author: Sandford, J.

text:
    T. A. Emmet, Receiver of the Alliance Mutual Insurance Company v. Reed.
    The maker of a premium note, given to a mutual insurance company, for the security of dealers, under the twelfth section of the act applicable to this class of companies, is entitled to be credited, upon such note, the amount of premiums upon policies issued to others, or covering the interest of others, whom he ha3 influenced to insure with the company. He is not restricted to policies issued to himself and covering his own interest as an insurer.
    The giving up of a note of this character to the maker, by the officers of the company, after the amount thereof has been realized by the company in premiums upon policies issued to other parties whom the, maker has induced to insure with the company, is not a violation of the section of the statute which, prohibits transfers of the effects of monied corporations exceeding the value of one thousand dollars, unless authorized by a previous resolution of their boards of directors.
    Neither is such an act a payment to a stockholder of apart of the capital stock, in violation of the statute on that subject.
    (Before Oakley, Oh. J., and Sandfoud and Paine, J. J.)
    Nov. 1;

    Dec. 21, 1850.
    This action was brought by tbe plaintiff, as receiver, to recover from tbe defendant a balance of $3447.73, claimed to be due from bim to tbe Alliance Mutual Insurance Company, for premiums wbicb bad been improperly credited by tbe company to tbe defendant upon a note for $5000 given by bim to tbe company on tbe 1st of May, 1845, and upon several notes from time to time given by bim in renewal thereof, all of wbicb notes bad been returned to tbe defendant. Tbe original note for $5000 was given by tbe defendant, at tbe time of tbe organiza-1 tion of tbe company, for premiums in advance, as authorized by tbe l2tb section of the act of incorporation. That section provides that “ Tbe company, for tbe better security of its dealers, may receive notes for premiums in advance, of persons intending to receive its policies, and may negotiate such notes for the purpose of paying claims or otherwise, in tbe course of its business,” &c. (Laws of 1843, p. 69, § 8; Laws of 1842, p. 263, § 12.) The plaintiff alleged that the defendant had been, by mistake or. otherwise, improperly credited, upon his several notes, by the company, with the amount of premiums paid into the Alliance Mutual Insurance Company by different persons effecting insurances in the company, and not paid by the defendant nor by any one for his benefit, but which belonged in right and in fact to that cofnpany. And the plaintiff alleged that the defendant’s notes appearing satisfied on the books of the company, by the application of those premiums to his credit, such notes were improperly returned to him by the officers of the company. The plaintiff claimed that the defendant was only entitled to be credited with the amount of premiums upon policies issued to himself and covering his own property.
    The defendant alleged that at the time of executing the original note by him, it was expressly agreed between him and the person to whom such note was delivered in behalf of the company, that the same should be received by the company upon condition that the defendant might pay the same out of premiums for insurance made by himself, or by his procuration through his agents or otherwise; and he insisted that the premiums which had been credited to him came within the terms of that understanding, and were properly credited to him. Lewis Benton, the former secretary of the company, testified that there was such an agreement and condition with the defendant when he gave his original subscription note for five thousand dollars. That note was payable one year from its date. The note was taken up at the end of the year, May 1st, 1846, by applying the premiums on the policies he had obtained, which amounted to nearly one half of the note, and giving a new note for the balance on like terms. This transaction was carried through the books in the office like other business transactions. That within a month after, the defendant again reduced his note in like manner to a little over $1000, and the existing note was taken up by him, and a new note, dated back to May 1st, 1846, was given for the just balance, payable in one year, it being between $1000 and $1100. The transaction was fully ratified and acted upon by the company, and carried into and through the books like other business transactions. In or about October, 1846, this note was in like manner further reduced to about $150, and the old note was taken up, and a new one given for the balance so found due, dated May 1st, 1846, and this transaction was in like manner carried into and through the books of the company. And in December following, the defendant paid in cash, and a note against another party more than the amount of his note, and it was given up to him; and the transaction in like manner was carried through the books of the company, and approved as other business transactions of the company. So far as he knew, the manner of such payments was satisfactory to the company.
    The premiums so applied were in part on insurances for the defendant’s own benefit, and in part on insurances in which he had no interest, but which he had procured or influenced to be made with the company.
    The Alliance Mutual Insurance Company became insolvent, and the plaintiff was appointed the receiver of its property and effects by the court of chancery, on the 15th day of July, 1847.
    The cause was referred to referees,- who reported in favor of the defendant, and the plaintiff moved to set their report aside.

      B. Emmet, for the plaintiff.

      S. Sherwood, for the defendant.
   By the Court.

Sandford, J.

The plaintiff contends that the maker of a premium note given to a mutual insurance company, for the security of dealers, under the twelfth section of the act applicable to this class of companies, can discharge his obligation only by receiving policies issued to himself, and covering his own interest as an insurer; and that he cannot discharge it by receiving policies made to others, or covering the interest of others, whom he has influenced to insure with the company.

