Iowa Mutual Tornado Insurance Assn. v. Gilbertson

• Decision Date: 14 February 1906
• Citation: 106 N.W. 153,129 Iowa 658
• Parties: IOWA MUTUAL TORNADO INSURANCE ASSN. Appellant, v. G. S. GILBERTSON, State Treasurer, B. F. CARROLL, State Auditor, and G. S. GILBERTSON and B. F. CARROLL, Appellees, and seventeen other cases v. the same defendants and appellees
• Court: Iowa Supreme Court

106 N.W. 153

129 Iowa 658

IOWA MUTUAL TORNADO INSURANCE ASSN. Appellant, v. G. S. GILBERTSON, State Treasurer, B. F. CARROLL, State Auditor, and G. S. GILBERTSON and B. F. CARROLL, Appellees, and seventeen other cases v. the same defendants and appellees

Supreme Court of Iowa, Des Moines

February 14, 1906

Appeal from Polk District Court.-- HON. JAMES A. HOWE, Judge.

ACTIONS at law to recover taxes paid under protest, by the various insurance companies, appellants, to the defendants, who are respectively the Treasurer and Auditor of State. It is claimed that the statute, under which the taxes were exacted is unconstitutional and void. Defendants' demurrers to the petitions were sustained, and judgments were rendered against the several insurance companies for costs. They each prosecuted appeals to this court, and here the cases were consolidated and will be considered together.-- Affirmed.

Affirmed.

Edmund H. McVey, for appellants.

Charles W. Mullan, Atty. Gen., for appellees.

DEEMER J. SHERWIN, J., taking no part.

OPINION

DEEMER, J.--

The statute, under which the taxes sought to be recovered were exacted, reads as follows:

State Tax -- Date Payable. Every insurance corporation or association of whatever kind or character organized under the laws of the State of Iowa not including county mutuals or fraternal beneficiary associations, which county mutuals and fraternal beneficial associations are not organized for pecuniary profit, shall on or before the 1st day of March of each year, pay to the Treasurer of State a sum equivalent to one per centum of the gross receipts from premiums, assessments, fees, and promissory obligations required by insurance contracts which are received during the next preceding year preceding the 1st day of January last past, after deducting the amounts actually paid for losses, matured endowments, dividends to policy holders, and the increase in the amount of the reserve as certified by the department actuary in his official statement to the Auditor of State on the 31st of December previous, based on the actuary table of mortality and four per cent. and the amounts returned to members upon cancelled policies, certificates, and rejected applications during said year; and not until such payment shall the Auditor of State issue the annual certificate as provided by law.-- 28th General Assembly, page 26, chapter 43, section 5; section 1333d, Code Supp. 1902.

It is alleged that each of plaintiffs is a corporation organized under chapter 5 of title 9 of the Code, relating to corporations not for pecuniary profit, and that they paid the taxes required by said statute under protest, by reason of defendants' threats, and under compulsion, in order to protect themselves from irreparable injury. The law, under which these taxes were exacted, is said to be unconstitutional and void, in that it discriminates unfairly and illegally against complainants, is unequal in its application, and offends against article 1, section 6, article 3, section 30, and article 8, section 2, of the Constitution of Iowa the fourteenth amendment to the federal Constitution, and the civil rights act, known as section 1977 of the Revised Statutes of the United States [U.S. Compiled Statutes 1901, page 1259]. It is also contended that these complainants are exempt from all taxation under section 1304 of the Code of Iowa; and that the law under which they were organized does not contemplate the creation of a fund whereby to meet such taxation.

These propositions are nearly all based upon the fundamental concept that plaintiffs are corporations organized under our statutes as "not for pecuniary profit," and this is alleged to be the fact in the petitions filed in the several cases. The demurrers filed admit all facts well pleaded, but do not, of course, admit conclusions of law, nor do they admit facts which are contrary to law, nor such as are legally impossible. Wheeler v. R. R. Co., 31 Cal. 46 (89 Am. Dec. 147; Griffin v. R. R. Co., 72 Ga. 423; Scofield v. McDowell, 47 Iowa 129. To a proper solution of the questions involved it will be necessary first to go to the law authorizing the creation of such insurance companies as are here involved, in order that we may determine their character and understand their legal status. By section 1759 it is provided that:

Any number of persons may, without regard to the provisions of the preceding chapter, enter into contracts to and with each other for their insurance from loss or damage from fire, tornadoes, lightning, hailstorms, cyclones or windstorms, but such associations of persons shall in no case insure any property not owned by one of their own number, except school or church property within the territory in which they do business as may be approved; and the reinsurance of risks of similar associations.

