Citizens' Ins. Co. v. Hebert
| Decision Date | 05 June 1916 |
| Docket Number | 21650 |
| Citation | 71 So. 955,139 La. 708 |
| Parties | CITIZENS' INS. CO. v. HEBERT, Secretary of State |
| Court | Louisiana Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
O'NIELL, J., dissents and hands down reasons.
The opinion and judgment heretofore handed down herein are reinstated and made the judgment of this court.
[*none] [EDITOR'S NOTE: The following court-provided text does not appear at this cite in La.]
O'NIELL, J. (dissenting).
The statute in contest, approved July 9, 1914, attempts to impose the charge of 1 per cent. of the premiums on all fire insurance written by foreign corporations in the cities, towns, and villages of the class designated, during the year ending on the 31st of December, 1913, as well as during the entire year 1914 and subsequent years. The provisions of the second and third sections of the statute leave no doubt that the charge of 1 per cent. was to be computed and imposed upon the business done during the period exceeding a year and a half preceding the adoption of the law. Section 2 provides that every foreign fire insurance company 'now or hereafter desiring to engage in or carry on business in this state' shall, within 60 days after the promulgation of the act, and thereafter within 60 days after December 31st of each year, render an account to the secretary of state of all business done in the designated cities, towns and villages in the state during the year ending on December 31st of each year. Hence the first account to be rendered was of the business done during the year ending on December 31, 1913. Section 3 provides that the foreign insurance companies shall, within 60 days after the approval of the act, and thereafter within 60 days after the 31st day of December of each year, pay to the state treasurer 1 per cent. of the premiums on all fire insurance business written in the cities, towns, and villages of the class designated, 'during the year ending December 31st in each preceding year or for such portion of such period as said company, corporation or association shall have done business in this state.' Hence, it follows that the first payment, to be made within 60 days after the approval of the act, that is, on or before the 7th of September, 1914, at the rate of 1 per cent. of the premiums on all fire insurance written during the preceding year ending on the 31st of December, was to be computed on, and charged for, the business done during the calendar year 1913. And the second payment, to be made within 60 days after the 31st of December, 1914, was to be computed on, and charged for, the business done during the entire calendar year 1914, notwithstanding the statute was only approved on the 9th of July of that year.
The manifest purpose and object of the statute, therefore, was not to define the conditions on which foreign fire insurance companies might do business in this state, nor to regulate their manner of doing business but to obtain revenue, by taxing the business done and to be done by them, for the protection and benefit of the property owners and inhabitants of the cities, towns, and villages of the class designated in the statute.
We observe also that in section 4 of the statute in question it is made the duty of the secretary of state to investigate the accounts rendered by each foreign insurance company, 'and collect the amount which he shall find to be due.' Section 5 imposes a penalty of forfeiture or fine of $ 500 for each offense of failing or neglecting to keep the accounts of the business done, or for failure or neglect to report or pay over any money due within the time specified, or for making a false return of the business done. Section 6 authorizes the secretary of state to revoke the license of any foreign insurance company defaulting in payment or failing to pay or satisfy any forfeiture adjudged to be due under the provisions of the act. The same section provides that, after such revocation of its license, it shall be unlawful for a foreign fire insurance company to do business in this state, unless the secretary of state sees fit to permit the company to continue doing business on compliance with the requirements of the statute.
Under a reasonable construction of this statute, therefore, the payment by a foreign insurance company of the penalties imposed in section 5 and 6, for a failure to render a correct account and make payment within the time specified, would not relieve the secretary of state of his duty to collect the amount found to be due on his investigation of the accounts rendered, as provided in section 4 of the act. The statute does not provide any special remedy on the part of the secretary of state for collecting the amount which the statute makes it his duty to collect; but when the liability is created, the right and duty of the secretary of state to enforce payment implies and carries with it his right to proceed with an ordinary action for the debt. The penalty of forfeiture or fine of $ 500 and of forfeiture of the license or right to do business in this state is not -- and was not intended to be -- the remedy whereby the secretary of state should perform his duty of collecting the 1 per cent. due on insurance premiums, because, as a matter of fact, the fear or threat or imposition of the penalty might not force or coerce the collection of the amount due by a delinquent insurance company. As was said by the Supreme Court of the United States, in Pollard v. Bailey, 20 Wall. 520 (87 U. S.) 22 L.Ed. 378, although, where a statutory liability is provided with a special remedy, that remedy alone must be employed for its enforcement, a liability created by statute without a special remedy may be enforced by an appropriate common-law action.
It appears, therefore, that the charge of 1 per cent. of the premiums on fire insurance written by foreign companies in certain designated municipalities in this state was to become a debt, which, by the express terms of the statute, it was the duty of the secretary of state to collect. And that is the only element of the charge that is deemed lacking, and is deemed essential to constitute a tax, in the majority opinion rendered in this case.
A careful reading of the statute in question shows that the use of the word, 'tax,' or of any word that might readily be considered synonymous with or equivalent to the word 'tax,' was studiously and adroitly avoided in framing this act. In the third section, the charge imposed is given its first designation as 'the sum of $ 1 upon the $ 100, and at that rate upon the amount of all premiums written on fire insurance within the limits of such incorporated cities, towns or villages during the year ending December...
To continue reading
Request your trial