Phenix Ins. Co. of Brooklyn v. Perkins

Citations

• 19 S.D. 59
• 101 N.W. 1110
• 1905 S.D. LEXIS 1

Syllabus

<p>1. Where an order-refusing a temporary injunction itself discloses that no discretion was exercised, but that it was on the ground that plaintiff had no cause of action, the rule that such order cannot be reversed in the absence of abuse of discretion has no application.</p> <p>2. Under Rev. Civ. Code, § 1276, providing that every stipulation in a contract which limits the time within which a party may enforce his rights thereunder is void, the provision in a policy of fire insurance that no suit shall be sustainable thereon, unless commenced within 12 months next after the fire, is void.</p> <p>3. Rev. Civ, Code, §664, providing that the State Insurance Commissioner shall keep on file in his office printed forms, in blank, of a contract or policy of fire insurance, and that the Commissioner shall, as near as the same can be applicable, conform to the type and form of the New York-standard fire insurance policy, is repugnant, in so far as it delegates' to the Commissioner power to prescribe the form of policy to be used, to Const, art. 3, § 17, requiring every bill to be rpad three times, that the lawmakers may know what they are doing, and hence he has no power to compel insurance companies to use any particular form of fire insurance policy.</p> <p>4. Where the State Insurance Commissioner attempts to compel foreign fire insurance companies to use a particular form of fire insurance policy, which has not been enacted as a law of the state, such companies are entitled to raise the question of his authority in a suit to restrain the Commissioner from compelling them to use the form, prepared by him.</p>