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originated should hold a different relation and responsibility to it than that attaching to the action of the other branch, and it well may be as it indeed appears, that the Constitution intended that an act could be passed over the Executive veto only in the event that that house which was responsible for its original adoption had, on reconsideration after an Executive veto, passed it by a vote of two-thirds of its entire membership, and that such enactment, notwithstanding an Executive veto, should not depend upon the hazard of an attendance at the time of such final action measured by a mere quorum of the body. This line of reasoning of course presupposes, as I do, that the constitutional intent was that passage, notwithstanding a veto, should require a larger vote than that dependent upon a mere two-thirds of a quorum.

Taking up for a moment an analysis of the provisions relating to action by that house other than the one in which the act originated, I proceed to consider whether its requirements can be so construed as to be equivalent to or of like effect with those relating to the house of the origin of the bill, and it seems to me manifest that the vote required in the former case is obviously less than that required in the latter; nor can the two provisions be made, by any process of reasoning apparent to me, to be of the same significance.

Whether there was or was not good or sound reason for the apparent difference of requirement set forth in the Constitution is certainly beyond the legitimate field of my inquiry. If such a distinction appears and is held to be conclusive of the intent of the Constitution, it must and will be recognized and enforced by the courts, resulting, if my line of reasoning be accurate, in judicial declaration that unless two-thirds of the entire membership of the house of the origin of the bill vote affirmatively to pass it, notwithstanding a veto, there has been no enactment in law, and the supposed statute is in consequence a mere nullity.

Entertaining the opinion which I do and which I have herein stated, I must declare to you that in my opinion the act to which you call my attention is without validity, and is in law as if it had never appeared upon our statute book. In reaching this conclusion, I am not unmindful that a law duly enacted should be presumed to be constitutional until the courts of competent jurisdiction have finally otherwise decided, but it is to be observed that the question submitted to me and by me considered is not whether there was constitutional authority for this enactment vested in the Legislature, but whether the Legislature has acted within the limitations and according to the authority of the Constitution in the assumed passage of the act; in other words, I do not deal with the

construction of the act itself with relation to constitutional questions, but I confine myself wholly to an inquiry as to the construction of the Constitution itself upon which the existence rather than the validity of the act is to be determined.

I therefore am constrained to advise you, in conclusion, that there is grave doubt whether you have any official authority or power to issue instruments which, upon their face and in form, shall declare an obligation of the Commonwealth. The issuance of bonds in tenor and form binding upon the State must have, in their inception, clear, unquestioned and unassailable authority. Upon the state of facts which I have assumed, and upon that construction of the Constitution to which my own judgment leads me, I am required to say that such authority does not, in my opinion, exist.*

Very truly yours,

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HERBERT PARKER, Attorney-General.


Authority of Foreign Fire Insurance Corporation to do Business within the Commonwealth - Revocation Reinsurance.

When it appears that a foreign fire insurance corporation admitted to do business in this Commonwealth has reinsured risks on Massachusetts property in fire insurance companies not so admitted, without filing the affidavit required by R. L., c. 118, § 83, to the effect that the amount of insurance adequate to protect the property could not be obtained in companies regularly admitted to, do business in Massachusetts, the Insurance Commissioner may, under R. L., c. 118, § 20, revoke the authority of the corporation to carry on business here, notwithstanding that the contract of reinsurance was made and was to be performed beyond the limits of the Commonwealth.

JULY 21, 1904.

Hon. FREDERICK L. CUTTING, Insurance Commissioner.

DEAR SIR: — In your letter of July 1 you desire my opinion whether, upon the facts disclosed in the examination by your department of a foreign fire insurance corporation, you have power to revoke the company's authority to transact business in Massachusetts.

The corporation, which was admitted to Massachusetts in 1891, has, at its general offices in the city of New York, reinsured risks on Massachusetts property in companies which have not been authorized to do business in Massachusetts, no affidavit having been filed, in accordance with R. L., c. 118, § 83, that the amount

*For a very full and instructive discussion of the origin and history of the veto power, see opinion of Nott, J., in United States v. Weil et al., 29 C. Cls. R. 523.


of insurance necessary to protect the property could not be procured in admitted companies. In each case the contract of reinsurance was made and was to be performed in New York city. R. L., c. 118, § 20, provides in part as follows: — ̊

If a company directly or indirectly reinsures a risk taken by it on any property located in this commonwealth in a company not duly authorized to transact business herein, . . . the insurance commissioner may revoke its authority to transact business in this commonwealth.

This statute does not limit such action by the Insurance Commissioner to acts done by the company within this Commonwealth; its intention is to prevent, so far as it may, the insurance of Massachusetts property by companies not under the control or supervision of this Commonwealth. It purports to authorize the Insurance Commissioner to revoke the company's authority, although the ground of revocation is an act done outside this jurisdiction. The question is whether this statute thus construed is constitutional.

