Opinion
No. 34888.
May 11, 1942.
1. INSURANCE.
Remedy provided by statute prohibiting insurance companies and agents from paying commissions to unlicensed persons, and authorizing revocation of license of company or agent for violation of the statute, is not "exclusive," but is an additional power which in nowise is in derogation of powers of Insurance Commissioner or Attorney General to deal with such situation which such officers may have aside from the statute (Laws 1938, chap. 194, sec. 3).
2. PARTIES.
"Intervention," by which a person not a party to pending action is permitted to become a party thereto on his own motion, supported by petition, without invitation or consent of original parties, is a practice unknown to the common-law courts of law and equity.
3. PARTIES.
In an action at law there can be no "intervention" except as otherwise allowed by statute.
4. EQUITY.
Generally, a chancery court will not proceed with equity case when it appears that a necessary party has been omitted.
5. EQUITY.
A third party may intervene in equity case if he is able to show by his petition that he has an immediate legal or equitable interest in the property in suit and that this interest is so involved therein that third party's title to or right in the property, as property, will be jeopardized by a decree which the court might enter in the case.
6. EQUITY.
In order to entitle third party to intervene in equity suit there must be involved in the original suit realty or personalty in or to which third party has some immediate right or title in whole or in part, legal or equitable.
7. EQUITY.
"Intervention" which is permitted in equity suit has reference to an "interest in rem" which includes an interest in personalty as well as realty, since a stranger can have no "interest" in a legal sense in a "suit in personam" unless personal decree sought is such as to compel the person specifically with respect to property, while in a "suit in rem," persons not parties may have such a claim or interest in the res as in the very justice of the situation may entitle them to intervene.
8. FORFEITURES.
There is no forfeiture of property for violation of law in Mississippi, in absence of statute expressly so providing.
9. FORFEITURES.
The law does not favor forfeitures and before a forfeiture will be decreed it must come within the terms of a statute imposing that liability.
10. INTERPLEADER.
In interpleader suit by escrow agent who held in escrow money which represented agents' commissions on insurance written on property in Mississippi, against nonresident corporate insurance agency and a resident insurance agent who disclaimed interest in the money, the state insurance commissioner was not entitled to intervene in order to present contention that arrangement regarding division of commissions was illegal, since state had no legal or equitable right to the money which would entitle the commissioner to intervene.
11. INTERPLEADER.
The Supreme Court was without authority to make an exception in favor of the state, to rule requiring one to have an interest in property involved in equity suit in order to authorize intervention, so as to allow the state insurance commissioner to intervene in a suit in order to bring a nonresident party thereto within reach of injunction which was sought in the petition for intervention.
APPEAL from the chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellant.
It clearly appeared from the allegations of the petition of intervention that Section 5205 of the Code was violated.
The right of the Insurance Commissioner to intervene must be determined by considering all the statutes upon the subject together, and, when so considered, the right of the Insurance Commissioner to resort to the court will clearly appear.
Mississippi Code of 1930, ch. 127; Laws of 1938, ch. 194; Mississippi Code of 1930, Secs. 1006, 5114, 5115, 5117, 5119, 5120, 5121, 5122, 5128, 5171, 5195, 5196, 5197, 5198, 5200, as amended by Laws of 1938, ch. 194, 5205, 5301, 6002, 6005.
In construing statutes all laws in pari materia should be considered together in order to ascertain the intention of the legislature.
Scott v. Searles, 1 Smedes Marshall 590; City of Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907; Barrett v. Cedar Hill Consolidated School District, 123 Miss. 370, 85 So. 125; Jackson County v. Worth, 127 Miss. 813, 90 So. 588; Peets v. Martin, 135 Miss. 720, 101 So. 78; Lauderdale County v. City of Meridian, 149 Miss. 139, 114 So. 803; Myers v. Desoto County, 156 Miss. 251, 125 So. 718. See other cases in Miss. Digest, "Statutes," Key No. 225.
