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A Corporation can exist only within the limits of the sovereignty which created it, but it may act elsewhere through agents, if the laws of other countries permit. (Bank of Augusta v. Earle, 13 Peters 519.)
The National Insurance Company, as a Corporation owes its being to the Legislature of the Dominion. That Legislature, when giving it being, not only gave it perpetual succession, but power to contract for insurance against loss or damage by fire; but, the form of the contract, and the rights of the parties thereunder, must, we think, depend upon the laws of the country or province in which the business is done.
In this respect the defendants are in no better or worse condition than a foreign Corporation doing business in the Province of Ontario. (Howe Machine Co. v. Walker, 35 U.C., Q. B., 37).
Parsons v. The Queen Insurance Co. (43 U. C., Q. B., 271), affirmed 4 Ont. App. 109. This case arose upon a contract of insurance similar to the preceding one of Parsons v. The Citizens Insurance Co., the Ontario Court of Appeal affirming the judgment of the Queen's Bench, and holding that the defendants could not resort to their own conditions nor to the statutory conditions, as they were not printed on the policy as required by the Ontario Statute; that the Ontario Statute was not ultra vires, as the Legislature of Ontario had power to deal with an Insurance Company incorporated by the Dominion Parliament in reference to insurances effected in Ontario; and holding that policies of insurance are not transactions coming within the words “Trade and Commerce,” and so within the exclusive jurisdiction of the Dominion Parliament. That policies of insurance, being mere contracts of indemnity against loss by fire, are like any other personal contracts between parties governed by the Local or Provincial law. That the Provincial Legislature has the power to regulate the legal incidents of contracts to be enforced within its Courts, and to prescribe the terms upon which corporations, either foreign or domestic, shall be permitted to transact insurance business within the limits of the Province (adopting the reasoning in Paul v. Virginia, 8 Wall, 168). The judgments in these cases of The Queen Insurance Co. and Parsons and The Citizens Insurance Co. and Parsons, on Appeal, were confirmed by the Supreme Court (Can.) 21st June, 1880. Fournier, J., concurring in the dismissal of the appeals, stated the facts as follows: The principal question to be decided in these cases is whether the Ontario Act, 39 Vic. ch. 24 (now ch. 162 of the Revised Statutes of
Ontario) “an Act to secure uniform conditions in policies of fire insurance,” is intra vires of the Ontario Legislature. Its constitutionality is questioned on the ground that the power of legislating in reference to the subject matter of insurance belongs to the Federal Parliament, as the necessary sequence of its exclusive power to regulate trade and commerce. (Sect. 92, § 2). In order to ascertain whether there is a conflict of powers, the first
step, no doubt, is to examine the character of the law in question. As,
may be seen from its title, the object of the Act is to secure uniform conditions in policies of fire insurance. The second section enacts, that if the conditions of the contract of insurance have not been strictly complied with, it shall not be a sufficient reason to annul the contract. First, where, by reason of necessity, accident or mistake, the conditions have not been complied with ; secondly, where, after proof of loss has been given in accordance with the conditions of the contract, the Company objects to the loss upon other grounds than for imperfect compliance with such conditions; thirdly, where, after having received this proof, the Company does not notify in writing to the assured, within a reasonable time, the reason for which the Company considers the proof defective; fourthly, when the Court or Judge for any other reason considers it inequitable that the insurance should be deemed void by reason of imperfect compliance with such conditions. The third section declares that the conditions set forth in the schedule to the Act shall, as against the insurers, be deemed to be part of every policy of fire insurance, with respect to any property situate in the Province of Ontario. These conditions must also be printed on the policy of insurance, with the heading “Statutory Conditions.” The fourth section indicates the manner in which the conditions may be varied or omitted, or new conditions added by being printed in a particular way. The fifth section declares that the variations shall not be binding on the assured unless they have been made in conformity with the fourth section. If the contrary is done, the policy shall, as against the assurers, be subject to the statutory conditions only. By the sixth section, it is declared that if any other conditions than the statutory conditions are inserted in the policy, and that the Judge of the Court declares that they are not just and reasonable, that such conditions shall be null and void. The seventh section allows an appeal from any decision given under the Act.
Taschereau, J., dissentiente, said:
I do not concur in the judgment of the Court in these cases, and I proceed to state the grounds upon which I dissent;
The Citizens' Insurance Company of Canada, known in the first instance under an Act of the late Province of Canada (19 and 20 Vic. cap. 124, 1856), as the Canada Marine Insurance Company, later, under 27 and 28 Vic. cap. 98, 1864, as the Citizens' Insurance and Investment Company, and now, under its present name, by an Act of the Dominion Parliament, 39 Vic. cap. 55 (1876), has obtained from the Federal authority, by this last statute, the right to make and effect contracts of insurance upon such conditions, and under such modifications and restrictions, as might be bargained or agreed upon by and between the Company and the persons contracting with them for such insurall Ces.
By chapter 162 of its Revised Statutes, the Ontario Legislature has virtually revoked this power which this Company held from the Federal authority, and repealed the enactment of the Dominion Act under which the said Company held this power-for a law repugnant to another as entirely repeals that other, as if express terms of repeal were used.