Unless this proposition is correct, the action cannot be maintained ; because it is shown that the premiums earned and paid, which were applied in reduction of the defendant’s note, were all earned on policies issued to him, or which were issued through his influence to other parties.

We hare considered the subject, and see no good reason for differing from the referees in their conclusion. The object of the novel security provided by this twelfth section, as we have often held, was to provide a substitute for capital stock by inducing capitalists and business men to lend their credit to the mutual companies. The inducements held out to the makers of the notes were, first, a per centage for the use of their credit; and, secondly, a gradual extinction of the liability, by payment of a corresponding amount in premiums, on policies to be issued by the company receiving the notes. As was well illustrated by the late chief justice, in Hone v. Allen, (1 Sandf. 171, note,), these companies could not hope for public patronage on the security of the premiums on the half million of dollars of insurance with which most of them were to commence operations. A large amount of subscription notes, under the twelfth section, was indispensable to a favorable beginning. In the case cited, the amount was $250,000; being thirty times more than the amount of premiums written, upon which the company there in question were entitled to organize.

In order to launch this company, it was necessary therefore, first, for its friends and patrons to take actual insurances in the outset to half a million of. dollars; and then to give or obtain subscription notes for premiums in advance, under the twelfth section, to furnish the real foundation for its business. It is very apparent that these notes would, in general, be given, not for premiums expected to be presently written or insurances likely to be- soon required by such friends and patrons of the company, for their personal benefit. It would be a great inducement for those friends, as well as all others, to give such notes, and so far as we can perceive, a great advantage to the Company, in enlarging its sphere of business,-if, on giving large subscription notes, the makers could reduce their liability by bringing persons to insure with the company, and to pay pre- • miums applicable to the subscribers’ notes. That such has been the universal, and heretofore unquestioned, practice, in these mutual companies from their origin, we have abundant reason to know, from very numerous judicial investigations in this court during the last three or four years.

It may, however, be justly observed, that usage does not make the law, and to return to the question: Such being the circumstances in respect of which this twelfth section was enacted, is there any thing in it, or any other portion of the charter of the company, which requires us to adopt a different rule ?

The notes are to be given by “ persons intending to receive its policies.” Those who receive its policies for their friends, whom they have induced to come and take insurances, and who otherwise never would have come, do receive its policies. But it is said the act means that the policies to be received must be issued to the maker of the note himself, or for the insurance of some interest of his own. We think this is altogether too narrow a construction of the provision. This was a marine as well as fire insurance company, and the case discloses that a considerable part of its business was .marine insurance. A large proportion of marine insurances are made in the name of persons who have no interest at all in the subject matter. If the defendant had taken the whole amount of this note in premiums on policies, in his own name, on ships, cargoes, and freight, for account of whom it might concern, in which he had no interest, and no charge beyond a correspondent’s request to make insurance ; would that be a valid discharge of his premium note ? It would, within the letter of the twelfth section, but clearly not within its spirit, if the plaintiff’s argument be a sound one. Yet we cannot doubt that such insurances were intended to be included in the expression, “persons intending to receive its policies.” Nor do we discover why insurances, actually obtained for the company, and thus received from it by the plaintiff, for and in the name of his friends and correspondents, are not equally within the intention of the statute. There is, we repeat, nothing expressed to the contrary. It accords with the object and purposes of the provision, and conflicts with no rule of construction or of policy, so far as we can discover.

The plaintiff argued that this construction would overthrow all the advantages sought to be secured to the public, in the annual report of the affairs of the company required by the fifth section of its charter; one portion of which was to be a statement of the amount of premium notes and cash on hand, with other assets of the company.

We do not perceive the consequence claimed upon this requirement. The whole publication exacted by the fifth section is totally defective in giving any adequate view of the affairs of the company. And, as one example, the premium notes” to be stated in the clause cited, certainly embrace premium notes given on policies written, whether fully earned, or only commencing to run; as well as the subscription premium notes under the twelfth section. Thus, the public reading the report would learn nothing as to the amount of real available notes held by the company. Then, in respect of subscription notes: If on the 1st of January, 1847, when an annual statement was made, the defendant’s note had stood at $5000, and prior to that date he had received policies for himself and his friends, the premiums on which were $2000; the statement, if truly made up; could not present any delusive account of the company’s affairs in respect of the note. Suppose half the premiums were on fire policies. Those are payable in advance, and would have been charged to the defendant at their respective dates. The sum total would have been deducted as of January 1st, 1847, from the amount of the note, which would then have appeared at $4000 in the report. Suppose the other $1000 to have been for marine insurances, one half of which had been earned, and the residue were still outstanding. The earned premiums would of course have gone into the account, and.been deducted with the fire premiums, and the note in the statement would thus appear at $3500. The outstanding marine premiums would not have appeared at all in the annual statement, as the only note held for them would have been the subscription note. When paid, subsequent to the 1st of January, they would extinguish so much of that note ; and in this particular would have no different effect on the verity of the statement, than would a like payment of the ordinary premium notes given on taking out marine policies, which, notes had appeared as assets in the statement, the premiums having been actually earned. If we suppose that fire premiums were chargeable, and marine premiums were earned, on the 1st of- January, 1847, which were to apply on the defendant’s subscription note, but which had not, in fact, been then paid; two suggestions may be made: First, The effect on the annual statement would be precisely the same, whether such insurances had been made in the defendant’s name or in the name of his friends; Second, The debts due to the company for premiums earned, and not paid, are not set forth in the annual statement at all. Therefore there would be no deception in stating the defendant’s subscription note at $5000, although it was liable at any moment to be reduced $1500, by his paying upon it that sum in respect of such earned premiums. Whether the $1500 were entered on the statement as so much due on a premium note, or as so much due for premiums earned, it would show no more and no less; and as it could only appear, in complying with the statute, under the former head, it clearly could not affect the public, if it more appropriately belonged under the latter. By whichever name it was designated, it would represent an asset of $1500, payable to the company. If paid on the 31st of December, the statement would have shown $1500 more under the head of cash on hand, and $1500 less under the head of premium notes.