See, also, Alexander v. Graves, 178 Miss. 583, 173 So. 417; Whitney National Bank v. Stirling, 177 Miss. 325, 170 So. 692; First National Bank v. Landau, 183 Miss. 651, 184 So. 618; Attala County v. I.C.R. Co., 186 Miss. 294, 190 So. 241; Lowe v. Simmons, 185 Miss. 88, 187 So. 214. See also authorities cited in Miss. Digest, titled "Statutes," Key No. 225; New Fed. Digest, 159, titled "Statutes," Key No. 225; Dec. Digest series, same title and Key number.
The very purpose of enacting these various statutes constituting the insurance chapter is to place a rigid control by the state over the insurance business transacted in the state. That the insurance business is a business which affects the public interest and is subject to legislative control is well settled by the law.
Hartford Fire Ins. Co. v. Phoenix Assurance Co., 282 U.S. 251, 75 L.Ed. 324, 51 S.Ct. 130, 72 A.L.R. 1163, and case notes at page 1173; German Alliance Assurance Co. v. Lewis, 233 U.S. 389, 58 L.Ed. 1011, L.R.A. 1915C, 1189, 34 S.Ct. 612; Tourette v. McMaster, 248 U.S. 465, 63 L.Ed. 362, 38 S.Ct. 160; Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 320, 72 L.Ed. 895, 899, 43 S.Ct. 512. For many authorities upon this proposition, see the new Federal Digest, Vol. 35, pp. 35-40, Key Nos. 3 and 4; 29 Am. Jur. 59, Secs. 22-31, Mississippi Digest, title "Insurance," Key Nos. 3 and 4; New York Life Ins. Co. v. Majet, 173 Miss. 870, 161 So. 156; State v. Alley, 96 Miss. 720, 51 So. 467; Wilkinson v. Goza, 165 Miss. 38, 145 So. 91; 14 R.C.L. 857, Secs. 25-31.
The state has a right to see that its laws are enforced and to resort to the courts in cases of necessity to enforce compliance with the statutes of the state.
Under Section 6002, the state is entitled to all rights and remedies that an individual would have in like circumstances, and no bond is required of a state officer of the state to prosecute any suit or to exercise any rights under Section 6005 of the Code.
A state, as a political corporation, has the right, independent of any statutory provision, to institute a suit in any of its courts, whether it be required by its pecuniary interests or the general public welfare. It possesses this right both in its sovereign capacity and by virtue of its coporate rights.
25 R.C.L. 408, title "States," Sec. 44; 59 C.J. 315, title "States," Sec. 469; Marshall Dental Mfg. Co. v. Iowa, 226 U.S. 460, 33 S.Ct. 168, 57 L.Ed. 300 (affirming) 122 N.W. 341, 143 Iowa 398; McGilva v. Ross, 251 U.S. 70, 54 L.Ed. 95-100, 30 S.Ct. 27; Dec. Dig., title "States," Key Nos. 190, 192; 44 Century Dig., Sec. 185.
A state has a right to resort to an injunction to prevent violation of laws of public policy.
State v. Mobile, etc., Ry. Co., 86 Miss. 172, 38 So. 752, 122 Am. St. Rep. 277, and see also a later report of this same case in 89 Miss. 725, 41 So. 459; 25 R.C.L. 409, and cases cited in notes 2 and 3.
States may have any remedy that individuals have in similar cases.
Georgia v. Brailsford, 2 Dal. (U.S.) 403, 1 L.Ed. 433; Georgia v. Tenn. Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038, 11 Ann. Cas. 480; Peoples v. Tool, 35 Colo. 225, 86 P. 229, 117 Am. St. Rep. 198, 6 L.R.A. (New Series) 822; Humphreys v. State, 70 Ohio St. 67, 70 N.E. 957, 101 A.S.R. 888, 1 Ann. Cas. 233, 65 L.R.A. 776; 25 R.C.L. 408 and note 17.
Insurance is a matter of vital importance to the public. It is affected with the public use and it may be regulated in many ways that would not be applied to an ordinary private corporation. The state has outlined its policy in the statutes contained in Chapter 127 of the Code and its amendments. It is the duty of the state, through its created office, the insurance commission, to protect the public from violation of these statutes.
