McDonald v. State.

safety of the public. Railroad Co. v. Fuller, 17 Wall. 560; Mobile etc., R. Co. v. State, 51 Miss. 137; Com. v. Eastern R. Co., 103 Mass. 254; s. c., 4 Am. Rep. 555; People v. Boston & Alb. R. Co., 70 N. Y. 569; Railroad Commissioners v. Portland, etc., R. Co., 63 Me. 269; s. c., 18 Am. Rep. 208; Davidson v. State, 4. Tex. Ct. App. 545; s. c., 50 Am. Rep. 166; Tiedeman Lim. of Police Powers, § 194; Cooley Const. Lim. (5th ed.) *579 et seq.

The exaction of a license in such a case does not impose a direct burden upon inter-State commerce or interfere directly with its freedom. It only "acts indirectly upon the business through the local instruments to be employed, after coming within the State." It does not belong to that class of subjects which are national in their character and admit of but one system of regulation for the whole country having in view the prevention of unjust discrimination and the preservation of the freedom of transit and transportation from one State to another. Wabash, etc., Ry. Co. v. Illinois, 118 U. S. 557, and cases there cited.

The case of Robbins v. Shelby County Taxing District, 120 U. S. 489; s. c., 59 Am. Rep. 267, does not conflict with the foregoing views. The license there exacted of foreign drummers was held to be a tax on inter-State commerce. It was not a police regulation. Even in that case the stronger reasoning, in our judgment, is with the able opinion of Chief Justice WAITE concurred in by Justices FIELD and GRAY.

In Port of Mobile v. Leloup, 76 Ala. 401, we sustained as constitutional an ordinance of the port of Mobile imposing a license tax upon a telegraph company doing business in that city, between this and other States, which was inter-State commerce. In this we

followed as authority the case of Osborne v. Mobile, 16 Wall. 497, in which the United States Supreme Court sustained a similar license on an express company under like circumstances. The same question had been before decided in Southern Express Co. v. Mayor, etc., Mobile, 49 Ala. 404. In City of New Orleans v. Eclipse Tow-boat Co., 33 La. Ann. 647; s. c., 39 Am. Rep. 279, in like manner, a city ordinance exacting a license fee from the owner of tow-boats, running on the Mississippi river to and from the Gulf of Mexico, was held not unconstitutional as a regulation of commerce, upon authority of the same decision. In Am. Union Tel. Co. v. Western Union Tel. Co., 67 Ala. 26, we held that the provisions of our Constitution, prohibiting foreign corporations from

McDonald v. State.

doing business in this State without having at least one known place of business and an authorized agent therein, "was a legitimate exercise of the police power, and was not a regulation of commerce, as applied to a telegraph company doing business between this and other States."

2. The other objections to the law, based on constitutional grounds, are in our opinion not maintainable. It does not confer judicial power on the board appointed by the governor, nor does it deprive the citizen of his liberty or property without due process of law. The vesting, by legislative authority, of the power to license various occupations and professions, requiring skill in their exercise, or the observance of the law of hygiene, or the like, has never been construed to be obnoxious to these objections. It has been uniformly held that laws providing by accustomed modes for the licensing of physicians, lawyers, pilots, butchers, bakers, liquor dealers, and in fact all trades, professions and callings, interfere with no natural rights of the citizen secured by our Constitution. Mayor, etc., Mobile v. Yuille, 3 Ala. 137; s. c., 36 Am. Dec. 441; Dorsey's case, 7 Port. 295; Cooper v. Schultz, 32 How. Pr. 107, and authorities cited; Coe v. Shultz, 47 Barb. 64; Metropolitan Boara of Health v. Heister, 37 N. Y. 661; Reynolds v. Shultz, 34 How. Pr. 147; People v. Medical Society of New York, 3 Wend. 426; Metropolitan Board of Excise v. Barrie, 34 N. Y. 627; Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 U. S. 703; Slaughter-House cases, 16 Wall. 36.

The case of Yick Wo v. Hopkins, 118 U. S. 356, does not in our opinion, lend any favor to the contention of appellant. The municipal ordinance, there pronounced invalid, vested in the board of supervisors the arbitrary power to license public laundries at their own mere will and pleasure, without regard to discretion in the legal sense of the term, and without regard to the fitness or competency of the persons licensed, or the propriety of the locality selected for carrying on such business. Properly construed this case favors the views above expressed by us.

The rulings of the court accord with these views, and the judg 's affirmed. Judgment affirmed.

Commercial Fire Insurance Company v. Capital City Insurance Company.

COMMERCIAL FIRE INSURANCE COMPANY V. CAPITAL CITY INSUR ANCE COMPANY.

When a builder contracts to furnish materials and build a house for another person, at a stipulated price, payable in installments as the work progresses, and takes out a policy of insurance on the house during its construction, and it is destroyed by fire before completion, the loss is his, although he may have received partial payment by installments; and having assigned the policy to the person for whom the house was built, the latter may maintain an action on it, or may assign it to another person with whom he had effected insurance on the house.

A

CTION on an insurance policy. The opinion states the case. The plaintiff had judgment below.

Troy, Tompkins & London, for appellants.

Sayre & Graves, contra.

