37 N.Y.S. 712 | N.Y. App. Div. | 1896
. The action is brought pursuant to chapter 846 of the Laws of 1861, to recover a certain assessment levied upon the premiums received by the defendants for insurance issued in the city of New
As to the first ground of demurrer, the questions raised upon it,' with one exception, have been disposed of by the case of this plaintiff against the Metropolitan Lloyds of New York city, reported in 11 Misc. Rep. 646. This decision was affirmed by the General. Term without opinion. (87 Hun, 619.) That case differs from this in only one respect, which is entirely unimportant. In the complaint in that case the statute under which the plaintiff was organized and by which the liability sued upon was created, was not pleaded. Here it is pleaded. But the distinction is of no importance for the purposes of this demurrer. So far as the questions presented were passed upon by the court in that case, it is authoritative and must be held to sustain the complaint here. In that case, however, at the Special Term, the court declined, for reasons which were sufficient, to pass upon the constitutionality of the statute under which the plaintiff was created, and by which the liabilities sought to be enforced in that action, as in this, were brought into existence. The General Term in the exercise of a wise discretion, thought it was advisable to affirm the judgment without passing upon that question. But in view of the fact that numerous actions have been commenced since that time to enforce the same liability, three of which have been presented to us at this time, it has been thought best to examine the question of constitutionality and to decide it.
The act in question is chapter 846 of .the Laws of 1867, entitled “ An act to incorporate the New York Board of Fire Underwriters.” By the 1st section a large number of officers of different fire insurance companies and associations “ and all other persons, the presidents or other officers for the time being of any incorporated'company or associations, and any agent doing the business of fire insurance in the city of New York, who may become associated with them, are hereby created a body corporate by the name of The
The first objection to the constitutionality of the act, is that being a private and local act it contains more than one subject and the subject'is not sufficiently expressed in the title. That this act is a private and local act must be conceded. (People ex rel. Lee v. Supervisors of Chautauqua, 43 N. Y. 10.) The fact that certain provisions of the act may be public in their nature does not make the whole act public so that ft ceases to be jwithin the article of the Constitution mentioned above. The title of the act has been quoted above. It is certainly germane, so far as it goes, to the object for which the act was passed, and we think within rules which are now well settled it complies with the requirements of the Constitution. The rule now as settled is that where the title of a local or private act expresses a general purpose or object, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment are proper to be incorporated in the act and are germane to the title. (People ex rel. City of Rochester v. Briggs, 50 N. Y. 553; Matter of Knaust, 101 id. 189; Sweet v. City of Syracuse, 129 id. 316, 330.) Thé objection referred to we think is clearly not well taken.
But a further objection is suggested which requires more examination. It is claiméd that the provisions of this act are such as in effect to authorize the corporation created by it to levy a tax upon the premiums received by persons engaged in the business of insurance in the city of New York, whether they are members of the ■corporation, or not, and that this is 'substantially .taking private property without' due process of law, and that'the power to do it neither exists in the Legislature nor can be. delegated by it. Undoubtedly, if the conclusion drawn from the provisions of this .act is correct, the act Violates the Constitution and is invalid, but we
The question then is presented what constitutes a public interest in any business, which will authorize the State .to make regulations concerning it.' This question was considered at large in the case of Munn v. Illinois, cited above. The chief justice in delivering the opinion of the court in that case, says : Under the police power “ the government regulates the conduct of its citizens, one towards another and the manner in which each shall use his own property, when such regulation becomes necessary for the public good.” And lie says that under that power it has, been customary from time immemorial in England and in this country to regulate ferries, common carriers, hackmen, bakers, millers, innkeepers and people exercising business of that nature.
It is said that property becomes clothed with a public interest when used in a manner to make it of public consequence,- and . affect the community at large. Many cases and instances are cited in the prevailing opinion in that case, in which the legislature in various States has regulated the conduct of business of different kinds, all of which have been sustained upon the ground that the business was one which affected public interest and, therefore, was amenable to control by the public authorities. The question of the power of the State to regulate business has been presented in many cases in this State, and the case of Munn v. Illinois (supra) has been ■ followed as laying down the true rule under which the exercise of police power could be sustained. (People v. Budd, 117 N. Y. 1, and cases cited; People v. King, 110 id. 418.) The question of the extent of the police power is considered fully by .Judge Cooley in-his learned work on Constitutional Limitations, and he comes to the conclusion that any property or business which is affected with .the public interest is amenable to the police power of the State, and that any business is said to be affected with the public interest where either the following of it was not as of right, but was permitted by the State as a privilege or franchise, or where exclusive privileges are.
The act in question authorizes this corporation to establish a fire patrol, having for its object to preserve life and 2>i’Of>erty at and after a fire, and to enable the patrol so organized to act with promptness and efficiency, certain powers almost public in their nature are given to them. It will be seen at once that this 2>atrol may render great service to persons authorized to pursue the business of insurance within this city where the powers of the patrol are to be exercised. It is a valuable adjunct to this business, and one which might well be created by the j3t.ate as a means of benefit, not only to citizens, but to those 2>ersons who have contracted to furnish indemnity to citizens in case of the destruction of their property by fire.
The act requires all 23ersons who are engaged in the business of insurance in .the city of New York to render to the corporation organized by it a return of the amount of premiums received by them during certain months of the year, and authorizes the coloration to charge upon all persons engaged in that business such sum as may be neces
■ Within the principles laid down above we think the power of the Legislature to impose upon persons authorized to issue insurance in this city the duty of taking this step to preserve life and property at fires, cannot be questioned. These persons have the exclusive ' privilege of entering into such contracts. The nature of the contract is one which renders it peculiarly proper that they should not only have the privilege, but be charged with the duty, of protecting property and life also when in danger from conflagrations. We think there can be no; doubt that this duty may properly be imposed upon them and that they may be required to pay the expenses of it.. For these reasons the act, in our judgment, is constitutional, and as it is so, it creates a good cause of action, and a complaint brought under it, if otherwise based upon’ the proper facts, does state facts sufficient to constitute a cause of action and is not demurrable.
For the reasons above given we think this complaint is good, and the judgment overruling the demurrer should be affirm'ed, with costs.
Judgment affirmed, with costs, with leave to the appellant to withdraw the demurrer in twenty days and answer, on payment of the cósts in this court, and of the costs in the court below.
Van Brunt, P. J., Barrett and O’Brien, JJ., concurred.
Judgment affirmed, with costs, with leave to appellant to withdraw demurrer in twenty days and answer, on payment of costs in this court and in the court below.