New York Board of Fire Underwriters v. Metropolitan Lloyds

Upon a careful examination of the questions raised by the demurrer in this case, I have come to the conclusion that I would not be justified in rejecting the complaint as insufficient, although it rests quite upon the border line. If the statute upon which the plaintiff relies for his cause of action is a private act, it certainly has not been properly pleaded under section 530 of the Code of Civil Procedure, which requires the title of the act to be set forth, as well as its chapter and year of passage, where that form of pleading is resorted to. I am, however, inclined to the view that the act in question is a public act; at least so far as the portions of it upon which the cause of action rests are concerned. It is, at times, difficult to determine in which category a particular statute falls. Abbott, in his Law Dictionary, defines a private act to be “an enactment which does not affect the public at large, but bears upon individuals only; such as. an act settling the title to or authorizing the sale of a particular parcel of land; an act allowing a person’s claim against government and directing payment.” Sedgwick, in his work on Statutory Construction, says: “In this country the disposition has been, on the whole, to enlarge the limits of the class of public acts, and to bring within it all enactments of a general character, or which in any way affect the community at large.” This disposition is illustrated by the remark of the chancellor in the case of Bank v. Smedes, 3 Cow. 662 , in which he says that he is not prepared to admit that “a law incorporating a bank, without declaring the law to be a public statute, is a private act, which must be recited in every suit against the corporation. These institutions,” he remarks, “are public in their nature and character, and their operations affect the whole community.” It is also a recognized principle that a private act, which

The difficulty the defendant’s counsel seems to find in determining who are the other organizations and agencies referred to in section 8 of the act as “hereinbefore mentioned” is solved, I think, by the first sentence of the section, which mentions, among those who are entitled to attend the plaintiff’s biennial meeting, incorporated insurance companies or associations doing business in the city of New York, whose officers or agents are not members of the plaintiff corporation. It is the evident intention of the act that the right to participate in the meeting, which is to determine whether the fire patrol shall be continued, shall be enjoyed by all who are subject to assessment for its maintenance. It would also seem clear that the word “association,” as used in the section, imports an unincorporated body, because we find in the following section the same word evidently used to denote something different from a corporation.

Upon the question of the constitutionality of the act, I am of the opinion that the objection raised is hardly tenable. The legislature has the power to regulate the insurance business. In fact it has done so by adopting a voluminous law upon the subject, and providing for state supervision. The provision, in the act under discussion, for an assessment upon those engaged in the business in this city for the support of fire patrol, in proportion to premiums received, may- well be sustained in view of the public nature of the service rendered, and the great and peculiar benefit received from it by insurers whose losses upon policies are largely reduced by its efficiency. At all events, I should not undertake at special term to pronounce the act to be unconstitutional without much plainer evidence of the fact than I find to exist.