Had the Ontario Legislature, under the British North America Act, the power to do so 7 or, to put the question in another shape: Had the Dominion Parliament the right to pass the 39 Vic. cap. 55, under which the Company Appellant claims the right to issue its policies under such, conditions as they please ? For it must be admitted that, under the British North America Act, there can be no concurrent jurisdiction in the matter between the Federal and the Local Legislative authorities, and that if the Dominion Parliament had the power to so authorize the said Company to issue its policies under such conditions as it pleased, and to enact the said 39 Vic. cap. 55, the Local Legislature had not the power to revoke this authorization or to repeal the said Act. It would be a strange state of things if the Local Legislatures could repeal an Act passed by the Dominion Parliament. They cannot do it either expressly or impliedly. They cannot by their legislation render nugatory the enactments of the Federal Legislative power on subjects left under the control of the same Federal Legislative power by the British North America Act.
Are these statutes—the Federal Act, creating the Company Appellant, and the Ontario Act imposing conditions on its policies of insurance—regulations of trade and commerce : If they are, the Federal Act is constitutional and the Ontario Act unconstitutional. Both these statutes are regulations of commercial corporations and commercial operations, and the words “regulation of trade and commerce" in section 91 of the British North America Act mean—all regulations of all the branches of trade and commerce. A contrary interpretation would be against the very letter of the Act. Companies doing the business of insurance, are commercial companies, and their operations are of a commercial nature. In one of the Provinces (Quebec) so far back as 1845, long before the Civil Code, the Court of Queen's Bench, in Montreal, composed of Wallière, Rolland and Day, J. J., in a case of Smith v. Irvine, reported at page 47 of the first volume of the Revue de Législation, held that the insuring against fire by an Insurance Company is a commercial transaction—so it is held to be in France. Boudousquie, Traité de l’Assurance, No. 70 and 384; Dalloz, Actes de Commerce, No. 216 ; 2 Pardessus Droit Commercial, No. 588; Dalloz Diction. vo. Assurance Terrestre, Nos. 19, 20 and 22.
In Prussia, Belgium, Portugal, Spain, Holland and Wurtemburg, the contract of insurance against fire is also held to be a commercial contract. Why should it be considered otherwise in England, the emporium of trade and commerce, where the amount of business done by these fire companies is so large Not a single authority has been cited tending to shew, that there, they are not considered as commercial companies, or that their operations are not considered as commercial operations. On the contrary, in Homen's Cyclopedia of Commerce, McGregor's Commercial Statistics, McCulloch's Commercial Dictionary, these companies and their contracts are treated of, as falling under the commercial operations and the commercial law of England. In Stephens' Commentaries, Vol. 2, p. 127, an insurer is spoken of as a party “carrying on ” a general trade or “business of insurance.”
In Lewis' Manual of Mercantile Law, paragraph 30, Joint Stock Companies are said to be under the Commercial Law of England, and also at paragraph 230, these Insurance Companies are said to be within the Mercantile Law. So in Smith's Mercantile Law and in Chitty's Commercial and General Lawyer. And Lord Mansfield, in Carter vs. Boehm, 3 Burr, 1,905, says that “Insurance is a contract upon speculation.” This case it must be remarked was tried before a special jury of merchants, yet it was not a case of maritime insurance
I really cannot see on what grounds under the English Law, a Fire Insurance Company can be said to be a non-commercial corporation. It is commercial, it seems to me, for the same reasons that make it so in France and in the rest of Europe, that is to say, because it is a Company doing the business of speculation on risks and hazards, because it trades on its contracts of indemnity—because it does the business of selling that indemnity. It is as commercial as the contract of maritime insurance, the character of which admits of no doubt (2 Stephens' Commentaries, 128), and in which, as in the contract of fire insurance, there is nothing but a contract of indemnity. (Dalby v. India and London Life Insurance Company, 15 C. B. 365.) What is trade 2 Trade is an occupation, employment or business carried on for gain or profit. (Abbott's Law Dictionary, 1879, v. Trade. Also, 1 Holmes, 30.) In the United States, as in England, this seems uncontroverted. In Angell & Ames on Corporations, insurance companies are classed among commercial corporations. In Parson's Mercantile Law and Bryant & Stratton's Commercial Law, fire insurance is treated of, as forming part of the commercial law. In the Civil Code of Louisiana, the contract of insurance was entirely left out, to form part of the Code of Commerce, which it was then intended to promulgate. But great stress is laid on the decision of the Supreme Court of the United States in Paul v. Virginia (8 Wallace, 168), where Field, J., said, that issuing a policy of insurance is not a transaction of commerce. This case is not binding on this Court; and a reference to the report shews that this is an obiter dictum of Mr. Justice Field, and that the gist of the decision in that case, is, merely, that insurance business done by a New York Company, in the State of Virginia, does not fall within the meaning of the clause of the constitution, which declares that Congress shall have power to regulate commerce with foreign nations, and among the several States. Mr. Justice Field himself, in Pensacola Telegraph Co. v. Western Telegraph Co. (96 U. S. 2), explained what he said in Paul v. Virginia, as follows:—“In other words, the Court held that the power of Congress to regulate commerce was not affected by the fact that such commerce was carried on by corporations, but that a contract of insurance made by a Corporation of one State upon property in another State was not a transaction of inter-state commerce. It would have been outside of the case for the Court to have expressed an opinion as to the power of Congress to authorize a foreign Corporation to do business in a State, upon the assumption that issuing a policy of insurance was a commercial transaction.” So the case of Paul v. Virginia, has no application whatever here. The relative positions of the Parliament of the Dominion of Canada, and the Legislatures of the various Provinces, are so entirely different from those of Congress and the Legislatures of the several States, that all decisions from the United States Supreme Court, though certainly always entitled to great consideration, must be referred to here with great caution. There, the right to regulate commerce in the State is