New York Life Ins. Co. v. State
| Decision Date | 07 December 1926 |
| Citation | 211 N.W. 288,192 Wis. 404 |
| Parties | NEW YORK LIFE INS. CO. v. STATE. |
| Court | Wisconsin Supreme Court |
Original action by the New York Life Insurance Company against the State of Wisconsin. On motion by plaintiff for judgment on the pleadings. Motion denied.--[By Editorial Staff.]
This is an original action against the state, brought by the New York Life Insurance Company, to recover a portion of the license fees paid by it, as a foreign corporation, in order to secure a license to do business in Wisconsin. Plaintiff made a motion for judgment on the pleadings and on an agreed state of facts. Motion denied.
The statutes of Wisconsin require foreign insurance companies to pay a fixed fee and to secure a license as a condition of being permitted to do business in Wisconsin. The statutes also contain a retaliatory provision, which appeared in the statutes of Wisconsin in the years here in question, in the following forms:
“Whenever the laws of any other state of the United States shall require of life, fire, accident or inland navigation insurance companies organized under the laws of this state and doing business in such other state any deposit of securities for the protection of their policy holders or otherwise, or any payment of taxes, fines, penalties, certificates of authority, license fees or otherwise, greater than the amount required by the laws of this state for the same purposes from similar companies organized under the law of such other state and doing business in this state, then all such companies of such other states doing business within this state shall make the same deposit with the state treasurer and shall pay him the same sum for taxes, fines, penalties, certificates of authority, license fee or otherwise as a condition to the issue of a license to them as is required to be paid by the laws of such other state.” Section 51.33, Statutes of 1917.
“Whenever the laws of any other state of the United States or of any foreign country, or the rules, regulations, requirements or impositions thereof, or of any department or officer thereof shall require of insurance companies or fraternal benefit societies organized under the laws of this state and doing business in such state or foreign country or of their agents, any deposit of securities for the protection of their policy holders or otherwise, or any payment of taxes, fines, penalties, certificates of authority, license fees or otherwise, greater than the amount required by the laws of this state for the same purposes from similar companies or fraternal societies organized under the laws of such other state or foreign country and doing business in this state, or shall impose other obligations, prohibitions or restrictions additional to or in excess of those imposed by the laws of this state upon insurance companies or fraternal benefit societies of such other state or foreign country or their agents, then all such companies or fraternal benefit societies of such other states or foreign country doing business within this state shall make the same deposit with the state treasurer and shall pay him the same sum for taxes, fines, penalties, certificates of authority, license fees or otherwise, and the same obligations, prohibitions or restrictions of whatever kind shall be imposed upon them and their agents as a condition to the issuance of a license to them, as is required to be made or paid or is imposed upon companies or societies of this state or their agents by the laws of such other state or foreign country, or the rules, regulations, requirements or impositions thereof, or of any department or officer thereof.” Section 1211--36, Statutes of 1919.
The plaintiff was organized under the laws of the state of New York. Under the laws of New York, during the years 1917 to 1920, inclusive, the state tax department of that state held that the Northwestern Mutual Life Insurance Company, organized under the laws of the state of Wisconsin, must pay a license fee equal to 1 per cent. of the gross amount of its premiums on business done in New York during the year preceding that in which the license was issued. The insurance commissioner of Wisconsin, in fixing the amount of the license fee to be paid by the plaintiff in this state for each of the years 1917 to 1920, inclusive, followed the rule of the New York state tax department in computing the license fee as 1 per cent. of the gross amount of premiums on business done by the plaintiff in Wisconsin during the preceding year, without allowing deductions claimed by the plaintiff for premiums refunded on Wisconsin policies.
After all the payments here in question had been made to the state of Wisconsin, the courts of New York held that the rulings of the state tax department of New York were erroneous, and that the law of New York required that the premiums returned should have been deducted before computing the license fee upon the gross amount of premiums received during the preceding year.
Plaintiff alleges that it paid, under protest, all amounts which it now seeks to recover. It presented its claims to the Legislature which refused to allow the same. This action was then begun, pursuant to the provisions of chapter 285 of the Statutes. Issue was joined. The parties agreed on a statement of facts. Plaintiff then moved for judgment on the pleadings and upon such agreed state of facts.
Miller, Mack & Fairchild, of Milwaukee (J. Gilbert Hardgrove, of Milwaukee, and Louis H. Cooke, of New York City, of counsel), for plaintiff.
Herman L. Ekern, Atty. Gen., and T. L. McIntosh, Asst. Atty. Gen., for the State.
[1] It is elementary that Wisconsin has the right to determine the conditions under which it will permit foreign insurance companies to do business in this state. The state may refuse to permit them to transact business within its boundaries, or it may impose such restrictions or conditions as it sees fit as a prerequisite to permitting them to do business in this state. Among the conditions that may be required is the payment of a license fee. Such license fee may be a fixed and determined amount, or it may be based upon a percentage of premiums received, or it may be fixed under retaliatory statutes like those here in question with reference to the fee exacted of Wisconsin corporations by other states. Wisconsin could have fixed the fees to be paid by plaintiff at the exact amount collected from the plaintiff in each of the years here in question, and plaintiff would have had no right to recover any part of the fees so paid, if it had been a fixed and determined fee whose amount was not made dependent upon the fee exacted in the state of New York. Does the fact that the fee is made dependent on the fee collected in New York change the rule?
The question presented is one of statutory construction in which the court must be guided by the intent of the Legislature, as expressed in the retaliatory statutes quoted in the statement of facts. The...
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