STONE, C. J. It cannot be questioned that to maintain an action such as the present one, there must have been, when the policy was taken out and when the loss occurred, such ownership or right as amounts to an insurable interest, and the plaintiff must show himself entitled to assert that interest. Lynch v. Dalzel, 3 Bro. Parl. Cas. 497; Sadlers' Company v. Badcock, 2 Atk. 554; Wilson v. Hill, 3 Metc. 66; 1 Phil. Ins. 59; May Ins., §§ 115, 116.

Form 16, Code of 1876, p. 704, is framed for a suit on a policy of insurance. It contains no averment of property or insurable interest in the plaintiff. In section 2979 of the Code it is provided that "any pleading which conforms substantially to the schedule of forms attached to this part is sufficient." Form 16 is one of said forms. It must be inferred that the legislature treated the averment that the policy was issued by the insurance company as equivalent, prima facie, of an averment that the assured owned an insurable interest in the property. Each count in the complaint is sufficient and the demurrer to it was rightly overruled. 2 Brick. Dig. 344-5.

On May 26, 1884, T. J. Holt, a builder and contractor, entered into a written agreement with Mrs. Barrett by which he bound

Commercial Fire Insurance Company v. Capital City Insurance Company. himself to furnish the materials and build a house for her according to certain plans and specifications, the house to be completed by October 1, 1884, with stipulated forfeiture in case the house was not finished by the agreed time. Mrs. Barrett promised and agreed to pay Holt for so building the house "$2,065, which payments are to be made in installments as the work progresses, but she shall reserve at least $300 of said money until after the full completion of said house."

On August 11, 1884, the building being in progress, Holt, the contractor, took out a policy in the Commercial Fire Insurance Company insuring the building against damage by fire in the sum of $2,000, and for two months, extending to October 10, 1884. The policy, by its terms, insures Holt, his representatives and assigns, "against loss or damage by fire, to the amount of $2,000, builders' risk, on the frame store-house and dwelling now in process of erection," describing its locality. The house was nearing completion and Mrs. Barrett had paid Holt near $1,900 on his contract when on September 15, 1884, it was totally destroyed by fire.

On August 30, 1884, after Mrs. Barrett had so made the advance payments to Holt she took out a policy from the Capital City Insurance Company insuring said house to her for the term of twelve months, "against loss or damage by fire, to the amount of $2,000, permission granted to complete the construction of said building and fences. Loss, if any, payable to the Home Building and Loan Association, as its interests may appear.". The house when destroyed was still in the possession of the contractor not having been delivered up to Mrs. Barrett. On the foregoing facts it is contended for appellant that Holt had no insurable interest in the property and that this action cannot be maintained.

After the fire the policy issued by the Commercial Fire Insurance Company was assigned and transferred by Holt to Mrs. Barrett, and by her to the Capital City Insurance Company. The latter company brings this suit on said policy. We are not informed on what consideration these assignments were made. Possibly Holt's transfer was made in exoneration of an asserted liability resting on him to rebuild his house, the first not having been completed and delivered to Mrs. Barrett. Possibly the Capital City Insurance Company paid the loss to Mrs. Barrett or to her appointee, and she in consideration thereof transferred to it the policy sued on in this

Commercial Fire Insurance Company v. Capital City Insurance Company. action. If these surmises be true this is but a contest between the two insurance companies as to which shall bear the ultimate loss. "It may be said generally," says May in his work on Insurance, section 76, speaking of what will constitute an insurable interest, "that while the earlier cases show a disposition to restrict it to a clear, substantial, vested pecuniary interest, and to deny its application to a mere expectancy without any vested right, the tendency of modern decisions is to relax the stringency of the earlier cases and to admit to the protection of the contract whatever act, event, or property bears such a relation to the person seeking insurance, that it can be said with a reasonable degree of probability to have a bearing upon his prospective pecuniary condition. * Yet such a connection must be established between the subject-matter insured and the party in whose behalf the insurance has been effected as may be sufficient for the purpose of deducing the existence of a loss to him from the occurrence of an injury to it." And in section 80 the same author says: "Whoever may fairly be said to have a reasonable expectation of deriving pecuniary advantage from the preservation of the subject-matter of insurance, whether that advantage inures to him personally, or as the representative of the rights or interests of another, has an insurable interest.

That the person may suffer loss is a sufficient foundation for his claim to an insurable interest." Wherever property, either by force of law or by the contract of the parties, is so charged, pledged or hypothecated that it stands as a security for the payment of a debt or the performance of a legal duty, each of the parties- the owner of the lien, and the person against whose property it exists - has an insurable interest in the property. The one, that the security shall remain sufficient; the other, that it may be kept unimpaired and the property restored to his use or enjoyment in whole or in part, after the incumbrance is relieved. And each may insure his separate interest at one and the same time without incurring the imputation of double insurance, provided the applications and policies are the individual and separate acts of each. May Ins., $$ 80-87 inclusive; 1 Arnold Ins. *229 et seq.; Flanders Fire Ins. 342 et seq.; Columbia Ins. Co. v. Lawrence, 2 Pet. 25; Insurance Co. v. Stinson, 103 U. S. 25; 4 Field's Lawyers' Briefs, 282 et sq.; Traders' Ins. Co. v. Robert, 9 Wend. 404; Tyler v. Elna Fire Ins. Co., 12 Wend. 507; Cone v. Niagara Ins. Co., 60 N. Y. 619; Sturm v. Atlantic Mut. Ins. Co., 63 N. Y. 77; Har