussion.
Most of these grounds of demurrer
contain new matter, which has no place
in demurrer.
8. Ground of demurrer 10 is that this
action is barred by the statute of limit
atoms.
This ground overlooks the allegations
of the complaint that the methods of
business complained of are still pur-
sued, which of itself makes this ground
ineffective.
The statute of limitation cannot I'M
der our practice be taken advantage of
in demurrer; it must be pleaded by
way of answer.
4. In grounds Of demurrer 4, 5, 9 and
IL the defendant claims that the acts
set forth in the complaint We're done
under legislative authority and with
the approval of the state insurance de-
partment and are therefore neither IL
legal nor improper and the commissioner
cannot make orders in reference to the
same and that his orders seek to over
rule the antecedent orders of the in
surance department and are thus in
valid
These grounds of demurrer introduce
new matter-this can be taken advan-
tage of by way of answer and not in a
demurrer to the complaint.
1t would, we think be difficult to find
in these grounds of demurrer as stated,
even if pleaded by way of answer, any
complete defence to this complaint.
The complaint alleges a continuous
course of wrongful transfers of funds
from 1870 to the date of this action.
The wrongs charged are not only past,
but present and continuing wrongs. A
plea of legislative authority to do
something existent years ago cannot
avail for acts done subsequent to such
legislative authority.
We believe that the legislature never
intended by the acts referred to to give
the defendant the right to appropriate
for its stockholders the property of it's
mutual policy holders.
The difficulty of sustaining legislative
acts which are authorized such a course
would seen to be unsurmountable and
afford strong ground for the position
that the legislature never intended such
a consequence.
5. The fifth and twelfth grounds of
demurrer are general, not special de-
murrers, apparently affording no valid
ground of defence.
o. The seventeenth ground of de-
murrer alleges new matter available If
at all, in an answer
It is claimed that because the court
| cannot remedy these wrong in whole
| 1t must not attempt their remedy. The
| court will go as far as it can in remedy
ing wrongs charged. What can be
done in this case, if the facts of the
| complaint be sustained, cannot be de-
| termined at this stage of the case.
1t is claimed that the acts charged
are not in violation of the contract of
insurance with the mutual policy hold
ers. The complaint, we think. express
| ly negatives the claim.
| The demurrer is overruled.