While the Legislature has no right to require an owner of property situated in Massachusetts to insure it only in authorized companies (Allgeyer v. Louisiana, 165 U. S. 578), the right of the Legislature to dictate terms upon which a foreign company may reinsure its risks as a condition of remaining here rests upon a different and valid foundation. A person owning property here has a right to insure it in such company as he chooses, provided the forbidden act of insurance takes place outside the jurisdiction. Since the contract of insurance, if made outside the jurisdiction, for the sake of the owner is not to be interfered with, the other party to the contract, the insurance company, is sheltered by the owner's privilege, but in case of reinsurance, neither the insuring company nor the reinsuring company, when not authorized to do business here, is guaranteed by the Constitution the right to make that contract. The owner of the property and his rights are not to be considered, since the contract of reinsurance is entirely between the two foreign companies, there being no relation between the owner and the reinsuring company.

The State may prohibit foreign insurance companies entirely from doing business within its limits. It may then impose such conditions as it pleases upon the doing of business, and upon failure to perform the conditions it may refuse authority to do business or revoke an authority once given. Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410; Hooper v. California, 155 U. S. 648; Manchester Fire Insurance Company v. Herriott, 91 Fed. 711.

In Waters-Pierce Oil Company v. Texas, 177 U. S. 28, a Texas

statute provided that every foreign corporation violating its provisions should forfeit its right to do business in Texas. The Attorney-General proceeded against a foreign corporation which was authorized to do business in the State for forfeiture of that right. In the United States Supreme Court the corporation contended that the statute limited its right to make contracts and took away its property without due process of law. The court sustained the forfeiture which had been declared by the State court, observing: "What right of contracting has it in the State of Texas? This is the only inquiry, and it cannot find an answer in the rights of natural persons." See also Blake v. McClung, 172 U. S. 239; Orient Insurance Company v. Daggs, 172 U. S. 557.

It is no objection to the exercise by the Insurance Commissioner of the power given him by this statute that his reason for revoking the authority of the company is that the company has done an act outside the jurisdiction which the Commonwealth cannot effectually prohibit by penal laws, having no extra-territorial effect. Since insurance is not interstate commerce, the State may deprive a foreign company of the right to do business within its limits for any reason that it deems proper.

In Doyle v.. Continental Insurance Company, 94 U. S. 535, the Supreme Court of the United States held that an injunction to restrain the Insurance Commissioner from revoking the license of a foreign insurance company must be denied. In that case the license was revoked for the reason that the company removed a case from the State to the federal court, in violation of a State statute providing that in case of such removal its license should be cancelled. The company, as a condition of its license, had been required to agree not to remove any case. Though the agreement was void (Insurance Company v. Morse, 20 Wall. 445), and a similar statute applying to a corporation or individual having a right to do business in the State would be unconstitutional as denying a right guaranteed by the federal Constitution (see Barron v. Burnside, 121 U. S. 186, 199), a majority of the court held that since a foreign insurance company has no constitutional right to do business within the State, it was justifiable to give the corporation the option either to stay out or to deny itself a federal right.

I therefore conclude that the statute authorizes you to revoke the license of the foreign insurance company for the reasons stated, and that the statute is valid though indirectly prohibiting acts done outside the State, since under it the corporation had an option to stay out of the State or comply with the statute.

Very truly yours,

HERBERT PARKER, Attorney-General.

Insurance Fraternal Beneficiary Association - Foreign Cor

poration Admission to Commonwealth · ment Rates.

-Mortuary Assess

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A foreign fraternal beneficiary association which was not doing business in the Commonwealth on May 23, 1901, and which does not at the time of its application have in force mortuary assessment rates not lower than those indicated as necessary by the National Fraternal Congress Mortality Tables, as required by R. L., c. 119, § 13, may not be admitted to carry on business within this Commonwealth.

JULY 22, 1904.

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Hon. FREDERICK L. CUTTING, Insurance Commissioner. DEAR SIR: - In your letter of April 27, you request my opinion whether the Supreme Lodge, Ancient Order of United Workmen, a foreign fraternal beneficiary corporation, may be admitted to do business in this Commonwealth.

The Supreme Lodge was incorporated in Kentucky in 1873. In 1878 it entered Massachusetts and established here subordinate lodges. In 1883 one of these subordinate lodges, called the Grand Lodge, Ancient Order of United Workmen, was incorporated under the Massachusetts laws. Although an independent fraternal beneficiary corporation, the Grand Lodge continued to affiliate with the Supreme Lodge and contribute to its support in a manner afterwards expressly made legal by St. 1899, c. 442, § 15 (R. L., c. 119, § 10). In 1886 the charter of the Supreme Lodge was withdrawn, and the Supreme Lodge continued to exist as a voluntary association until 1899, when it was incorporated under the laws of Texas. It is to-day a Texas corporation.

During the period from 1886 to 1899, while the Supreme Lodge was a foreign voluntary association, the Grand Lodge, the Massachusetts corporation, continued in business in Massachusetts and is still transacting business here.

The important feature of these dates to be noted is that during the period from 1886 to 1899 the Supreme Lodge was a foreign unincorporated association.

The law regulating the admission of a foreign fraternal beneficiary corporation is R. L., c. 119, § 13:

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No such corporation which was not doing business in this commonwealth on the twenty-third day of May in the year nineteen hundred and one shall hereafter be admitted to do such business in this commonwealth unless it shall have adopted and have in force mortuary assessment rates which are not lower than those then indicated as necessary by the "National Fraternal Congress Mortality Tables."

Two questions arise: —

(1) Wasthe Supreme Lodge doing business in Massachusetts on May 23, 1901?

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