The plaintiff made two other points, which we deem disposed of by our conclusion on the principal question. First, he claims that the giving up the defendant’s successive notes was in violation of the section of the revised statutes prohibiting -transfers of the effects of monied corporations, exceeding the value of one thousand dollars, unless authorized by a previous resolution of their boards of directors. Secondly, that the same acts were a payment to a stockholder of a part of the capital stock, in violation of another section of the same chapter of the revised statutes. In answer to the latter point, it will suffice to say, that although these subscription notes are a substitute for capital, they are not capital stock. This class of insurance companies has no capital stock. ■ •

It is, however, a perfect answer to both points, that there was no transfer of effects, or payment of stock, to the defendant. It was simply the discharge of his obligation to the company, on receiving payment from him, in a mode warranted by its terms.

The motion to set aside the report of the referees must be denied.


source: Caselaw Access Project

author: Oakley, Ch. J. Paine, J.

license: Public Domain

text:
    The Master and Wardens of the Port of New York v. Cartwright. The Same v. The Same. The Same v. Candler.
    The employment of a private individual to survey a vessel just arrived from a foreign port, in a damaged condition, before the discharge of her cargo, or any measures taken for a future voyage, and on such survey to determine what repairs were necessary, and his performance of that duty, are not a violation of the statutes. of this state, which confer upon the port-wardens of this city the exclusive power to make surveys of vessels deemed, unfit to proceed to sea, and to judge of the repairs which may be necessary for the safety of such vessels on their intended voyage.

    So, where a vessel, in the prosecution of her voyage between two foreign ports, puts into this port in distress, and a private individual examines the vessel and reports to the master and consignees the repairs he deems necessary, with a recommendation that she should be taken out and her bottom examined.
    It was not the intention of the legislature to confer an exclusive or unlimited power in all cases, upon the port-wardens, of making surveys or determining on the necessary repairs of vessels in this port. This power is clearly limited by the act to cases where a particular and specified voyage is contemplated.
    The act of 1819 prescribing the powers and duties of port-wardens is restrictive of the common right of every man to repair his own vessel in his own way, and is moreover of a highly penal character. It is therefore to be construed strictly.
    That part of the statute relative to the port-wardens which creates the offence complained of, is a violation of that provision of the constiiution of the United States, which empowers Congress “ to regulate commerce with foreign nations, and among the several states.” Per Paine, J
    (Before Oaklet, Ch. J., and Sandford and Paine, J. J.)
    Nov. 8;
    Dec 21, 1850.

