191 CANTY, J. This case was argued and decided in favor of appellant at the last term of this court. It having been then suggested that the laws of 1889, chapter 217, which provides for the preparation and adoption of the "Minnesota standard policy," was unconstitutional, for the reason that it attempted to delegate legislative powers to the insurance commissioner, a motion for reargument was made, on the ground of such unconstitutionality, the motion was granted, and the case has since been reargued.

192 Since the granting of the motion for reargument, the supreme court of Pennsylvania has declared a somewhat similar statute unconstitutional, as being an attempted delegation of legislative power: See O'Neil v. American etc. Ins. Co., 166 Pa. St. 72; 45 Am. St. Rep. 650. It is now conceded by appellant that, if the Minnesota statute is the same as that of Pennsylvania, it would be unconstitutional. But, while the statute of Pennsylvania attempted to give the insurance commissioner power to adopt, as the standard policy, any form of insurance contract he saw fit, it is claimed that the Minnesota statute requires the insurance commissioner to adopt the New York standard policy, and gives him no discretion, as to the substance of the contract to be so adopted, and that, therefore, there was no such attempt to delegate legislative power to him. So far as it is necessary here to consider chapter 217 of the laws of 1889, it reads as follows:

"Section 1. The insurance commissioner shall prepare and file in his office on or before the first (1st) day of August, A. D. eighteen hundred and eighty-nine (1889), a printed form in blank of a contract or policy of fire insurance, together with such provisions, agreements, or conditions as may be indorsed thereon, or added thereto, and form a part of such contract or policy, and such form, when so filed, shall be known and designated as the Minnesota Standard Policy. Said insurance commissioner shall, within sixty (60) days from the passage of this act prepare, approve, and adopt a printed form in blank of a contract or policy of fire insurance, together with such provisions, agreements, and conditions as may be indorsed thereon, or added thereto and form a part of such contract or policy, and such form shall, as near as the same can be made applicable, conform to the type and form of the New York Standard Fire Insurance Policy, so called and known. Provided, however, that five (5) days' notice of cancellation by the company shall be given, and provided that proof of loss shall be made within sixty (60) days after a fire.

AM. ST. REP., VOL. L.-26

"Sec. 2. The insurance commissioner may call upon the attor ney general for such assistance as to him may seem necessary in the preparation of the aforesaid standard insurance policy, and it is hereby made the duty of said attorney general to per form such service."

193 "Sec. 4. On and after the first (1st) day of January, A. D. eighteen hundred and ninety (1890), no fire insurance company, corporation, or association, their officers or agents, shall make, issue, use, or deliver for use, any fire insurance policy, or renewal of any fire policy, on property in this state, other than such as shall conform, in all particulars as to blanks, size of type, context, provisions, agreements, and conditions, with the printed form of contract or policy so filed in the office of the insurance commissioner, as provided for in the first (1st) section of this act, and no other or different provision, agreement, condition, or clause shall, in any manner, be made a part of said contract or policy, or be indorsed thereon or delivered therewith, except as follows, to wit."

Then follow provisions which authorize the insertion in the insurance policy of matters of description, and other particulars and provisions peculiar to the particular insurance company or the particular risk, and not inconsistent with the provisions or conditions of the standard policy. It is contended, in substance, that all of this statute above quoted which provides for the preparation and adoption of a standard form is surplusage, except the part of the laws of 1889, chapter 217, section 1, which provides that "such form shall, as near as the same can be made applicable, conform to the type and form of New York Standard Fire Insurance Policy, so called and known."

If this contention is correct, why were the provisions inserted, which immediately follow this, and require five days' notice of cancellation by the company, and provide for sixty days in which to make proof of loss? It is conceded by counsel for appellant that these identical provisions were in the New York standard form when this act was passed. If the legislature intended to require all of the provisions of that form to be adopted, why did they thus specify only those two?

Again, if the insurance commissioner had no discretion, and was to act merely as a copyist of the New York form, why was it deemed necessary to provide for him the assistance of the attor ney general in his onerous duties of copying the same? Again, why should the words "provisions, agreements, and [or] conditions" occur so often in the statute where they are of no particular importance, and be left out in the very connection and very

place where they would be all-important? Again, the statute provides that "such 194 form shall, as near as the same can be made applicable, conform to the type and form of the New York 'standard.""

It is insisted that this authorizes only such changes as striking out the words "New York," and inserting "Minnesota," and that, for the purpose of permitting such changes, the words, "as near as the same can be made applicable," were used. There are no such changes to be made. The words "New York" do not occur in the provisions of the New York standard. There is not a word in the provisions of the New York form which it is necessary to change in order to apply the form to Minnesota. Then the legislature must, at least, have intended to give the insurance commissioner power to exercise his judgment in determining which of the provisions of the New York form were applicable to Minnesota, and which were not, and this would be an unconstitutional delegation of power. Conceding, without deciding, that this would be a proper way to make the New York form a part of the Minnesota statute, if the legislature intended to adopt the New York form, they could have said so in a very few words.

The words "type and form," above quoted, are written together in the same connection, and it is fair to presume that they both refer to matters of the same general kind; that is, to matters of form. Construing these words in connection with the other provisions of the statute, we are of the opinion that they are equivalent to "type and style," that the legislature intended to give the insurance commissioner power to insert in the standard form such provisions as he saw fit, and that, while it might be materially different from the New York form in substance, it should conform to it, as far as practicable, in the size and character of the type, and in the arrangement of provisions. The object of this was obviously to prevent the use of type so small and obscure, and the arrangement of provisions so misleading, that an ordinary man would not read these provisions, and, if he did, could not understand them.

