The Newark star and Newark advertiser. [volume] (Newark, N.J.) 1909-1909, 1909-07-09
Dissenting View in Combine
Decision Filed in Errors
and Appeals Court.
SEES NO VIOLATION
IN RATES AGREEMENT
Points Out That Companies
Take Own Risks-Refers to
Lack of State Legislation.

A dissenting opinion has been filed
by Justice Francis J. Swayze in the
Court OF Errors and Appeals in the
rase OF the-attorney general against
the Newark Fire Insurar ce Exchange.
which was recently held by the court
to be combination in restraint of
trade.
Justice Swayze's opinion is impor-
tant. rs IL shows the insurance mems
side of the legal technicalities involved
In the long fight. The case is now
hanging fire on the appeal of Richard
v. Lindabury, counsel for the exchange
for a rehearing.
Justice Swayze says IL part:
I'm ordinary cases little good is done
by an expression of the reasons for
dissent, but when the principle involved
is fundamental 1t is public duty to
protest in the hope that the logical
consequences may not lead us too far
Lefore we are aware of the direction in
winch we are travelling.
THE opinion rests for its funda-
mental proposition not upon the basis
cf virtual monopoly, but upon the idea
that when the public interest is served
by the conduct of any business, and
that. business has become large and
successful, the public may at once in
tervene. l have never before heard it
suggested that the size or success or
want OF success OF business was
test of its public character. If size or
success is, as the opinion holds. the
test by which the existence or non-
existence of public calling is to be
determined. do not know where to
draw the line or when in the course OF
Its growth business which before
was private becomes public. The test
of size and success is a very differpnt
test from that Of virtual monopoly.
The opinion holds that the business
OF insurance Is affected with public
interest, not because of the combina-
tion which Is to be dissolved, but be-
cause II Is an important business neces-
sary to modern life. The reasoning ap-
plies as well to a single company as
to . combination of many companies.
In fact the decision goes upon the
ground that the court has the right
to regulate the business of each
separate company because it is af-
fected with public interest, and to
prevent each separate company from
- -. T. o
this Is correct the Mum case is au-
thority for the extension of the same
regulation to individual insurers.
The Right to Regulate.
"It is therefore important to deter
mine whether the right to regulate in
surance companies, which has long
been exercised, rests upon the ground
that they are affected with a public
interest. The expression affected With
public interest Is an unfortunate one.
Judge Cooley, Yeas ago, in discussing
Mum VS.. Illinois. was careful to warn
us against the danger Of giving too
broad a meaning to these words.
Cooley's Constitutional Limitations, 1856.
He says: The mere fact that the public,
have an interest in the existene ofsthe
business and are accommodated by 1t,
cannot be sufficient, for that would
subject the stock OF the merchant, and
his charges, to public regulation. The
public have an interest in every busi-
ness in which an individual offers his
wares. his merchandise, shis services. or
his accommodations to the public, but
HIS offer does not place him at the
mercy OF the public in respect to
charges and prices He then proceeds
to explain Mum VS.. Illinois as resting
upon the virtual monopoly, the very
condition which the present decree
undertakes to destroy, and he classi-
fles businesses which are affected with
the public interest as follows:
-. Where the business Is one the fol-
lowing Of which is not of right, but is
permitted by the State as privilege
or franchise. Under this head would
be comprised the business of setting up
lotteries of giving shows. etc.. of keep
ing billiard tables for hire and of selling
intoxicating drinks when the sale by
unlicensed parties is forbidden; also the
cases of toll bridges. etc.
60 Where the State, on public
grounds, renders to the business special
assistance BY taxation or otherwise.
's Wheye, for the accommodation of
the business, some SPECIAL use Is al
lowed to ky made of public propertyjor
of a publig easement
~. Where exclusive privileges are
granteddn consideration cf some special
returp to be made to the public
"ThA business of insurance against
fire II said to come within these classes
because 1t is regulated by the State,
andf companies which cannot satisfy a
cer4ain standard Of solyency and COM
rlY with certain conditions are not al
lo3ed 70 do business in the state. 1t
e9hnds rather strange TO find that the
Eurdens and requirements imposed by
fscrty-six dinegent STATES, from which
(Contlnued ON FJffth Pa9e.) |