      These were suits instituted by the Master and. Wardens of the port of New York against the defendants, to recover penalties alleged to have been incurred under an act of the legislature relating to the master and wardens, harbor masters and pilots of the port of New York, passed February 19, 1819, and a subsequent act passed in 1844. The first suit related to the barque Jenny Lind. The complaint set forth, “ that by the act* first above mentioned, the master and wardens of the port of New York, or any two of them, were required to be surveyors of any vessel deemed unfit to proceed to sea, and were by the said act made judges of the repairs which might be necessary for the safety of the vessel on her intended voyage; that in and by the said act, the master and wardens of the port of New York had conferred on them the exclusive power and authority to survey (with the assistance of one or more skilful carpenters) all vessels deemed unfit to proceed to sea, and to be judges of the repairs which might be necessary for the safety of such vessels on any intended voyage; that by a further act, passed. March 29th, 1844, it was declared, amongst other things, “ that if any person or persons shall, under any pretence whatever, do or perform or exercise any of the powers, duties, or functions of the master and wardens of the port of New York, by doing any of the acts, or performing any of the duties or services .belonging to or appertaining to them or their said office, specified in the act of February, 1819, or which otherwise belong or appertain to the said office, the person so offending shall forfeit and pay to the said master and wardens the sum of fifty dollars, to be sued for and recovered by them in their corporate name," &c., &c. The complaint further averred, that in the month of May, 1848, the barque Jenny Lind arrived at the port of New York in a disabled condition, and unfit to proceed to sea, without being repaired; that the defendant Cartwright, in violation of the statute, went on board of the vessel, and made a survey of her, and judged of the repairs which were necessary for the safety of the vessel on her intended voyage, and thereby became liable for the penalty under the act.
    The answer admitted the condition of the vessel, but averred that at the time of the alleged survey, she had not discharged her cargo, and had not made arrangements for anj particular voyage. The facts in this case appear fully in the opinion of the court.
    The case was tried before the Chief Justice, on the 20th of June, 1849, and upon the trial a verdict was directed to be given, pro forma, for the plaintiffs for the amount of the penalty.
    The second suit was brought to recover a similar penalty of the defendant Cartwright, in the case of the brig Velasco. In this case, the vessel arrived at the port of New York, on her voyage from Havana to Cowes, having been obliged to put into port in consequence of being disabled. The cause was heard upon the pleadings alone, the substance of which is stated in the opinion of the court. The cause was tried before the Chief Justice Oakley and a jury, in September, 1849, and a verdict was directed to be rendered in favor of the plaintiffs, pro forma, for the amount of the penalty.
    The third suit was brought to recover a similar penalty of the defendant Candler, in the case- of the brig Proteus. The cause was heard upon a demurrer to the complaint, at the special term in February, 1850, before Justice Mason, and judgment was rendered on the demurrer in favor of the defendant.
    In the latter case the following opinion was delivered at the special term.
    Mason, J. (after stating the pleadings.) — The point presented for decision is, whether, when a vessel arrives at this port needing repairs, but having terminated her voyage, it is necessary, before the owner or consignee can repair her, to call in the port-wardens and have her surveyed, and their judgment given as to the repairs proper to be put upon her; and upon the best consideration I have been able to give the subject, I am of opinion that it is not.
    The construction contended for by the plaintiffs is certainly not within the letter of the law. The vessel must be “ deemed unfit to proceed to sea on the intended voyage.” There must be, then, a particular voyage in view, and' the vessel about to proceed upon it, and there must also be an interference by some person or persons, according to whose opinion it is not safe to proceed in her; under such circumstances being “deemed,” judged, and considered by some person or persons, — but by whom it is not stated, — unfit to proceed to sea, on the voyage then intended, the port-wardens must make the survey; such is the literal construction of the act, and I apprehend that, in this instance, the letter is in harmony with the spirit. It is very proper, when the owners are about to send a vessel to sea which either shippers, or passengers, or crew should deem to be unfit for that purpose, that there should be some public officers appointed, of competent knowledge and experience in these matters, — as the wardens are required to be, — who, in a summary way, can examine the condition of the vessel, and direct the necessary repairs. The interest and safety of all the parties concerned require such a coarse, but there does not appear to me to be any sufficient reason why an owner or consignee cannot — after the voyage is terminated — make what repairs and alterations he thinks proper, without reference to these public officers. It seems to be an unwarrantable interference with' the rights which every man has over his own property, to insist on their interposition.
    If, after the vessel is repaired, she should still be deemed by any person whose life or property would be hazarded in her, unfit to proceed to sea on a voyage for which she is intended, the survey by the port-wardens can then be made; the state of things contemplated by .the act would then have arisen.
    In this view of the statute I am supported by the opinion of the late Yice-Chancellor, McCoun, in the case of Tyach v. Bromley, reported in. 1 Barb. Ch. Rep. 519, in which he says “that this exclusive power of the port-wardens does not of course apply to or include vessels lying in port, and requiring ordinary repairs or overhauling, previous to taking on board a cargo; but it does apply to all cases of vessels actually engaged in the prosecution of a voyage, which have put into port on account of some disaster, and also to vessels in port, which, having taken a cargo on board, and being about to commence a voyage, have sprung a leak, or met with some accident to affect their safety.” I do not, however, suppose that a leak or accident is necessary to give the wardens jurisdiction. If the passengers or crew deem the vessel unfit to proceed to sea, the wardens would be justified in making the survey. I am aware that this precise question was not argued in the case of Tyaclc. r. Bromley, and that the chancellor, on the appeal, said nothing on this part of the act. Yet the remarks of the vice-chancellor, although they may not have the weight of a binding authority, are entitled to great respect, especially as he examined the statute on this subject very .minutely and carefully, and gave a very elaborate opinion as to the powers and duties of the wardens.
    'Judgment must therefore be given for the defendant.
    From this judgment the plaintiffs appealed to the general term.

      A. L. Jordan, for the plaintiffs.

      F. B. Cutting, for the defendant in the two first causes.

      P. A. and S. F. Cowdrey, for the defendant in the third cause.
   Oakley, Ch. J.

These actions are brought to recover penalties, under the act of the legislature conferring certain powers on the port-wardens of this city.'

