175 Mass. 154 | Mass. | 1900
The defendant is indicted for acting in the negotiation and transaction of unlawful insurance by negotiating
The foundation of the defendant’s argument is the decision in Allgeyer v. Louisiana, 165 U. S. 578. That was a proceeding by the State to recover a penalty for violating a State law intended to prevent dealing with any marine insurance company that had not complied with the law. The defendants were the parties insured. The policy, an open one, was issued outside the State, and the only act done within the State was the mailing of a letter describing certain cotton to which the defendants desired the policy to attach. But the court intimate somewhat broadly that a State legislature cannot make it unlawful for a man to make a contract of insurance outside the State, although he resides and is present in the State at the time when the contract is made. It now is contended that, if this is so, it cannot be unlawful for another man to obey a request to get such insurance, if made by the one who wants it, and that the contract in the present case was made outside the Commonwealth, on principles which cannot be affected by St. 1894, c. 522, § 3. It might be argued further that at the least this was not unlawful insurance, and so that this particular indictment fails, whether the defendant had done a punishable act or not.
We bow to the decision, and even to the intimations of the case cited, without criticism. But that case expressly leaves intact the settled power of the State to impose such conditions as it pleases upon the doing of any business by foreign insurance companies within its borders. Although the reasoning of many of the cases turns on the fact that such companies are corporations, we apprehend that the power is not dependent upon that fact, but is an unsurrendered portion of the State’s general right to legislate. See 165 U. S. 591; Leavenworth v. Booth, 15 Kans. 627, 634. One main object in imposing such conditions in this Commonwealth is to secure people against frauda
What the Legislature can do it has done by St. 1894, c. 522.' By § 3, “ it shall be unlawful . .•. for any person as insurance agent or insurance broker to.make, negotiate, solicit, or in any manner aid in the transaction of ” insurance upon any property or interests in this Commonwealth or with any resident thereof, except as authorized by the act. By § 98, “ any person . . . who shall act in any manner in the negotiation or transaction of unlawful insurance with a foreign insurance company not admitted to do business in this Commonwealth or who as principal or agent shall violate any provision of this act in regard to the negotiation or effecting of contracts of insurance ” is subjected to a penalty.
Whether the description of the insurance in the indictment as unlawful be rejected as surpl usage, or whether the insurance be