On appeal from the Supreme Court, whose opinion is reported in 119 N.J.L. (at p. 307).
For the appellant, David T. Wilentz, attorney-general, and Louis J. Cohen, assistant attorney-general.
For the respondent, Osborne, Cornish & Scheck (Abram H. Cornish and Ervin S. Fulop), and Frederick H. Nash (of the Massachusetts bar).
The opinion of the court was delivered by
PARKER, J. The Supreme Court, on certiorari, set aside an order of the commissioner of banking and insurance, made by authority of the act of 1907 (Pamph. L., p. 136) which provides that:
"4. No form of policy of life insurance shall be issued by any domestic company, or be issued or delivered within this
state to any resident thereof by a foreign life insurance company, until after such form shall have been filed with the commissioner of banking and insurance. If the commissioner shall at any time notify any company of his disapproval of any such form, as contrary to law, specifying particulars, it shall be unlawful for such company thereafter to issue any policy in the form so disapproved. Such disapproval of the commissioner may be reviewed by a writ of certiorari."
The section, with slight verbal modifications, appears in Rev. Stat. 1937 as Rev. Stat. 17:34-18.
The order in question disapproved policy forms filed by the respondent, on the ground that provisions therein calling for interest on policy loans at six per cent. per annum, payable in advance, were in violation of our Usury act. The Supreme Court, on certiorari as provided in the act, set aside the order of disapproval, on the ground that the contract of insurance is a Massachusetts contract, and, as we gather from the opinion, ubi supra, being valid by the law of Massachusetts, it cannot be questioned here.
We concur in the disposition of the cause by the Supreme Court, but not for the reason given by that court. A foreign insurance company desiring to do business in this state must obtain a permit to do so from the commissioner of banking and insurance, whose duty it is to see that certain statutory regulations, including those touching the framework of policies, are duly complied with. One requirement is that quoted at the outset of this opinion, that policy forms are to be filed with the commissioner and approved by him before a policy in any such form shall be issued or delivered within this state to any resident thereof by any foreign insurance company. Delivery in this state, to a resident of this state, of a policy contract "accepted" at the domicile of the foreign corporation, whatever the situs of the contract, constitutes "doing business in this state" in the intendment of the statute, and a prerequisite to delivery in this state is that such policy shall be in form lawfully approved by the commissioner.
We turn to the meritorious question involved, which is, whether the commissioner was right in ...