State v. Salina County, 51 Mo. 350, 11 Am. Rep. 454; Florida v. Mellon, 273 U.S. 12, 47 S.Ct. 265, 71 L.Ed. 511; Carter v. Blaine County Inv. Co., 45 F.2d 643; U.S. v. Phillips, 33 F. Supp. 261.
It is argued that the state cannot intervene, unless it can put its finger upon the statute specifically authorizing it to do so. This can only be said with reference to actions at law but not to suits in chancery. One of the great objects of equity is to bring into court every person whose interest is affected in a particular suit to the end that all litigation concerning such controversy may be settled once and for all.
See Fletcher on Equity Pleading and Practice, pp. 34, 35, 36 and 37.
Intervention is distinctly a doctrine of equity that has come down to us with equity jurisprudence.
While an independent transaction, wholly disconnected from the matters in suit, cannot be litigated in intervention, yet all rights of all parties that are rooted in the subject matter of the suit may be brought in and adjudicated.
Griffith's Mississippi Chancery Practice, Secs. 410, 411.
A distinction between law and equity in this state as to intervention is shown in Hyman v. Cameron, 46 Miss. 725, and the efficacy of the doctrine of intervention was shown or applied in the case of Slattery v. Renoudet, 125 Miss. 229, 87 So. 888.
The state has full power to regulate insurance in all its forms — and the agents of insurance companies, including their salaries or commissions.
29 Am. Jur. 59, Secs. 22-27; O'Garman v. Hartford, etc., Co., 287 U.S. 251, 75 L.Ed. 324, 51 S.Ct. 130, 72 A.L.R. 1163; Nat. U.F. Ind. Co. v. Wanberg, 260 U.S. 71, 67 L.Ed. 136, 43 S.Ct. 32; 36 A.L.R. 1512 note N.W. Ins. Co. v. Fetlock; Anno. 119 A.L.R. 877.
State has right to intervene in private suits to protect public interest.
A.L.R. Digest, "Parties," Sec. 145; 22 A.L.R. 1101-at 1106; note at 1112 Anno.; Annotation 42 A.L.R. 1485; 71 A.L.R. 1354.
The General Insurors, Inc., came into court, setting up its claim and seeking the aid of the court to enforce its claim to the funds paid into court and setting up that it was the owner thereof and of necessity it appeared that the funds paid into the court were the result of the contract violating Section 5205 of the Code.
It is a familiar maxim of the courts of equity that he who comes into the court of equity must come with clean hands or else the court of equity will not aid him in securing any right.
Griffith's Mississippi Chancery Practice, p. 45, Sec. 42; 19 Am. Jur. 323, Secs. 469-476; Galloway v. Inglis, 138 Miss. 350, 103 So. 147; Moss v. Live Stock Board, 154 Miss. 765, 122 So. 776; Miss. Digest, title "Equity," Key No. 65 and cases there cited; McClellan v. McCauley, 158 Miss. 456, 130 So. 145; Mullins v. Taylor, 132 Miss. 551, 97 So. 5; Brotherhood of Railroad Trainmen v. Agnew, 170 Miss. 614, 155 So. 204.
The effect of these cases and doctrine is that the court of equity should have denied the relief to the General Insurors, Inc. Equity certainly will not permit a litigant to disregard statutory provisions of the state. It seems to have been the view of counsel for General Insurors, Inc., that the state had no concern with this contract between the General Insurors, Inc., and John W. Robinson, or between the Caledonian Insurance Company and John W. Robinson. This view, of course, cannot be entertained by the courts for the reason that the state has undertaken to make regulations clearly within the power of the legislature and is entitled to prevent the contracts from being carried out.
It was argued that there was no statute giving the state any title to the funds and, unless the funds were paid to the General Insurors, Inc., or to John W. Robinson, of Robinson Julienne, the funds would remain in court without an owner. The result of such a situation clearly would be that neither party to an illegal contract can use the courts to obtain any benefit from their illegal act or wrongful conduct. Inasmuch as Section 5205 expressly forbids such a contract, it is clear that it is an illegal contract and neither party to such contract can come into the court of equity and claim the fruits of such contract.
Whittington v. H.T. Cottam Co., 158 Miss. 847, 130 So. 745; Jones v. McFarland, 178 Miss. 282, 173 So. 296; Dixie Rubber Co. v. Catoe, 145 Miss. 342, 110 So. 670.