The case out of which the first action arose, was that of the Jenny Lind, a barque owned in England, which arrived in this port in a damaged state, having a cargo of merchandise on board. Upon her arrival, the consignees applied to the defendant, Cartwright, to make a survey upon her, and to determine what repairs were necessary. This was done before the cargo was discharged, or any measures taken in reference to any future voyage. Cartwright, acting under the application thus made to him, went on board of the vessel, and determined what repairs were necessary to render her sea-worthy, but without' reference to any particular voyage. He merely judged what would be needed to put her generally in a sea-worthy condition. The port-wardens contend that in doing so, he has committed a violation of the statute, which confers upon them exclusively the power and authority of surveying vessels deemed unfit to proceed to sea, and to be judges of the necessary repairs.

By the act of March, 1844, it is provided that, “ if any person or persons shall, under any pretence whatever, do, perform, or exercise any of the powers, functions, or duties, or services belonging to or appertaining to the port-wardens, specified in the act, entitled 1 An act to reduce the laws particularly relating to the city of New York into one act, so far as the same relates to the master and wardens, harbor-master and pilots of the port of New York, and their duties, and for other purposes,’ passed February 19th, 1819, each and every person so offending shall, for each and every offence, forfeit and pay to the master and wardens of the port of New York, the sum of fifty dollars, to be sued for and recovered by them in the manner specified.”

It is necessary to look at the act of February, 1819, thus referred to, in order to see what are the duties which that act authorizes the port-wardens to perform.

The fifth section of that act provides, that the port-wardens, ■or any two of them, shall be surveyors of any vessel deemed unfit to proceed to sea, and shall be judges of the repairs which may be necessary for the safety of such vessel on the intended voyage. Was any thing done by the defendant in violation of this act ? Was any thing done which the law empowers the port-wardens only to do ? It will be perceived by the plain import of this section, that it was not intended by the legislature to confer an exclusive power on the port-wardens in this respect; in all cases their power is clearly limited. In this case, it does not appear that any particular voyage was contemplated, but it is contended by the port-wardens that the meaning .of the words “ the intended voyage” is equivalent to the words “ any intended voyage,” or rather, that they include any future voyage, though not contemplated at the time of the repairs. On the part of the defendant, it is insisted that there must be some particular, specified voyage, in order to bring the case within the statute..

The act in question is restrictive of the common-law right of every man to repair his own vessel, through his own agent, and in his own way; and it is, moreover, of a highly penal character. It ought not, therefore, to be extended beyond its letter. There may be, and doubtless are, good reasons for appointing persons whose duty it shall be to see whether any vessel is fit or safe for any intended voyage actually set on foot. In such a case, the passengers (if any) and crew of a vessel may have an interest in inquiring into her safety for that particular voyage, .and may apply to the port-wardens, as official characters, to ascertain the same. But we think that, before the cargo is discharged, or any particular voyage is contemplated, the agent or owner can employ any person to inspect or repair the vessel. The words of the act are repugnant to the idea that a general unlimited power to survey vessels, and judge of necessary repairs, was intended to be given to the port-wardens. This construction is in accordance with the letter, and, as we think, the spirit of the act. If a vessel is going to Canton, she would require very different repairs or equipments from those that might be necessary if she were going on a( summer voyage'to Bermuda. This may illustrate the reason why the power of the port-wardens was confined to the survey of vessels in reference to some particular voyage.

We are of opinion that, by the just construction of this penal statute, the defendant has not done any thing which is forbidden by it, and that he has not incurred any penalty under it.

The second case is that of the brig Yelasco.

In this case, the Yelasco, owned in Massachusetts, on a voyage from Havana to Cowes, put into New York in distress, and required repairs to complete her voyage. There was, therefore, in this case, a particular voyage, in relation to which the act complained of was done. The answer of tbe defendant states, that “he was requested by the master and consignees of the barque to examine the vessel, in company with Mr. Poillon, a shipwright, and to give his opinion as to the repairs that she required. That, in pursuance of such request, this defendant and Poillon examined the brig, and found that she was strained, and several streaks of the wales started ofi^ and recommended them taken out, and new streaks put in, and the vessel re-tree-nailed from her copper up, and strengthened by 18 pairs of hanging knees being put in under the lower deck beams; a breast hook being put in forward, a pointer in aft, a new tiller and stanchions to the wheel, and all the seams aboye the copper to be thoroughly caulked, and also that the brig should he taken out and her bottom examined.”

There was here no final adjudication as to what repairs were necessary. The party only gave an opinion that certain repairs ought to be made. There was no determination as to what repairs were necessary to enable the vessel to pursue her voyage. The defendant does not, as we think, come within the terms of the act, as a further survey and examination were recommended before judging whether the repairs particularly specified were sufficient for the safety of the vessel in the prosecution of the voyage in which she .was engaged.

The case comes before us upon the pleadings only, and, considering the acts of the defendant as set out in his answer, it does not appear to us that they amount to a violation of the law, being only partial and unconsummated.

The third case is that of the Proteus.

