either renewing them in companies represented by them or making application to Runk & Co. for the renewals in companies represented by that firm. The commission of Henderson Bros. when renewing in a company represented by them, was paid by their company, and when renewed by Runk & Co. was paid by that firm.

It is clear that Runk & Co. can in no sense be deemed the agents of plaintiff. They were insurance agents representing certain insurance companies, and applications were made to them by Henderson Bros., as the agents of such companies; and, whatever relation Henderson Bros. may have sustained to the plaintiff, it is certain under the evidence that Runk & Co. did not sustain the relation of agents of the plaintiff in this transaction, and had no authority to bind the plaintiff by any application they might make to Phelon for a policy. The case of Insurance Co. v. Ives, 56 Ill. 402, before cited, being quite analogous to the case at bar, we feel justified in quoting more at large from the opinion of the court in that case. In that case one Holmes, a local insurance agent, had placed a certain amount of insurance on the property of Ives & Co. in a company represented by him, and, being applied to for additional insurance on the property, he wrote to the agent of the Commercial Insurance Company for this additional insurance, obtained it upon an application signed by himself in the name of Ives & Co., delivered the policy to them, and collected the premium, which he forwarded to the agent of the insurance company. There were, as in the case at bar, certain stipulations in the application held to be warranties, and the question was whether or not he was the agent of Ives & Co., and whether or not the warranty in the application was binding upon Ives & Co. The policy contained a stipulation making all persons procuring the policy agents of the insured, as shown by the portions of the opinion before quoted.

The court, in its opinion, says: "Had Holmes really been employed by the assured as their agent to get these premises insured for them, we do not say that he would not have had an implied authority to sign their names to the customary appli

cation, as being a necessary and proper means for effecting the insurance; but here the testimony was that Holmes was in the insurance business at El Paso. We suppose this to import that he was the agent of some one or more insurance companies, to act for them in making insurance, and not that he was the agent of applicants for insurance to obtain insurance for them. And it is not to be admitted that when an application is made to such a representative of an insurance company for insurance he is thereby constituted an agent of the applicant to make an application for him in writing, and sign his name to it, whereby the assured can be charged as upon an express warranty of the truth of the statements contained in it. It was for the jury to say whether the appellees did not rather apply to Holmes, as an insurance agent, to be insured, than to act for them, as their agent, to get them insured." In that case the facts seem to have been submitted to a jury under the rule, we presume, that in cases of conflicting evidence, or where the evidence is such that different minds might draw different conclusions therefrom, the question should be submitted to the jury. But where, as in the case at bar, the evidence was undisputed, and only one conclusion could be drawn from it, the court very properly determined the question as one of law, and withdrew it from the jury. Railway Co. v. Stout, 17 Wall, 663; Williams v. Railroad Co., (Dak.) 14 N. W. Rep. 97; Mares v. Railroad Co., (Dak.) 21 N. W. Rep. 5; Loudon, etc., Soc. v. Hagerstown Sav. Bank, 36 Pa. St. 498. But it is contended by appellant that, as the policy was issued upon the warranty contained in the application, if plaintiff is not bound by the warranty, then the policy should be held void as being obtained by fraud. We cannot so hold. The application was signed by Runk & Co. in their firm name. They did not assume to act as the agents of plaintiff, or make the application in its name. The application is precisely what it purports to be,-the application of Runk & Co. Phelon, when he issued the policy, knew precisely what he was issuing it upon; and the defendant, when it was received at the home office, had before it an application showing upon its face exactly what it was upon which

the policy was issued.

There was no fraud and no deception on the part of Runk & Co. If Phelon, the general agent, of defendant, was not satisfied to issue the policy upon the application signed by Runk & Co., he could have refused to issue it until an application properly made and signed by the plaintiff was furnished him; but, having elected to issue the policy upon this application of Runk & Co., the defendant is bound by it, though the plaintiff is not bound by the application. The defendant, when the application was received, and it saw what it was, could have canceled the policy, and returned the premium before a loss. Hence no injustice will be done by holding the policy good when the loss occurred nearly three months after the issue of the policy. Section 4157, Comp. Laws, is as follows: "Every express warranty, made at or before the execution of a policy, must be contained in the policy itself, or in another instrument signed by the insured and referred to in the policy, as making a part of it." The defendant and Phelon, its general agent, must be presumed to have known that no application containing a warranty was binding upon the plaintiff unless it was signed by plaintiff or by its authorized agent in its name. The defendant having, therefore, by its duly au thorized agent, issued the policy in controversy without the written application of plaintiff, cannot, after a loss, avoid the policy, or be relieved from the obligation it has assumed.

