Constitutional Rights of Policy-Holders. the contract, or that it is depriving the plain tiff of his property in that contract without due process of law, or that it is denying to him the equal protection of the law? Every man in the State of New York who has a contract with a railroad corporation, with a banking corporation, with certain kinds of insurance corporations, associations and in dividuals; with manufacturing corporations, has a right to have his case adjudicated and determined, and to have all of the machinery of the courts at his service in securing his rights; but because he happens to have made a contract with a particular kind of insurance organization, he is denied these rights and privileges, and this does not con stitute that equal protection of the law which the Constitution of the United States in tended to guarantee. If the contract which the plaintiff made with the defendant in the Swan case stipulated for certain benefits to the insured, and if the defendant neglected and refused to perform its part of the con tract, the plaintiff having fully performed on his part, there was a right of action, and whether legal or equitable it is not material to inquire in the State of New York, as the code has abolished all distinction between them, except in the matter of remedies. This right of action was a vested right, because the supreme law of the State, at the time of making the contract, provided a tribunal to have jurisdiction of the con troversy, and because, under the laws and customs of this State, every person has a right of action for a breach of contract. This vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. " Where it springs from contract, or from the principles of the common law," says Judge Cooley in his "Constitutional Limitations" (6th ed., p. 443), "it is not competent for the legislature to take it away. And every man is entitled to a certain remedy in the law for all wrongs against his person or his property, and can
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not be compelled to buy justice, or to sub mit to conditions not imposed upon his fellows as a me^ns of obtaining it." (See Westervelt v. Gregg, 12 N. Y., 202, 211; Angel v. Chicago, St. Paul R. R. Co., 151 U. S., 20; Steamship Co. v. Joliffe, 2 Wal lace, 450; Hein v. Davidson, 96 N. Y., 175.) This right of action being property, can there be any doubt that the plaintiff in the Swan case was deprived of that property right, without due process of law, when the legislature of New York enacted that the courts of that State should not issue process for the enforcement of his rights without the intervention of the attorney-general, or when the Court of Appeals declared that he " has not legal capacity to maintain this action?" "Depriving an owner of property of one of its attributes," says Judge Andrews in People v. Otis (90 N. Y., 48), " is depriving him of his property within the constitutional provision," and the principal attribute of property in a contract is the power and the machinery for its enforcement. It will not be prof1table at this time to enter into an historical review of " due process of law," or of the " law of the land," terms which in their essence are identical, but simply to point out what is not due process of law as applied to the question now under considera tion. If section 56 of the Insurance Law is an attempt on the part of the legislature to usurp the powers of the judiciary, then its action is not "the law of the land," but a mere arbitrary act in the form of legislation. Judge Cooley says that "judicial powers, judiciary powers-, and judicatories, are all phrases used in the Constitution; and though not particularly defined, arc still so used to designate with clearness that department of the government which it was intended should interpret and adminis ter the laws. On general principles, there fore, those inquiries, deliberations, orders and decrees, which are peculiar to such a department, must in their nature be judi cial acts. Nor can they be both judicial
