93 N.E. 213 (Ind. 1910), 21,409, State v. Mutual Life Insurance Company of New York

Docket Nº21,409
Citation93 N.E. 213, 175 Ind. 59
Opinion JudgeJordan, J.
Party NameThe State of Indiana v. Mutual Life Insurance Company of New York
AttorneyJames Bingham, Attorney-General, W. H. Thompson, E. M. White and A. G. Cavins, for the State. Smith, Duncan, Hornbrook & Smith, William L. Taylor and Romney L. Willson, for appellee.
Case DateDecember 09, 1910
CourtSupreme Court of Indiana

Page 213

93 N.E. 213 (Ind. 1910)

175 Ind. 59

The State of Indiana

v.

Mutual Life Insurance Company of New York

No. 21,409

Supreme Court of Indiana

December 9, 1910

Mandate Modified December 23, 1910.

From Superior Court of Marion County (77,243); J. L. McMaster, Judge.

Action by the Mutual Life Insurance Company of New York against The State of Indiana. From a judgment for plaintiff, defendant appeals.

Affirmed in part. Reversed in part.

James Bingham, Attorney-General, W. H. Thompson, E. M. White and A. G. Cavins, for the State.

Smith, Duncan, Hornbrook & Smith, William L. Taylor and Romney L. Willson, for appellee.

OPINION

Page 214

[175 Ind. 62] Jordan, J.

This action was instituted by the Mutual Life Insurance Company of New York against The State of Indiana in the Superior Court of Marion County, the latter sitting as a court of claims under and by the authority of the provisions of § 1485 Burns 1908, Acts 1895 p. 231. By the first paragraph of the complaint the plaintiff seeks to recover, as a claim against the State, $ 1,296.76 as principal and $ 1,726.84 interest paid by it to the Treasurer of State involuntarily and under protest. The principal sum demanded arises out of money paid by plaintiff to James H. Rice, Auditor of State, as taxes for the first half of the year 1884, being $ 3 on each $ 100 of premiums collected by plaintiff within the State of Indiana, which sum it appears that said auditor failed to pay to the Treasurer of State. The payment by plaintiff of the principal and interest was made on December 11, 1906, and interest was computed and charged by the State from 1884 to December 11, 1906. By the second paragraph of the complaint plaintiff seeks to recover from the State the interest only that it paid upon the principal.

Appellant demurred to each paragraph of the complaint [175 Ind. 63] for want of facts. Its demurrer was overruled, to which ruling of the court it excepted. It then answered the complaint specially in four paragraphs. No general denial was filed. Appellee demurred to each paragraph of the

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answer. Its demurrer was sustained to the second, third and fourth paragraphs of the answer, and appellant refused to plead further. Appellee's demurrer to the first paragraph of the answer was overruled, and it refused to plead further. Thereupon the court rendered a judgment in favor of appellee.

From the judgment appellant has appealed directly to this court under the provisions of § 1489 Burns 1908, Acts 1889 p. 265, § 5, and relies for reversal of the judgment below upon the alleged errors of the court in overruling its demurrer to each paragraph of the complaint, and in sustaining the demurrer of appellee to the second, third and fourth paragraphs of the answer. The complaint to some extent may be said to state conclusions of the pleader instead of facts.