3. This brings us to the last question presented, and that is, did the court properly instruct the jury upon the question submitted to it, namely, the payment of the premium? That the premium was paid by plaintiff to Henderson Bros., and by them remitted to Runk & Co., from whom they received the policy, less their commission of 15 per cent., is not disputed. But it is contended by the appellant that Runk & Co. were the agents of plaintiff, and that, as they did not, as a matter of fact, pay it over to Phelon, but only credited him with it, it never was paid to defendant, and the policy is for that reason invalid. We cannot assent to this proposition. As before stated, the evidence fails to show that Runk & Co. were the agents of plaintiff,—or at least a jury was justified in so find

ing, but were, as to the delivery of the policy and the receipt of the premium, the agents of defendant. Phelon, by his course of business with Runk & Co., made that firm the agents of defendant to the extent at least of authorizing them as its agents to deliver the policy and collect the premium. An insurance agent is authorized to appoint sub-agents for the delivery of policies and receiving the premium. Bodine v. Insurance Co., 51 N. Y. 117; Insurance Co. Fahrenkrug, 68 Ill. 463; Mayer v. Insurance Co., 38 Iowa, 304; May, Ins. p. 177. We do not deem it necessary to discuss the separate exceptions to the charge of the court, as they are based mainly upon the theory of the case contended for by appellant, and, as we have considered the case upon the respective theories of counsel for the respective parties, it would only be a repetition to consider them further. We are of the opinion that the charge of the court fully and fairly presented the case to the jury. Finding no error in the record, the judgment of the court below is affirmed.

BENNETT, J., concurring.

KELLAM. J., not sitting in the

case, or taking any part in the decision.

Reporter: A rehearing was granted in this case May 28, 1891. Upon the rehearing the court adhered to the views expressed in the foregoing opinion.

1. When a party assails the constitutionality of an act, he must show beyond reasonable doubt that it is in violation of the fundamental law of our government. Every presumption is in favor of the validity of a legislative enactment, and it is for the attacking party to show that his rights are irvaded by that act, and that it does not come within the legitimate exercise of the lawmaking power, under the constitution.

2. The object of Section 21 of Article 3 of the constitution of the state, which provides that "no law shall embrace more than one subject, which shall be expressed in its title," was to prevent the bringing together in one act subjects having no necessary connection or relation

with each other, and to guard the legislatures and communities affected by the law against surprise and imposition; and it is mandatory,―a direct, positive, and imperative limitation upon the legislature.

3. This action of the constitution was not intended to embarrass the legislature in the legitimate exercise of its powers by compelling a needless multiplication of bills designed to meet the same object. A liberal interpretation and construction should be given it by the courts so as not to cripple or limit legislative enactments any further than is necessary for the requirements of the law. The ground that an act embraces more than one subject, and that it was not sufficiently expressed in its title, should be grave, and the conflict between the statute and constitution plain and manifest, before courts will be justified in declaring it unconstitutional and void.

4. When the title of a legislative act expresses a general subject or purpose which is single, all matters which are naturally and reasonably included in it, and all measures which will or may facilitate the accomplishment of the purpose, are germane to its title. The title must express the subject comprehensively enough to include all the provisions in the body of the act. It need not index all its details, but it should indicate the purpose of the legislature in the enactment.

5. A portion of a statute may be unconstitutional and stricken out, and if that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, the statute must be sustained.

6. If, upon examination, the general meaning and object of the statute be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to that purpose.

7. Mercantile or commercial agencies are not such legitimate and useful instruments of commerce or commercial intercourse as to put them exclusively under the regulation of congress, and free from state control, and a legislative enactment providing for the organization of such companies, and the regulation of their business within the limits of the state, is not an interference with interstate commerce, and is not void because in violation of the commerce clause of Section 8, of Article 1 of the constitution of the United States.

(Syllabus by the Court. Opinion filed March 19, 1891.)

Error to McCook county court.

Information charging the plaintiff in error with a violation of the provisions of Chapter 54 of the Laws of South Dakota of 1890. Verdict of guilty rendered and judgment thereupon entered. Defendant brings error to this court. VOL. 2, S. D.- -3.

Affirmed.