And by section 1760 we have this differentiation of such associations:

Any association incorporated under the laws of this State for the purpose of furnishing insurance as provided for in this chapter, doing business only within the county in which is situated the town or city named in its articles of incorporation as its principal place of business, or the counties contiguous thereto, shall, for the purposes of this chapter, be deemed a county mutual assessment association; all other associations operating hereunder shall, for the purposes of this chapter, be deemed state mutual assessment associations.

Chapter 1 of title 9 of the Code, under the general head "Of Corporations for Pecuniary Profit," provides for the organization of corporations to do any kind of lawful business; and chapter 2 of the same title, under the designation "Of Corporations Not for Pecuniary Profit," section 1642, reads as follows:

Any three or more persons of full age, a majority of whom shall be residents of this State, may incorporate themselves for the establishment of churches, colleges, seminaries, lyceums, libraries, fraternal lodges or societies, temperance societies, trades unions or other labor organizations, agricultural societies, farmers' granges, or organizations of a benevolent, charitable, scientific, political, athletic, military or religious character by signing, acknowledging, and filing for record with the county recorder of the county where the principal place of business is to be located, articles of incorporation stating the name by which the corporation or association shall be known, which shall not be the same as that of any such organization previously existing, its business or objects, the number of trustees, directors, managers or other officers to conduct the same, and the names thereof for the first year.

In chapter 4 of title 9 under the head "Of Insurance Other than Life," we find section 1684 reading as follows: "Corporations formed for the purpose of insurance other than life, shall be governed by the provisions of chapter one of this title except as modified by the provisions of this chapter." The sections of the Code first quoted are found in chapter 5 of title 9, under the caption "Of Mutual Fire Assessment Associations."

The allegations of plaintiff's petitions with reference to the nature of their business are as follows:

Plaintiff avers that it was duly organized as a mutual insurance corporation, with authority to do business in the State of Iowa in the year 1892, and that it has complied with all the laws of the State of Iowa relating to mutual insurance, and that this plaintiff since the date of its organization has annually received its certificate to do an insurance business in the State of Iowa under the seal of the office of the Auditor of State. That thereafter and continuously, and at all times since, this plaintiff has continued to conduct the business of mutual insurance within the State of Iowa upon the purely mutual plan, collecting assessments, paying losses, and in all things, conducting business in full compliance with the laws of the State of Iowa.

In the fifth paragraph of the petitions it is alleged:

Plaintiff avers that, under the authority of the State of Iowa it has established a large business in the State of Iowa with numerous agents and officers and clerks, and has a large number of contracts outstanding with its members amounting in the aggregate to many thousands of dollars, that its annual receipts are about $ 100,000, on account of assessments received for insurance written in the State of Iowa. That it at all times has complied with all the laws of the State of Iowa; that it is a solvent corporation; that it has met all of its obligations and conducted its business in all respects in accordance with law and in a prudent and business-like manner, and to the satisfaction of its members.

Plaintiffs contend that they are organized under chapter 2 of title 9 as benevolent institutions; but this manifestly cannot be true, for, under the allegations of their petitions, they were each doing an insurance business. Grimes v. Northwestern Legion of Honor, 97 Iowa 315, 64 N.W. 806, and cases cited. They are not simply benefit societies or benevolent associations; and if they incorporated they must have done so under chapter 1 of title 9 of the Code. That they had the right to do so is already established. Corey v. Sherman, 96 Iowa 114, 64 N.W. 828. So that, if incorporated to do business under the general incorporation laws of the State, it must have been under chapter 1, title 9, and not under chapter 2 of that title. This then gives them the designation of corporations for pecuniary profit. As to the county mutuals referred to in the act now challenged, we shall have something to say during the course of this opinion.

To the proposition that the act should be held not to apply to corporations like those now...