Courts are not open to parties voluntarily participating in illegal contracts violating the statutes or public policy.
Green v. Brown, 159 Miss. 893, 133 So. 153.
In the case at the bar, the law does prohibit parties from making contracts here involved and it is made a crime against the dignity of the state by the criminal laws, and, consequently, neither of the parties are entitled to the funds and, as the funds were due, under the requirements of the law, from the Caledonian Insurance Company, it follows, of necessity, that neither party can profit by violating the law and, there being no other claimant, it goes to the state.
Our contention with reference to the forfeiture of the money paid into the court and the interpleader is not based upon the statutory provisions of the insurance chapter so far as forfeitures are concerned, but is based upon the principles that the interpleader suit showed, and would show on the trial, if the insurance commissioner were permitted to intervene, that the party being in the court of equity could not set up a right based upon an illegal contract under equitable doctrines; that a party could not come into the court of equity without coming in with clean hands, or, as expressed in another way, a party who had committed iniquity about the particular transaction. Here, both parties, according to my conception, were trying to assert rights based upon a violation of the law and the public policy of the state. Equity would not permit them to come into court and get relief, but would dismiss them as wrongdoers. The money being in the court disclaimed by the interpleader and not being subject to the claim of the General Insurors or of John W. Robinson, or Robinson Julienne Insurance Agency, or Louis Julienne, the law would then in that attitude direct the money to be paid to the state as common owner of all the property not belonging to somebody else.
From a comparison of all the statutes, it is clear that Chapter 194, Laws of 1938, is not intended to be exclusive in its provisions.
I submit that Section 5122 of the Code, giving the insurance commissioner the right to resort to courts is a remedial statute, and should have a liberal interpretation. It applies to everything not specifically excepted by its terms, and the terms are quite comprehensive. They are coextensive with the power given the insurance commissioner in Section 5114 of the Code.
Green v. Anderson, 39 Miss. 359; Excelsior Mfg. Co. v. Keyser, 62 Miss. 155, 25 R.C.L. 1077, Sec. 299; Fed. Digest, "Statutes," Key No. 236.
The power to sue is intended to be exercised when appropriate, and it never was the intention of the legislature to make Section 3 of Chapter 194 an exclusive method of dealing with violations of law as to the agent's commissions in writing or signing and assuming the risks of policies.
A careful study of the entire insurance chapter will convince a judicial mind that the General Insurors were not entitled to these funds or any part of them under the circumstances disclosed by the petition for intervention which the petitioner seeks to have an opportunity to verify by proof.
William Harold Cox and Watkins Eager, all of Jackson, for appellee.
The appellant undertook to intervene in this suit in his own name and right. This is not an effort on the part of the Attorney General to intervene for and in the name of the state. The state has not sought to become a party to this suit. No statute has yet been cited to support appellant's claim to the money in suit.
The appellee's position is that the commissioner admits that it is a licensed agent in Missouri, and even if the money actually belongs to Washington Fire Marine Insurance Company under the facts, the cause of the appellant would not be aided. The appellant falls far short of establishing his claim to the fund and does not even undertake to charge in his answer that appellee has not assisted in obtaining and writing the insurance from which the commission was earned. That being so, regardless of what appellee did with the money, it would belong to appellee. It is our contention that under no circumstances would the appellant be entitled to the money. If there were a violation of Chapter 194, Laws of 1938, the commissioner could revoke the license of either Robinson or the Caledonian Insurance Company under Section 3 of the act but has no further authority in the connection. He is given no right by statute to sue even if he sued by his official title of Commissioner of Insurance. In this case he was seeking to intervene in a pending action and sought to inject multifarious and incongruous issues into this case and even sought to bring in an insurance company in St. Louis who was not a party to the suit. It is our position that he has no authority except such as is given him by statute, and that no statute can be found to authorize him to seek an injunction against any insurance agent under any facts in this case. In fact, he only has authority to seek an injunction against an insolvent insurance company doing business in this state under the circumstances outlined in Section 5128, Mississippi Code of 1930. Since he had no semblance of claim to the money in suit, he was not entitled to intervene therein under the pretext of seeking an injunction against the respondents in this case and against an insurance company in St. Louis, Missouri, not a party to the suit.