Then the legislature attempted to clothe the insurance commissioner with power to enact a general law, prescribing what provisions and conditions should be inserted in a policy of insurance, and what should not. There was no reason why the legis lature could not pass this act as well as the commissioner. There may be 195 necessity for police regulation in the insurance business, for the protection of the insured and the insurer; and the regulation of many matters of detail, exceptional matters, and

matters which cannot well be regulated by the general provisions of law may, perhaps, be delegated to such a commissioner. But this is not such a matter. There is no necessity for changing, from time to time, between legislative sessions, the provisions which should be put in such a standard form, so as to meet changing conditions (see State v. Chicago etc. Ry. Co., 38 Minn. 301), and no such power was given to the commissioner. was to prepare and adopt a standard form, once for all, and, when so adopted, it was to remain irrevocable until changed by subsequent legislation. A clearer instance of an attempt to delegate legislative power could hardly be suggested.

As said in State v. Young, 29 Minn. 551: "It is a principle not questioned, that, except where authorized by the constitution, as in respect to municipalities, the legislature cannot delegate legislative power-cannot confer on any body or person the power to determine what shall be law. The legislature only must determine this." We are of the opinion that the laws of 1889, chapter 217, is unconstitutional and void, and therefore the provision of said statute prohibiting the parties from waiving any of the provisions of the standard policy has no effect, and does not prevent a parol waiver of the condition in the policy declaring such policy "void if the insured now has, or shall hereafter make or procure, any other contract of insurance." This being so, the contract of insurance is merely the voluntary contract of the parties, not restricted by any such statute; and, by delivering the policy here in question, knowing of the existence of other insurance on the property, the defendant waived this condition of its policy, and plaintiff is entitled to recover: Brandup v. St. Paul etc. Ins. Co., 27 Minn. 393; First Nat. Bank v. American Cent. Ins. Co., 58 Minn. 492; Lamberton v. Connecticut Fire Ins. Co., 39 Minn. 129.

This disposes of all the questions in the case, and the order appealed from is affirmed.

INSURANCE-LEGISLATURE-DELEGATION OF POWER.Whether the legislature may itself prescribe a form of contract of insurance or not, it cannot delegate the power to an insurance commissioner to prescribe a standard policy of insurance: O'Neil v. American etc. Ins. Co., 166 Pa. St. 72; 45 Am. St. Rep. 650, and note.

INSURANCE-PRIOR-VIOLATION OF CONDITION AGAINST ADDITIONAL.-If an agent knows of a prior insurance, which he mistakenly believes to have expired, and, acting under such belief, procures a second policy on the same property, which contains a condition that it shall be void if the insured "shall have any insurance on the property hereby insured, not indorsed, known, or consented to by this company, or its authorized agent, in writing, this policy shall be void," this pre-existing policy is a breach of the condition, and avoids the sec ond policy: Sanders v. Cooper, 115 N. Y. 279; 12 Am. St. Rep. 801.

GIBB v. PHILADELPHIA FIRE INSURANCE COMPANY.

[59 MINNESOTA, 267.]

INSURANCE, CHANGE OF INTEREST.-The sale of real property and the receipt of part of the purchase price, with an agreement, on completion and payment of the balance, that the purchaser should be entitled to possession until he made default in such payment, is such a change as renders void a pre-existing policy of insurance containing a stipulation that it shall become void if any change, other than by the death of the assured, shall take place in the interest, title, or possession of the property insured.

AN INSURER IS ENTITLED TO BE SULROGATED to the rights of a mortgagee on paying a policy of insurance in his favor, where such policy, as against the mortgagor, has become void because of a breach of some of the conditions thereof.

Kitchel, Cohn & Shaw, for the appellant.

Fred W. Reed, for the respondents.

272 CANTY, J. On February 29, 1892, the plaintiff Gibb was the owner in fee simple of the premises in question, subject to a mortgage of twelve hundred dollars, held by the plaintiff Hilles. On that day, defendant issued a policy of insurance in-suring Gibb to the amount of two thousand dollars, for three years from and after that day, against loss by fire to the buildings on the premises, loss, if any, payable to Hilles, as her interest may appear; but providing that if, in case of loss, the insurer is not liable to the mortgagor or owner, it shall be subrogated to the rights of the mortgagee under her mortgage, and upon paying the full amount due on the mortgage, shall receive an assignment of it. This mortgage clause also provided that the policy should not be invalidated as to the mortgagee by any act of the owner, or by any change in the title or ownership of the premises.

On February 28, 1893, there was a loss by fire amounting to fourteen hundred and sixty-two dollars and sixty-two cents. The plaintiffs brought this action to recover this loss. The case was tried by the court without a jury, and judgment was ordered in favor of Hilles for twelve hundred dollars, the amount of her mortgage, and in favor of Gibb for the balance of said amount of the loss. From the judgment entered thereon, defendant appeals.

The appellant concedes that the plaintiff Hilles is entitled to recover, but contends that a breach occurred, prior to the fire, which avoided the policy as to Gibb; that he is not entitled to recover; and that defendant is entitled, on payment to Hilles of the amount of her mortgage, to be subrogated to her rights under