This is an appeal from a judgment at special term, given on a demurrer to the plaintiff’s reply. The same questions occur here that arose in the first case, and there is no necessity, therefore, of examining them further. We have the opinion of the judge on the decision of the case at the special term. It accords, in principle, with the views already expressed, and we fully concur in it. The judgment in this case must be affirmed. In the other two cases, judgment must be rendered for the defendant.

Sandford, J., concurred.

Paine, J.

I acquiesce in the opinion of the court in this case, and in the reasons upon which it is founded. Those-reasons I understand to be, that the statute upon which the plaintiffs sue, is against common right, and is therefore to be construed strictly; and that the plaintiffs have not made out such a state of facts as entitles them to sue upon it.

But as there are reasons, which are'much more satisfactory to my mind, why the plaintiffs are not entitled to recover, I prefer assigning them as the grounds of my opinion, and in doing so, I wish it to be understood, that they have not been adopted by the other members of the court.

The action is brought to recover a penalty of fifty dollars; and the offence alleged is, that the defendant went on board the barque Yelasco, while lying in the port of New York, and made a survey of said, barque, and judged of the repairs which were necessary for the safety of the said vessel on her intended voyage. And this offence is alleged to be created by the act of the state of New York, passed March 24th, 1844, entitled “ An act to amend the act therein referred to, declaring the rights, and for the relief of the master and wardens of the port of New York.”

The provision of the act of 24th March, upon which the plaintiffs rely, is in the following words: “ That if any person or persons shall, under any pretence whatever, do, perform, or exercise any of the powers, functions or duties of the master and wardens of the port of New York, by doing any of the acts, or performing any of the duties or services belonging or appertaining to them or their said office, specified in the act, entitled ‘ An act to -reduce the laws particularly relating to the city of New York into one act, so far as the same relates to the master and wardens, harbor-master and pilots of the port of New York, and their duties, and for other purposes,’ passed February 19th, 1819, or which otherwise belong, or appertain to the said office, by virtue of any existing law of this state, or of the United States, each and every person so offending shall, for each and every offence, forfeit and pay to the master and wardens of the port of New York, the sum of-fifty dollars, to be sued for and recovered by them in their' corporate name, with costs of suit, in any court having cognizance thereof; the one half thereof, when recovered, to their own use, and the other half to the use of the pilots’ charitable fund, in the city of New York.”

The powers of the master and wardens, which the defendant is alleged to have exercised in violation of the above act, are conferred upon them by that part of the 5th section of the act of 19th February, 1819, which is in the following words: “ That the said master and wardens of the port of New York, or any two of them, with the assistance of one or more skilful carpenters', shall be surveyors of any vessel deemed unfit to proceed to seaand the said master and wardens, or any two of them, shall be judges of the repairs which may be necessary for the safety of such vessel on the intended voyage.”

It appears that the Yelasco was owned in Massachusetts, and had, on a voyage from Havana to Cowes, in the Isle of Wight, put into New York in distress. That she was also insured in Massachusetts, and that the defendant, as agent of the insurance company, in company with a shipwright, examined the vessel, and recommended certain repairs to be pnt upon her, which is the offence for which this suit is brought.

In my opinion, that part of the act of 24th March, 1844, which creates the offence complained of, is a violation of that provision of the constitution of the United States, which empowers Congress “ to regulate commerce with foreign nations and among the several states.”

It may be thought that a state tribunal should be solicitous rather to assert and defend the powers of its own state legislature than those of Congress; and that it does not become it to question the constitutionality- of a state law, until it shall have been declared to be Void by the courts of the Union. This sentiment, so generally entertained, is certainly entitled to respect, and I might not be insensible to its influence in a case where the interests of the citizens of this state would be greatly prejudiced by the decision.

But according to my view of tne consequences of the lavtin question, the citizens of the state of New York are more deeply interested than those of any other state, in a decision against its constitutionality.

I would not be understood as. characterizing this law, as in itself greatly injurious or unjust; it is the principle which it sanctions and establishes, which I think is pregnant with mischievous consequences. If the state of New York sets the example of imposing restraints upon navigation and commerce, it may, and no doubt will, be followed by every other state in the Union. And laws which are much more inconvenient and burdensome, may be defended upon the principle of our own.

The first requisite ■ to the prosperity of commerce is, that it should be subjected to no1 unnecessary restraints; the second, that such restraints as are' necessary should be as uniform and universal as possible. It was for this latter purpose, in a great measure, that the Union was formed, and in order that the power of regulating commerce for all the states might be confided to a single government. Perhaps no inconvenience was more severely felt by the states, before their union, than their conflicting laws in relation to commerce. Under so imperfect a system the depression of commerce became intolerable; but the moment uniformity was introduced under the constitution, every hope which had been formed was instantly realized.

I believe, therefore, that it is deeply the interest of every state in the Union, and especially of the most commercial of all the states, to leave the regulation 'of commerce exclusively to the government of the United States, to which, in my opinion, it exclusively belongs.