The pretended offense asserted by the appellant to have been committed by the insurance agents is a creature of statute. Chapter 194, Mississippi Laws of 1938, defines the offense, makes the exceptions thereto and provides the exclusive remedy for its enforcement and violation.
See Mississippi Code of 1930, Sec. 5122; Laws of 1938, Ch. 194; Aetna Ins. Co. v. Roberston, 126 Miss. 387, 88 So. 883; Barnes v. Jones, 139 Miss. 675, 103 So. 773; Briscoe v. Buzbee et al., 163 Miss. 574, 143 So. 887; Dunn Construction Co. v. Craig, State Tax Collector, 191 Miss. 682, 2 So.2d 166; Essick v. Essick, 175 Miss. 412, 167 So. 420; Fidelity Deposit Co. of Md. v. Tafoya, 270 U.S. 426; Gully v. Mutual Casualty Co., 176 Miss. 388, 166 So. 541, 168 So. 609; Harris v. Pounds, 185 Miss. 688, 187 So. 891; Henry v. State, 87 Miss. 1, 88 Miss. 843, 39 So. 856; Jefferson Standard Life Ins. Co. v. Noble, 185 Miss. 360, 188 So. 289; Mississippi Live Stock Sanitary Board v. Williams et al., 133 Miss. 98, 97 So. 523; Morris Co. et al. v. Skandinavia Ins. Co., 279 U.S. 405; Morris Co. v. Skandinavia Ins. Co., 161 Miss. 411, 137 So. 110; State ex rel. Gully v. Mutual Life Ins. Co., 189 Miss. 830, 196 So. 796; Stewart v. Baltimore O.R. Co., 168 U.S. 448; Waits v. Black Bayou Drainage Dist., 186 Miss. 270, 185 So. 577; 1 Am. Jur. 411, Sec. 12; 25 C.J. 1192; 59 C.J. 1130.
The commissioner was without statutory or legal authority to intervene in the suit in the lower court and his petition so to do was properly denied.
See Mississippi Code of 1930, Ch. 27; Mississippi Code of 1930, Secs. 1511, 1512, 1525, 3669, 4363, 5121, 5122, 5128, 5166, 5205, 5301, 5316, 5319, 6000, 6001; Laws of 1938, Ch. 194; Aetna Ins. Co. v. Roberston, 126 Miss. 387, 88 So. 883; Bush v. Ross, 90 Miss. 32, 43 So. 70; Capitol Stages, Inc., v. State ex rel. Hewitt, 157 Miss. 576, 128 So. 759; Crystal Springs Bank v. New Orleans Cattle Loan Co., 132 Miss. 52, 95 So. 520; Gully, State Tax Collector, v. Mutual Life Insurance Co., 189 Miss. 830, 196 So. 796; Hancock County v. State Highway Commission et al., 188 Miss. 158, 193 So. 808; Moore, Land Commissioner, v. Eastman-Gardner Lbr. Co., 156 Miss. 359, 126 So. 44; People ex rel. Rochester Tel. Co. v. Priest et al., 73 N.E. (N.Y.A.) 1100; State Mineral Lease Commission v. Lawrence, 171 Miss. 442, 157 So. 897; State ex rel. Nall, Land Commissioner, v. Williams, 99 Miss. 293, 54 So. 951; State ex rel. Rice v. Hartman, 179 Miss. 634, 176 So. 529; Griffith's Mississippi Chancery Practice, Secs. 410, 411; 1 Am. Jur. 418, Sec. 21; 47 C.J. 103, Sec. 196; 47 C.J. 107, Sec. 206.
Argued orally by Geo. H. Ethridge, for appellant, and by W.H. Watkins, for appellee.
The case is here on the pleadings, and only that which is sufficient to disclose the determinative points will be stated. The Washington Fire and Marine Insurance Company is a foreign insurance corporation not admitted to do business in this state. The General Insurors, Inc., is a nonresident corporation engaged in the business of an insurance agency, and neither of said corporations has any agent in this state upon whom service of process may be had. John Robinson is an insurance agent resident in this state. The Caledonian Insurance Company is a foreign insurance company licensed to do business in this state, and with agents here upon whom process may be served.
