Vilas County news. [volume] (Eagle River, Vilas County, Wis.) 1896-1927, 1904-04-04
JUDGE DUNWIODIE DECIDES FOR STATE
OFFICERS IN THE EQUITABLE CASE
LEGISLATURE INTENDED AND DID ENACT
A MANDATORY STATUTE
Companies Must Distribute Profits With
Policy Holders at Least Once
i'm Five Years

they may have accumulated annually,
or once in two, three, four or five
years, as the directors thereof may
from time TO time determine. In de-
termining the amount of the surplus
to be distributed, there shall be re-
served an amount not less than the
aggregate net value Of all the outstand-
ing policies, said value TO be computed
by the American experience table of
mortality with interest not exceeding
AZ per cent"
MIR. Host Upheld.
After hearing argument on the sub
ject Commissioner Host decided on
August 1, 1908, that the statute was
mandatory and that the companies
must divide their SURPRISES as often as
once in five years.
At that time he sent notices TO the
SO companies doing business in the
state, affected by the ruling that they
would divide their surplus among their
policy-holders at least once in five
years, under penalty of having their
licenses revoked.
Subsequent to this action on the part
of the insurance commissioned, the
Equitable society began injunctional
proceedings in the Milwaukee county
circuit court asking that Mr.. Host be
restrained from enforcing his order.
The case was transferred TO the Dane
county circuit court
Ounwiddie's Opinion.
Judge Dunwiddie confined his opin-
ion almost entirely to an expression
upon the statute in question, holding
that it is mandatory. An appeal will
be taken. In closing his decision, Judge
Dunwiddie said:
Has there been a practical colstruc-
ton OF said section 1852 as permissivD,
by the state insurance department,
which is now binding upon the court?
1t is contended that the issue annu-
ally by the state insurance. department
of licenses TO the plaintiff company
and others, issuing deferred dividend
policies 10 do business in Wisconsin,
operates as a practical construction of
said section as permissive, and as such
is now binding.
4 cannot assent TO such contention.
do not believe that the mere issue
of licenses by the department, under
the circumstances proven, is entitled
TO much, If any, consideration upon the
question of practical construction. The
effect of the restrictive character of
the section upon the issue of deferred
dividend policies was never raised, dis
cussed, or ruled upon. The most that
can be said is, that the insurance de.
partment neglected To examine the is
sue of such policies. Public officers
cannot nullify the force of such a stat
ute by negleCting to enforce it.
The doctrine of the practical con-
strCctiOn only obtains in case of an
obscure doubtful statute which, OF ne
cess.ty, has received a construction that
has been accepted and acted upon for
a long period and whereby certain
rights have become vested. 1t has no
in case of a statute which
is not doubtful or uncertain.
SeCtion MOI obscure.
The section in question here is not
obscure, doubtful or uncertain, in a
sense to bring il within the rule of
practical construction. And the neg
iect of the insurance department TO
enforce il, as against deferred premium
policies was in no sense a construc-
zion. And the fact that the plaintiff
company was allowed in the past To is
sue such policies, gives it no vested
rights TO continue TO do so.
There still remains the question
the deferred dividend policy
issued by the plaintiff company, is in
Of the mandate OF sec
ton 1852.
1t seems 10 me that both in form I
and in spirit il is clearly within the
prohibition Of sucf section. 1t is is I
sued by a life insurance company do
ng business upon the principle OF mu-
-ual insurance. II is a policy by the
.erms Of which the policy holder. while
his policy Is in force. is entitled TO
share in the surplus funds of said COM
lany. and the time whel distribution
shall begin is expressly deferred for a .
period Cf more than five years, to-wit
lf ten. fifteen or twenty years.
My conclusion is, that If the plain
in company insists upon its right 10