117 N.Y.S. 21 | N.Y. App. Div. | 1909
On the :27th day of June, 1907, one Ferrara was engaged in the selling of steamship tickets for transportation to foreign countries,
W,e are of opinion that chapter 185 of the Laws of 1907 is not unconstitutional, either as an unjustifiable, interference with the rights of citizens or as class legislation, and. that the complaint states a good cause of action and that the answer pleads no defense.
The act provides that all persons engaged in the selling of steam
It will be observed that the law does not prohibit any person from engaging in the business of selling steamship or railroad tickets to or from foreign countries, and that no bond is required of one who is engaged in that business alone. When, however, a person desires to add to such business that of receiving money for transmission to foreign countries, or a virtual banking business, the law requires that he shall give a bond for the faithful discharge; of his obligations in connection therewith. The- law does not operate- as a prohibition against any person engaging in the business of transmitting money to foreign countries. It merely regulates the carrying on of that business by guarding, in the form of a bond* against imposition, fraud and -embezzlement. Such a regulation seems to us a very wholesome' one and one clearly within the power of the Legislature to establish. As a general proposition, of course, a citizen has the right to; carry on any lawful business in any lawful way, without legislative interference; but under the police power, the Legislature has the right, to enact laws tending toward the public welfare or toward the prevention or suppression of fraud. The Legislature could well take notice of the frequent embezzlements and misappropriations; . by transatlantic ticket agents of funds. intrusted to them for transmission by their fellow-countrymen* and
In principle we see no difference between the present case and 'that of People ex rel. Armstrong v. Warden, etc. (183 N. Y. 223), where a law requiring one conducting an employment agency in cities of the first and second class to take ¿ut a license and pay twenty-five dollars annually therefor, under pain of being guilty of a misdemeanor, was held constitutional and a proper legislative regulation of a business in which fraud and imposition were likely to occur. The conducting of an employment agency is a perfectly legitimate and lawful business in which any one may engage, but nevertheless, it was deemed to be one so open to fraud that legislative restriction requiring the obtaining of a license was legitimate and pi’oper. So, too, the engaging in the business of transmitting money to foreign countries by one who.sells tickets for transportation to foreign countries is a legitimate and lawful business, but is one so open to fraud and the commission of crime that legislative restriction requiring the giving of a bond comes within the lawful powers of the Legislature.
Nor in our opinion is the law unconstitutional because transatlantic steamship companies and their agents and National and State banks and trust companies are exempted from giving the bond when issuing drafts, money orders and travelers’ cheeks. National banks are regulated by Federal laws, and State banks and trust companies by laws of the State, all tending to insure honest dealing with custopaers and safety in money transactions. A.transatlantic steamship company necessarily has large capital invested and large assets, and for certain kinds of contracts is, under the Maritime Law, under stringent liability. The Legislature had the right to say that National and State banks and trust companies and transatlantic steamship companies needed no further regulation for the purpose of guarding against fraud and embezzlement. It might have been
The respondent insists that the case of People ex rel. Tyroler v. Warden of Prison (157 N. Y. 116) is controlling upon us and conclusive as to the unconstitutionality of the law.- We think otherwise. In that case, chapter 506 of the Laws of 1897, which prohibited the selling of tickets for passage on vessels or railroad trains by any person except common carriers and their specially authorized agents, was held to transcend the police power and to be unconstitutional. . The law there under consideration prohibited entirely the business of selling tickets. The law of 1907 does not prohibit the carrying bn of the business of receiving deposits of money for the purpose of transmitting the same to a foreign coun
We have assumed that steamship companies and their agents and National and State banks and trust companies are actually excepted by the law under consideration. If it is necessary, however, to point out any distinction, it will be observed that drafts, money orders and travelers’ checks only are excepted, and not the general business of receiving deposits of money for the purpose of transmitting the same or its equivalent to foreign countries, which is specified in the body of the law. The buying of a draft or money order is not, strictly speaking, the same as receiving money for transmission! The actual money can be shipped to its destination, or, for his own convenience, the person receiving the deposit can buy a bill of exchange or draft, as he sees fit. Technically speaking, there is a marked distinction between issuing a draft or traveler’s check and receiving money for transmission, but interpreting the law as applying to the same thing in both instances, we do not think the exemption is fatal.
The respondent also relies upon People ex rel. Valentine v. Berrien Circuit Judge (124 Mich. 664; 83 N. W. Rep. 594), decided by the Supreme Court of Michigan. Even though that case be directly in point, it can only be said that, however great our respect for any decision of that court may be, we do not feel justified in following it in the present instance.
The complaint alleges that the bond was given in pursuance of the statute, and nothing is disclosed in the pleadings as to whether or not the defendant voluntarily executed the bond in behalf of its principal, or whether it did so for a consideration. If Ferrara desired to comply with the law, whether it was constitutional or unconstitutional, and for that purpose applied to the defendant to execute the bond and paid it a consideration therefor, there might be a very grave question as to whether, the defendant was in a position to take advantage of its unconstitutionality if it were unconstitutional. In view of these facts not appearing, however, in the pleading, that question is not before us.
The law in our opinion being constitutional, it follows that the
Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred. .
Judgment revérsed,. with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs.'