And this leads me to the two considerations upon which I think the decision of this case depends. First, whether Congress has exclusive power to regulate foreign commerce; and secondly, whether the law in question is an invasion of their power.

It will be remembered, that the provision of the statute, upon which this action is brought, is quite new, no such law having existed until 1844. The general law constituting the board of wardens, and prescribing their powers and duties, is among our oldest laws, and has never been questioned nor disturbed. Nor is it my desire or purpose, -in any way, to question its constitutionality. Its object is undoubtedly to provide facilities and advantages for foreign commerce, which Congress has not thought proper to provide. But it does not attempt to force them upon commerce, or to bind commerce to adopt them. It leaves commerce perfectly free, and is not therefore an attempt to regulate commerce.

But it is the object of the act of 1844, to compel all vessels entering the port of New York, whether from foreign countries, or the sister states, if they require a survey or examination before leaving port, to employ the wardens of the pbrt to make such survey. That this is a regulation of commerce, I suppose cannot be doubted; and the only question which can be made about it is, whether it is an invasion of the power vested in Congress.

I do not propose to enter into a discussion of the question, whether the power of Congress to regulate commerce is in every instance and to every extent an exclusive power. The decision of that question belongs to the supreme court of the United States, where it has recently been much discussed, and where it seems yet to remain in dispute. Many cases have arisen in that court supposed to involve this point, and most of them quite lately, which the court have been greatly embarrassed to dispose of. In one respect they all belong to the same class. They are cases where the internal interests of a state are involved, and where there therefore exists a necessity for state legislation, besides the legislation of Congress. Such have been the cases arising out of the laws of the states providing regulations respecting the importation of foreign paupers, the importation of contagious diseases, the sale of imported spirituous liquors, the regulation of navigable waters so as to prevent their affecting the public health. (Passenger Cases, 7 How. S. C. R 283; License Cases, 5 Ibid. 504; Blackbird Creek Marsh Company, 2 Peters, 250; New York v. Miln, 11 Peters, S. C. R. 130; Brown v. State of Maryland, 12 Wheat. 419; Groves v. Slaughter, 15 Peters, 511.)

In many of these cases, it is impossible to deny that the states have a right to pass laws, although such laws incidentally cover the same ground as the power of Congress. In other cases, it is extremely difficult to determine whether it is a case in which a state ought to be permitted to legislate, and whether the whole subject does not belong to Congress. The discussion of these cases has lately led to a decided difference of opinion among the judges of the supreme court, upon the question whether the power of Congress to regulate commerce, was in all respects an exclusive power. And, indeed, it seems to have been thought that the decision of some of the cases depended, in some measure, upon the decision of that question.

It might seem unfortunate, that the discussion of these cases was allowed to involve the general question of the exclusiveness of the power of Congress over commerce. (Passenger Cases, 7 How. U. S. R. 480-1, 471; License Cases, 5 How. R. 579, 583.) A distinction, however, has always been taken in these cases, in respect to this power, between such portions of commercial incidents as were wholly foreign, and such as were also partly domestic. That such a distinction exists is very obvious. But Until these recent cases arose, where the states had clearly an interest of their own in what they attempted to do, I think I may safely say it was never questioned that the entire power of Congress over commerce was throughout exclusive.

It appears to me, that these cases do not depend at all upon the question as to the exclusiveness of the power of Congress over commerce, but upon the question, whether the state law was passed under a reserved power of the state. This is the view taken of them by Oh. J. Marshall, in Gibbon v. Ogden, (9 Wheat. 203.) He says expressly, in speaking of inspection laws, It cannot be admitted, that a power to regulate commerce is the source from which the right to pass them is derived. (Contra, Ch. J. Taney, License Cases, 5 How. R. 532-3.) They form a portion of that immense mass of legislation, which embraces every thing, within the territory of a stale, not surrendered to the general government; all which can be most advantageously exercised by the states themselves Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those tvhich respect turnpike roads, ferries, &c., are component parts of this mass. No direct power over these subjects is granted to Congress; and consequently they remain subject ‘o state legislation.”

But whatever may have been said incidentally aid as matter of argument in these cases, about the power of Coigress over commerce, I think the highest authority can be shovn, that the regulation of what is unmixed foreign commerce belongs exclusively to Congress. The Federalist, in the 42d number, treats of the power of Congress over commerce, and assigns a single reason only why it is lodged with that body, viz., that we may become one nation in respect to other nations. This can only mean, that uniformity of regulation will be secured by unity of legislation. And it is perfectly evident, that the great reason for confiding this power over commerce to Congress, was, to secure such uniformity — a uniformity which could never be attained if the states continued to legislate. If this be so, then a a power remaining in the states to regulate commerce, would be contradictory and repugnant to the power vested in Congress, as the rule is laid down in the 32d number of the Federalist; and it is an instance of repugnancy, precisely like that given by the Federalist, in support or illustration of the rule, which is, the power of Congress “ to establish an uniform rule of naturalization throughout the United States.” And the reason applied by the Federalist to that instance, applies equally to this, viz.: “ This must necessarily be exclusive: because if each state had power to prescribe a distinct rule, there could be no uniform rule.".