During the period between September 1, 1940, and August 15, 1941, the parties aforesaid had engaged in a plan of operation by and under which the agents' commissions and services rendered on insurance written by the Caledonian upon certain property in this state, which commissions amounted to $42,597.06, were to be divided and were in fact divided in a manner which the Insurance Commissioner contended, and now contends, was violative of the provisions of Chapter 194, Laws 1938.
When this contention was placed squarely before the Caledonian Company by the Insurance Commissioner, that company took such steps as resulted in the delivery of the sum of $34,321.23 to Harold Cox, a resident of this state, as escrow agent. This sum represented the $42,597.06 less 20 percent thereof already theretofore paid to Robinson under the plan of operation which the Insurance Commissioner had challenged. Cox thereupon filed his bill of interpleader making as parties defendant thereto General Insurors, Inc., and John Robinson, and deposited, at the same time, the $34,321.23 in the registry of the court. Robinson appeared and disclaimed any interest in the fund, averring that under his contract with these parties he was entitled to only 20 percent of the agents' commissions, which 20 percent had already been paid to him, and General Insurors, Inc., appeared setting up its claim to the entire amount of the deposited fund. Thus it appeared that there was no actual controversy between the parties to the original interpleader suit.
In this situation the Insurance Commissioner, by the Attorney General, filed his petition of intervention by which he sought to show that the real controversy was one between the parties and the state; and as to whether the aforementioned arrangements between the parties for a division of the agents' commissions and services were violative of the cited chapter of the laws, the state by its proposed intervention sought to litigate these issues, although the state was not made a party to the original and pending suit. The complainant demurred to the petition of intervention, the demurrer was sustained, and on the appeal from that action, the decree was sustained by this court on the ground that the sole and exclusive remedy by which the Insurance Commissioner could act in the premises would be by a revocation of the license of the agent or company who had violated the statute. See 6 So.2d 922.
Upon a further and a prolonged reconsideration of the case upon the suggestion of error, we have concluded that the authority to revoke the license, as mentioned in Section 3 of the cited chapter, is not an exclusive remedy, but is an additional or cumulative power or authority, which in nowise is in derogation of the powers and authority of the Insurance Commissioner or the Attorney General to deal with such a situation which these officers, one or the other, or both, possess or may invoke under the law aside from said Section 3. We do not elaborate upon the reasons and principles which have led us to our present conclusion upon that point, but having announced it, we withdraw in its entirety the opinion heretofore delivered, and proceed to the question whether under our practice the petition of intervention was entertainable; and this question we answer in the negative, and upon procedural principles now to be stated.
Intervention by which a person not a party to the pending action or suit is permitted to become a party thereto on his own motion, supported by petition, without the invitation or consent of the original parties, is a practice which was unknown to the common-law courts of law and equity, and this was expressly so declared in Hyman v. Cameron, 46 Miss. 725. And this rule prevails to this day in actions at law except as otherwise allowed by statute. City of Biloxi v. Gully, 187 Miss. 664, 672, 193 So. 786.
Under the influence of the general rule in equity that the court will not proceed when it appears that a necessary party has been omitted, courts of chancery in this state, and without statutory aid, later qualified the pronouncement in Hyman v. Cameron and admitted intervention by a third party when such a party by his petition was able to show that he had an immediate legal or equitable interest in the property in suit and that this interest was so involved therein as that the intervenor's title to or right in the property, as property, would be jeopardized or beclouded by the decree which the court might make in the suit between the original parties.
The development and the present attitude of the practice in that regard is set forth in Griffith Miss. Chan. Pr., Secs. 410 and 411; and in addition to the cases therein cited, reference may be had to the latest case on the subject, Shuptrine v. Natalbany Lbr. Co., 189 Miss. 409, 413, 198 So. 24. It will be seen on an examination of the cases that they have gone no further in this state than to meet the situations which have been mentioned in the next foregoing paragraph herein, and that there must be involved in the original suit real or personal property in or to which the intervenor has some immediate right or title in whole or in part, legal or equitable.
