Page images
PDF
EPUB
[blocks in formation]

dictment as a prerequisite basis for the exertion of the limited power to review the action of the court in interpreting the statute. Indeed, to follow the suggestion would be to frustrate the purposes which manifestly the jurisdictional act was enacted to accomplish; because the intent to expedite in criminal cases the decision of questions involving statutory construction which was plainly one of the ends for which the law was intended would be of little avail if the right to review be extended by implication so as to embrace cases not within the purview of the statute, thereby multiplying appeals and delaying the speedy decision of such cases. Besides, we think in consequence of the ambiguity of the ruling a case like this is not within the scope of the fundamental evil intended to be guarded against by the reviewing statute, that is, to afford a direct and immediate remedy to correct an erroneous construction of a statute before final judgment and thus to prevent the harm which otherwise might result by the application of the construction to other cases, if the power to review could only be exerted after final judgment.

To suggest that if the mere form in which a ruling is clothed be made the test of the power to review, it will result that the exertion of the authority may be rendered unavailing in every case is without foundation. It is not to be assumed that trial courts will not seek rightfully to discharge their duty. But, even if it were possible to indulge in such an assumption, to do so would disregard the power which exists as an incident to the exercise of appellate jurisdiction to compel, in a case which requires it, such action as will prevent a destruction of or render practically unavailing the reviewing power. There can be, however, no ground in this case for indulging the forebodings which we have just answered, because there is nothing in the record showing any request made to the trial court for an expression of opinion in such form as to manifest clearly whether its action proceeded upon a

[blocks in formation]

construction of the statute or merely upon the meaning which was given to the indictment. In saying this we are not unmindful of the fact that it is stated in the brief for the United States that when a bill of exceptions was after the trial presented to the court for settlement, a request was made and refused for a more specific statement of the reasons which led to the quashing of the counts of the indictment. But, obviously, the refusal to grant a request made at the time and under the circumstances stated affords no reason for an exertion of a power to review which we do not possess.

Dismissed for want of jurisdiction.

[blocks in formation]

No. 56. Argued November 11, 1913.-Decided December 15, 1913.

The sanction of the rule of stare decisis urges this court against reversing a long series of decisions where state legislation has been enacted in reliance thereon, and the reversal would involve the promulgation of a new rule of constitutional inhibition on state legislation necessitating readjustment of policy and laws.

After reviewing Paul v. Virginia, 8 Wall. 168, decided by this court in 1868, and other cases in which that case was followed, this court adheres to the decisions in those cases to the effect that the issuing of an insurance policy is not commerce but a personal contract, and that the regulations of a State in regard to policies delivered in the State by non-resident insurance corporations and taxes imposed on said corporations, are not, if otherwise legal, unconstitutional as a burden upon interstate commerce. The Lottery Cases, 188 U. S. 321, and International Textbook Co. v. Pigg, 217 U. S. 91, distinguished.

Argument for Plaintiff in Error.

231 U.S.

The fact that there are great numbers of transactions therein does not give to a business any other character than magnitude; it cannot transform a business from one which is subject to state regulation to one beyond that regulation as interstate. The fact that the mails are used in consummating contracts for insurance between a corporation in one State and the insured in another, does not give character to the negotiations or the contract nor does it make the latter interstate commerce.

The fact that after the insured receives his policy of insurance it becomes subject to sale and transfer, does not make the business of issuing it commerce.

The statute of Montana imposing a tax on insurance corporations doing business in the State measured by the excess of premiums received over losses and expenses incurred within the State, is not unconstitutional as a burden on, or interference with, interstate

commerce.

43 Montana 243, affirmed.

THE facts, which involve the constitutionality of a statute of Montana imposing certain taxes on insurance corporations, are stated in the opinion.

Mr. James H. McIntosh and Mr. Roscoe Pound, with whom Mr. Robert L. Clinton was on the brief, for plaintiff in error:

In this case the issue differs from prior insurance cases such as Church v. La Fayette &c. Co., 66 N. Y. 22; Ducat v. Chicago, 10 Wall. 410; Hooper v. California, 155 U. S. 648; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; New York Mutual v. Armstrong, 117 U. S. 591; New York Life v. Cravens, 178 U. S. 389; Noble v. Mitchell, 164 U. S. 367; Nutting v. Massachusetts, 183 U. S. 552; Paul v. Virginia, 8 Wall. 168; Phila. Fire Ass'n v. New York, 119 U. S. 110; Swift v. United States, 196 U. S. 375.