In Ogden v. Saunders, (12 Wheat. 307-8,) Mr. J. Thompson, who never inclined to construe the powers of Congress as exclusive, admits, that powers, granted to Congress for national purposes, are exclusive in themselves, without any corresponding prohibition upon the states. The reason there, is evidently the same as that given by the Federalist, viz., that they must necessarily be exclusive, in order that we may be one nation.

The opinions of those who were engaged in framing the constitution, respecting its construction, have always been considered the highest authority; and the rules above referred to, laid down in the Federalist, have been implicitly followed by the supreme court. The opinions of those who composed the first Congress, after the adoption of the constitution, have been almost equally respected, (Houston v. Moore, 5 Wheat. 26; Martin v. Hunter’s Lessee, 1 Ibid. 851,) that Congress having numbered among its members many of the framers of the constitution. The first dozen acts passed by that Congress are principally devoted to the regulation of commerce, and among them is one which declares, that the pilots in the waters of the United States shall continue to be regulated in conformity with the existing or future laws of the states, until further legislative provisions shall be made by Congress.

Now this law expresses, unmistakably, the opinion of the Congress which passed it, upon the question, whether they had exclusive power over commerce. Such a law would have been entirely unnecessary, if Congress had supposed the states had power to pass laws regulating pilots without it. Nor can I see that the force of this argument is in the slightest degree impaired by the fact, (supposing it to be so,) that Congress had no right thus to delegate their legislative power to the states. This only shows that Congress, in this respect, may have been mistaken. But it leaves untouched, the opinion of Congress,_ that the states had no power, except what it gave them. (See opinion of Ch. J. Taney in the License cases, 580.)

In the leading case of Gibbons v. Ogden, (9 Wheat. 1,) the opinion of the court was delivered by Ch. J. Marshall, and was not dissented from by any member of the court. In this opinion, the court maintain, with irresistible reasoning, that the power of Congress over foreign commerce, including navigation, is an exclusive power, and that the state law is repugnant to it. It is perfectly true that, in consequence of the magnitude of the case, and the situation in which the court found itself, of being obliged to declare a state law void, which had enlisted on its side the power, the influence, and deep interest of the first state in the Union, the court, after having shown the law to be void, because the power over commerce was exclusive, went further, and also showed that it was void, because it conflicted with the laws of Congress. I am unable to comprehend how it should ever have been insisted (opinion of Daniel, J., Passenger cases, 7 How. R., 499,500; opinion of Taney, Ch. J., License cases, 5 How. R., 502-4) that this was a waiver or abandonment by the court, of the first and main ground which it had taken; especially, when after the opinion follows the decree of the court, declaring the law to be void, because it was repugnant to the constitution, and saying nothing of its conflicting with the laws of Congress.

The case of Gibbons v. Ogden remains undisturbed, so far as foreign commerce is concerned, by any subsequent decision, nor do I believe that it has ever been the intention of a single judge, in any opinion delivered in the supreme court, to question its authority in this respect.

It remains to be considered, whether the provision of the law in question is an attempt to regulate foreign commerce or navigation, and for that reason is repugnant to the constitution of the United States.

The object of the law has no connection with the internal affairs of the state. It is true that the law relates to ships in port, but only in order to ascertaining whether they are in a fit state to go to sea. While a ship remains in port, the state or its citizens have no interest in her being fit for sea, and when she leaves port, the jurisdiction and power of the state over her entirely ceases. The law in effect says, that a damaged ship shall not proceed to sea, or on a foreign voyage, unless she shall have been surveyed by the wardens of the port. Eor, obviously, a damaged ship must be repaired, and if all persons, except the wardens, are forbid to judge of what repairs are necessary, the effect of the law is, to prevent a damaged ship from going to sea, unless the wardens have surveyed her. Now this, I suppose, is too clearly an attempt to regulate foreign commerce to require further argument. It is clearly an attempt to regulate commerce, and to do nothing else; and it is equally clear that it is not at all an attempt to regulate domestic commerce.

The only ground upon which this law has been attempted to be justified is, that it was passed for the protection or safety of those going to sea, and especially of our own citizens. A state might, for the same reason, direct of what materials, and in what manner, ships should be built; or provide that they should not carry gunpowder or combustibles; or, that in time of war they should go armed, or not sail without convoy; or, indeed, lay an embargo in time of war, and forbid their going to sea at all.

"When tbe constitution was adopted, tbe state of New York consented that tbe safety of its citizens, in all these respects, should be taken-care of and provided for by Congress. They surrendered to Congress their whole power over the subject. And surely with great wisdom. For if the state of New York were to put forth all its power for the protection of its citizens on the high seas, it would be utterly insignificant; while, under the protection of the laws and .flag of the Union, their safety is secured, so far as it can be done by human power or foresight.

In the first two cases, judgment for the defendant. In the third case, judgment of the special term affirmed.