Commonwealth v. Nutting
| Decision Date | 04 January 1900 |
| Citation | 175 Mass. 154,55 N.E. 895 |
| Parties | COMMONWEALTH v. NUTTING. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M. J. Sughrue, Asst. Dist. Atty., for the Commonwealth.
Carver & Blodgett and Esek Cowen, for defendant.
The defendant is indicted for acting in the negotiation and transaction of unlawful insurance by negotiating in Boston, with foreign insurers not admitted to do insurance business in this commonwealth, and procuring, a policy of insurance upon a vessel in Boston, to be issued by them. The agreed facts sustain the indictment, subject to certain questions which are brought before us by exceptions to a ruling that the facts warranted the jury in finding the defendant guilty, and to the refusal of several requests which need not be mentioned in detail.
The foundation of the defendant's argument is the decision in Allgeyer v. State of Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832. 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 intimation, 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 Allgeyer v. Louisiana, 165 U.S. 591, 17 S.Ct. 427 41 L.Ed. 832; City of Leavenworth v. Booth, 15 Kan 627, 634. One main object in imposing such conditions in this commonwealth is to secure people against fraudulent or worthless contracts, and, in case of litigation, to save them from having to go abroad. See Lamb v. Lamb, 6 Biss. 420, 422, Fed. Cas. No. 8,018. We assume, until it is decided otherwise, that the power to enforce these objects will be regarded as too important and substantial to be defeated by a device, even though the device, apart from its purpose, would only embody a commonlaw right. We are of opinion, therefore, that, notwithstanding the right of McKie, if so minded, to apply from Boston to the London Lloyd's for...
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