Bankers Life & Cas. Co. v. Cravey, 34990

• Decision Date: 11 May 1954
• Docket Number: No. 34990,No. 1,34990,1
• Citation: 90 Ga.App. 113,82 S.E.2d 150
• Court: Georgia Court of Appeals
• Parties: BANKERS LIFE & CASUALTY CO. v. CRAVEY, Comptroller General

Page 150

82 S.E.2d 150

90 Ga.App. 113

BANKERS LIFE & CASUALTY CO. v. CRAVEY, Comptroller General.

No. 34990.

Court of Appeals of Georgia, Division No. 1.

May 11, 1954.

SYLLABUS BY THE COURT.

The petition did not state a cause of action for a declaratory judgment, and the trial court did not err in sustaining the general demurrer and in dismissing the petition.

Bankers Life and Casualty Company filed its petition in Fulton Superior Court against Zack Cravey, in his official capacity as Comptroller General of the State of Georgia, and alleged: '1. Petitioner is a life insurance company, incorporated and existing under the laws of the State of Illinois. 2. The defendant herein is Zack D. Cravey, the Comptroller General and Insurance Commissioner of the State of Georgia, and this suit is brought against the defendant in his official capacity as such. 3. That official residence of the defendant is Fulton County, Georgia, and the defendant is subject to the jurisdiction of this court. 4. Petitioner was issued a license to do business in the State of Georgia by the defendant in June, 1947, and each year thereafter defendant renewed said license until July 1, 1951, at which time defendant refused to issue renewal license to petitioner. 5. Section 92-2509.1 of the Georgia Code of 1933 provides that all insurance companies 'doing business in this State shall pay a tax of 2% upon gross direct premiums received by them upon persons, property, or risks in Georgia from January 1st to December 31st, both inclusive, of each year.' Section 92-7304 of the Georgia Code of 1933 provides, as a penalty for failure to pay said premium taxes 'the revocation of permits to do business in the State.' 6. On February 22, 1951, petitioner filed its annual report and paid to defendant, in his official capacity, the $300.00 license fee required by the Georgia Statute for the year commencing January 1, 1951. In addition, on February 22, 1951, petitioner paid to defendant in his official capacity, $18,177.70 for premium taxes for the period of January 1, 1950, to December 31, 1950, pursuant to said Section 92-2509.1 and Section 92-2509.2 of the Georgia Code of 1933. 7. Notwithstanding the fact that it complied with all the laws of the State of Georgia for its aforesaid renewal license, the defendant failed and refused to perform the ministerial act of issuing a license to your petitioner, and your petitioner was forced to institute mandamus proceedings against the defendant in the Fulton Superior Court, in which case a mandamus absolute judgment was entered, the same being Case No. A-25441. Despite the said judgment of the Court, defendant failed and refused to perform the ministerial act of executing and issuing petitioner's license for that year. 8. In 1951 the Legislature of the State of Georgia amended Section 56-403 of the Georgia Code of 1933 and changed the calendar year basis for the licensing of insurance companies in Georgia to that of a fiscal year commencing on July 1st and ending on June 30th of the following year. 9. By reason of the issuance of the mandamus absolute judgment as aforesaid your petitioner was led to believe that it was authorized to do business in the State of Georgia despite the failure of the defendant to perform the ministerial act of issuing evidence of a renewal license to petition for the year ending June 30, 1952. Acting on the assumption that petitioner was entitled to the renewal license your petitioner filed its annual report, and on February 28, 1952, applied for a renewal license for the year commencing on July 1, 1952, and paid to the defendant in his official capacity the sum of $300.00 as the license fee. 10. On February 28, 1952, petitioner paid to the defendant in his official capacity the sum of $11,697.60 for premium taxes based on the preceding twelve-month period ending on December 31, 1951, in order that no claim could be made that your petitioner had violated the provisions of Section 92-7304 of the Georgia Code of 1933. 11. The defendant, in his official capacity, accepted said $11,697.60 for premium taxes, but, nevertheless, refused to perform the ministerial act of issuing petitioner's renewal license for the year beginning July 1, 1952, and ending June 30, 1953. Petitioner commenced a proceeding seeking a writ of mandamus to compel defendant to perform the ministerial act of issuing its renewal license, which is now pending in the Fulton Superior Court as Case No. A-31483.