The issue here also differs from those in cases involving labor or emigration agencies, bucket shops, and private banks. Engle v. O'Malley, 219 U. S. 128; Ware v. Mobile Co., 209 U. S. 405; Williams v. Fear, 179 U. S. 270.

231 U. S.

Argument for Plaintiff in Error.

In this case the course of the company's business is within the very object of the commerce clause. Bancroft, History &c. of Constitution, chapter IV; Bryce, Studies in Hist. and Jurisprudence, 222; City v. Royal Exchange &c., 5 Ala. App. 318; Farrand, Records of Federal Constitution, I, 243, 247, 275, 496, 501, 546; III, 666.

The course of business here is within International Text Book Co. v. Pigg, 217 U. S. 91, and the Lottery Case, 188 U. S. 321. See also Hoke v. United States, 227 U. S. 308; Kidd v. Pearson, 128 U. S. 1; McCall v. California, 136 U. S. 104; Pensacola Tel. Co. v. West. Un. Tel. Co., 96 U. S. 1; Richmond v. So. Bell Tel. Co., 174 U. S. 761; Robbins v. Shelby Co., 120 U. S. 489; West. Un. Tel. Co. v. Pendleton, 122 U. S. 347.

If Paul v. Virginia, 8 Wall. 168, is decisive of this case, then it is also decisive against the court's decision in International Text Book and Lottery Cases, supra. Hooper v. California, 155 U. S. 684; New York Life v. Babcock, 104 Georgia, 67; Xenos v. Wickham, L. R. 2 H. L. 296.

The company's business as performed by it is interstate commerce within all the decisions of the court and not in conflict with any decision. Cases supra and see also Adair v. United States, 208 U. S. 176; Addyston Pipe &c. Co. v. United States, 175 U. S. 211; Butler Bros. v. United States, 156 Fed. Rep. 1; Covington Bridge v. Kentucky, 154 U. S. 204; Gibbons v. Ogden, 9 Wheat. 1; Hopkins v. United States, 171 U. S. 278; New York v. Miln, 11 Pet. 102; Railroad Co. v. Husen, 95 U. S. 465; Welton v. Missouri, 91 U. S. 275.

The object and purpose of the commerce clause sustains plaintiff's claim. 1 Hamilton, Works, 179, 203; Henderson v. Mayer, 92 U. S. 259; Howard v. Ill. Central, 207 U. S. 463; 2 Madison, Papers, 859; Ratterman v. Western Union, 127 U. S. 411; Report of Com. on Ins., 29 Am. Bar Ass'n, 557; South Carolina v. Georgia, 93 U. S. 4; 1 Wilson, Works, 335.

VOL. CCXXXI-32

[blocks in formation]

Writers on constitutional law criticise the interpretation of Paul v. Virginia, supra, except as limited to the facts before the court in that case. Innes, Insurance in its Relation to Commerce &c., 39 Am. Law Rep. 717; Prentice & Egan, The Commerce Clause &c. 46; Report of Com. on Am. Bar Ass'n, 29 Am. Bar Ass'n, 538; 1 Watson, The Constitution, 520-521; 2 Willoughby, The Constitution, §§ 294, 296.

The tax is void. Hall v. De Cuir, 95 U. S. 485; Inter. Text Book Co. v. Pigg, 217 U. S. 91; Robbins v. Shelby Taxing Dist., 120 U. S. 489.

The laws of Montana prescribe procedure which has been followed here. Section 2742, Revised Codes Mont.

Mr. D. M. Kelley, with whom Mr. Albert J. Galen, Attorney General of the State of Montana, and Mr. W. H. Poorman were on the brief, for defendant in error.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Plaintiff in error, called herein plaintiff as it was such in the courts below, brought suit against the defendant in error, herein called defendant, to recover the sum of $209.79, with interest, the amount of taxes paid by plaintiff under protest to defendant.

The tax was levied under a law of the State requiring every insurance corporation or company transacting business in the State to be taxed upon the excess of premiums received over losses and ordinary expenses incurred within the State during the year previous to the year of listing in the county where the agent conducts the business, properly proportioned by the corporation or company at the same rate that all other personal property is taxed. It is provided that the agent shall render the list, and if he refuses, or to make affidavit that the same is correct to the best of his knowledge and belief, the amount may

« PreviousContinue »