Note 12 on page 425 of the text above cited is as follows: "The intervention in its nature has reference to a claim or interest in rem, for a stranger can have no interest in a legal sense in a suit in personam, unless the personal decree sought is such as to specifically compel the person with respect to property. In a suit in rem, however, persons not parties may have such a claim or interest in the res as in the very justice of the situation may entitle them to intervene." When it is understood that the interest in rem mentioned in that note may include personal as well as real property, and that the specific personal compulsion has reference to property in which the intervenor has an immediate right or title legal or equitable in whole or in part, the note is hereby approved as a concise summation of the rule as it exists in this state; and without the aid of statute, we must decline to extend it further.
The question, then, which lies at the threshold is whether the proposed intervenor has any legal or equitable right or title to the res involved in the suit. The intervenor, petitioning in behalf of the state, alleges that the state has title because the money involved was acquired through violation of the law and that in consequence it has become forfeited to the state, and that the state is entitled to the money rather than the original parties to the suit or either of them. Without entering upon any discussion of the ancient common law by which forfeitures were pronounced for treason and felonies, it is enough to say that for offenses or violations of the law, there is in this state no such thing as a forfeiture of the property to the state in the absence of a statute expressly so providing, 23 Am. Jur., pp. 600, 601, and no statute has been pointed out, and we have found none, which so provides in a case such as here before us. This court has recently said in Citizens' Bank v. Grigsby, 170 Miss. 655, 666, 155 So. 684, 686, that "The law does not favor forfeitures, and before forfeitures will be decreed or adjudged, they must come within the terms of the statute imposing that liability."
It is earnestly argued by the state that inasmuch as one of the parties directly involved is a nonresident of this state, and no service can be had upon that party by an independent suit, the intervention should be allowed so as to bring that party within the reach of the injunction against the parties which is prayed in the petition for intervention. No case has been cited, and we are confident that none such can be found, which, in the absence of statute, allows an intervention on that ground. If this were allowed as to suits where private parties only are concerned, there is readily to be seen the abuses and anomalies which could and would result; and while it might prove salutary in the present case to make an exception in favor of the state, we deem ourselves to be without authority to make any such exception.
It may be that, in view of the fact that the interpleader and the proceedings thereunder by the parties thereto disclosed that no actual controversy existed between the parties and that the real object of the proceeding was to obtain the semblance of judicial sanction to the course of conduct theretofore pursued by them, the chancery court should not have proceeded with the interpleader case but in the meantime should have held the money which it had in its registry until the complainant therein had made the state, through its Insurance Commissioner or Attorney General, or both, a party to the cause, and permitted thereby the assertion of such rights germane to the litigation as the state may have therein; but under the present appeal we are not called upon to intimate or express any opinion whatever on that feature, and we mention it only for the purpose of disclosing that we have not overlooked it.
Inasmuch as the demurrer was properly sustained for the reasons which we have now stated and which would lead to the affirmance which we ordered on the original submission, it follows that the decree then entered was correct and that the suggestion of error must be overruled, and it is. So ordered.
Regardless of what state officer has the right to sue it is manifest to me that the only remedy is revocation of license to do business in the state. The statute plainly provides that for a violation of the act that is the remedy. Surely it is unnecessary to cite authorities to sustain the proposition that when there exists a general statute on any subject and later the legislature by another act lifts out of the general statute a particular branch of it and deals with it specifically and differently from the way it is dealt with in the general statute, to that extent the subsequent statute controls over the former. The decisions of the courts of this country so holding are numerous, a citation of them would probably cover several pages.
Under the authorities cited in the controlling opinion there may be intervention where the proposed intervenor "claims" an interest in a fund in the court. The court does not adjudicate in advance whether he has a real interest in the fund. The claim of an interest is all that is necessary. If it develops on the trial of the cause that the intervenor has no interests, of course that would mean that he had no right to intervene. In other words, intervention is not a preliminary question to be decided by the court before the cause is reached on its merits.
I concur in overruling the suggestion of error, but not in all that is said in the controlling opinion.