'12. Petitioner has now and has had at all times mentioned herein, on deposit with the Director of Insurance of the State of Illinois, United States Government bonds valued in excess of $300,000.00, which securities are deemed by said Insurance Director to be the equivalent to cash. Said securities are subject to the order of the Insurance Director of the State of Illinois as a guaranty fund for the protection of all policy obligations of petitioner and as a guaranty fund for the security of its policyholders. 13. The deposit referred to in the preceding paragraph was made pursuant to valid existing Statutes of the State of Illinois which Statutes are contained in Smith-Hurd Ill.Ann.Stat., Ill.Rev.Stat., 1951 Ed., c. 73, Sections 638 and 757, and are as follows: 'Section 638-26. (Deposit of Minimum Capital). A deposit of cash or securities which are authorized investments under section 125, in an amount equal to the minimum capital required by section 13 but not in excess of two hundred thousand dollars, shall be made and maintained with the Director for the protection of all policy obligations of the company.' 'Section 757-145. (Deposits). When any company is required by the laws of this State or of any state or country, or by other competent authority, to make a deposit with an insurance supervising official or other financial officer and the company desires to make such deposit in this State the Director shall accept such deposit, if made in securities authorized for investment by section 125. So long as the company continues solvent and complies with the laws of this State it may collect the income on such securities. The company may substitute therefor other like securities as prescribed by this Code for deposit. If the value of securities deposited by any company shall decline below the amount so required, the company shall make a further deposit.' 14. The said deposit of United States Government bonds referred to in the two preceding paragraphs was made and is in compliance with Paragraph I [§ 6] of Article IV of the Constitution of the State of Georgia as set forth in Section 2-2901 of the Georgia Code of 1933. In addition to the United States Government bonds on deposit with the Director of Insurance of the State of Illinois, your petitioner has on deposit various sums of Government bonds with the properly designated officers of the thirty-nine states in which it is licensed to do business, and petitioner has on deposit with the State of Georgia $30,000.00 in United States Government bonds, and the Treasurer of the State of Georgia issued his official receipt for said bonds, and a photostatic copy of said receipt is attached hereto marked Exhibit 'A' and made a part hereof.

'15. In 1947 when your petitioner was first licensed to do business in the State of Georgia your petitioner furnished the Comptroller General of the State of Georgia a proper certificate issued by the Director of Insurance of the State of Illinois evidencing the deposit of United States Government bonds with the said Director of Insurance of the State of Illinois, which deposit and which certificate complied with Paragraphs I and II [§ 6] of Article IV of the Constitution of the State of Georgia and as set forth in Sections 2-2901 and 2-2902 of the Georgia Code of 1933, and there is attached hereto marked Exhibit 'B' and made a part hereto a photostic copy of the certificate of the Director of Insurance of the State of Illinois dated February 27, 1953. 16. Petitioner has complied with Paragraph V [§ 6] of Article IV of the Constitution of the State of Georgia as set forth in Section 2-2905 of the Georgia Code of 1933.

'17. If petitioner has not, in fact, been authorized to do business in the State of Georgia during the years 1951, 1952-1953, it is entitled to be reimbursed by the defendant for the $300.00 license fee for the year commencing January 1, 1951, and the premium taxes paid on February 22, 1951, in the amount of $18,177.70. In addition, petitioner will be entitled to receive from defendant the payments made to him on February 28, 1952, to-wit: $300.00 license fee for the year ending June 30, 1953, and $11,697.60 for premium taxes. 18. If, by virtue of compliance with Paragraphs I, II, and V [§ 6], of Article IV of the Constitution of the State of Georgia, petitioner has in fact been authorized to do business in the State of Georgia during the years 1951 and 1952-1953, the State of Georgia will be entitled to collect from petitioner the following amounts: (a) 1953 State Premium Tax on Ordinary Life Insurance written by your petitioner in the sum of $205.88. (b) 1952 State Premium Tax on Commercial Accident and Health Insurance written by your petitioner in the sum of $13,738.70. (c) 1952 State Premium Tax on Group Accident and Health Insurance written by your petitioner in the sum of $53.59. 19. If, by virtue of compliance with Paragraphs I, II and V [§ 6] of Article IV of the Constitution of the State of Georgia, petitioner has in fact been authorized to do business in the State of Georgia from July 1, 1952, to June 30, 1953, and from July 1, 1953, to June 30, 1954, the State of Georgia will be entitled to collect from petitioner a premium tax on its gross direct premiums received by it from January 1, 1953, to December 31, 1953, both inclusive, as well as a license fee of $300.00.

'20. In order to protect its rights and to prevent its being irreparably damaged and injured, your petitioner wishes to deposit...