In the first paragraph plaintiff alleges that on and prior to March 8, 1848, it was, and ever since has been and yet is, a corporation organized and acting under and pursuant to the laws of the State of New York; "that ever since said March 8, 1848, it has been engaged in conducting the business of life insurance in the State of Indiana, under authority granted to it by the properly-constituted authorities of said State; that upon the enactment of the first statute of said State so requiring, it made application, as a foreign corporation, to the Auditor of State, for permission to do business in the State of Indiana; that upon such application plaintiff took every step and did everything which said auditor requested and required as a condition precedent to its right to do business in said State of Indiana, and thereupon said Auditor of State granted to plaintiff his certificate of authority to do business in the State of Indiana as a foreign insurance company; that from time to time ever since said date, and at the times provided by the statutes of the State of Indiana, from time to time in force, it has applied to the [175 Ind. 64] Auditor of State for a renewal of such certificate of authority to do business in the State of Indiana, and at the time of each application plaintiff took every step and did everything which said auditor for the time being requested or required from it, as conditions precedent to its doing business in the State of Indiana as a foreign life insurance company, and in every such instance said Auditor of State granted to plaintiff his certificate of its right to do business in the State of Indiana as a foreign insurance company; that ever since said March 8, 1848, plaintiff has been actively engaged in the business of life insurance in the State of Indiana under such certificates, and is yet so engaged in doing a life insurance business in the State of Indiana under the last certificate of such authority to do business in the State of Indiana, issued to it by said Auditor of State; that from the date of its beginning to do business in the State of Indiana under the authority of the certificates so issued to it by the Auditors of State, as heretofore set forth, up to and including the year 1905, each Auditor of State construed the statutes of said State as authorizing him to receive and collect from plaintiff, and from other foreign insurance companies doing business in the State of Indiana, all taxes and charges levied and demanded under the laws of said State for the privilege of so doing business in said State, for the purpose of paying them into the office of the Treasurer of State and each Auditor of State from time to time demanded and received from this plaintiff and all other foreign insurance companies doing business in the State of Indiana (of which in 1884 there were 122, and which steadily increased until in 1905 there were 162), except five, under the construction so placed by him upon such statutes, the taxes and charges by him computed as being due, and from said plaintiff under such statutes for the privilege of doing such business in the State of Indiana, and in pursuance of such demand, this plaintiff paid all such taxes and dues to said Auditors of State from the date of its admission to do business in the State of Indiana up to and including the [175 Ind. 65] year 1905; that said Auditors of State paid said taxes and dues (except possibly as hereinafter stated) to the Treasurers of State, who received the sums of money from said auditors, and placed them in the funds of the State. And plaintiff further says that, as required by the statutes of the State of Indiana, from time to time in that behalf enacted and in force, the respective Auditors of State made stated reports to the Governors of the State of Indiana of the business transacted in the office of said auditors during the period covered by said reports, respectively; that said reports in every instance showed the fact that each auditor, under the construction by him placed upon such statutes, had collected from all such foreign insurance companies, except five, the taxes due from them to the State of Indiana, and had charged himself therewith on his account at the time of the receipt thereof, and had credited himself with the payment thereof to the Treasurer of State at the time of making such payments to said treasurer; that at the meetings of the General Assembly of the State of Indiana printed copies of such reports of the Auditors of State were by the Governors transmitted to both the senate and the house of representatives, and printed copies thereof were forwarded to each member of both houses;

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that the chief executives of the State and the legislative department of the government were in this manner fully apprised of the construction placed upon the statutes of the State, enacted in that behalf, by the Auditors of State, and of their acts and conduct in receiving such taxes and in paying them to the Treasurers of State; that in addition to the delivery of copies of said printed reports to the Governors and to the members of the General Assembly of the State of Indiana, many hundreds of copies of said reports were distributed to private citizens throughout the State. And plaintiff further avers that in certain years the State Board of Tax Commissioners, which was charged with the duty of preparing blank forms of reports of said insurance companies, to be by them made to the Auditor of State as a basis for [175 Ind. 66] estimating the taxes to be paid by them, in preparing such form of reports caused to be printed on the back thereof a copy of the statute in that behalf enacted: 'Section 83. (Acts 1881 pp. 611, 636.) Every insurance company not organized under the laws of this State, and doing business therein, shall, in the months of January and July of each year, report to the Auditor of State, under oath of the president and secretary, the gross amount of all receipts received in the State of Indiana, on account of insurance premiums for the six months last preceding, ending on the last day of December and June of each year next preceding, and shall, at the time of making such report, pay into the treasury of the State the sum of $ 3 on every $ 100 of such receipts, less losses actually paid within the State, and any such insurance company failing or refusing, for more than thirty days, to render an accurate account of its premium receipts, as above provided, and pay the required tax thereon, shall forfeit $ 100 for each additional day such report and payment shall be delayed, to be recovered in an action in the name of the State of Indiana on relation of the Auditor of State, in any court of competent jurisdiction. And it shall be the duty of the Auditor of State to revoke all authority of any such defaulting company to do business within this State.'

"That such construction of said statute placed thereon by said several...

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