People ex rel. City of Chicago v. Barrett

• Decision Date: 20 June 1923
• Docket Number: No. 13899.,13899.
• Citation: 139 N.E. 903,309 Ill. 53
• Parties: PEOPLE ex rel. CITY OF CHICAGO v. BARRETT et al.
• Court: Illinois Supreme Court

309 Ill. 53

139 N.E. 903

PEOPLE ex rel. CITY OF CHICAGO

v.BARRETT et al.

No. 13899.

Supreme Court of Illinois.

June 20, 1923.

Petition for mandamus by the People, on the relation of the City of Chicago, against Charles V. Barrett and others.

Writ awarded.

Duncan, J., dissenting.Samuel A. Ettelson and Bulkley, More & Tallmadge, all of Chicago, for petitioner.

Roy Massena, of Chicago (George A. Cooke, James G. Condon, Weymouth Kirkland, and Daniel J. Schuyler, Jr., all of Chicago, of counsel), for respondents.

Oscar B. Ryon, Bates, Hicks & Folonie, and Charles S. Deneen, all of Chicago, and Charles E. Woodward, of Ottawa, amici curiae.

CARTER, J.

This is an original petition for mandamus in this court against respondents, constituting the board of review of Cook county, seeking to compel the performance of certain acts on the part of the board which the petition avers the law requires it to do in the proper enforcement of section 30 of the act of 1869 relating to fire, marine and inland navigation insurance companies (Laws 1869, pp. 209, 228), and concerning the taxation of net receipts of such insurance companies not organized under the laws of Illinois, but doing business in this state under charters and the authority of other states or of the foreign governments, and having agencies in Cook county. The respondents filed an answer setting out the action taken by them concerning the listing of net receipts of such insurance companies doing business in Cook county and denying that they had neglected or failed to do their duty under the law. The answer practically admits or denies all the facts alleged in the petition that are material in the determination of the merits of the petition. It was stipulated by the parties that the case be heard on the petition and the answer without evidence. It therefore follows that on this record the questions presented for decision are questions of law.

The issues involved in this case have been elaborately and vigorously discussed in detail and at great length in the various briefs and arguments. Counsel representing certain foreign casualty, surety, and fidelity insurance companieshave filed briefs and arguments, and counsel for foreign fire, marine, and inland nevigation insurance companies have filed a brief and argument as amicicuriae, curiae, and counsel for the city have filed separate reply briefs in answering the arguments of the casualty and fidelity insurance companies, and a separate argument in reply to the brief of counsel for foreign fire, marine, and inland navigation insurance companies.

Section of the Fire, Marine and Inland Navigation Insurance Act of 1869, as amended in 1879, reads as follows:

‘Every agent of any insurance company, incorporated by the authority of any other state or government, shall return to the proper officer of the county, town or municipality in which the agency is established, in the month of May, annually, the amount of the net receipts of such agency for the preceding year, which shall be entered on the tax lists of the county, town and municipality, and subject to the same rate of taxation, for all purposes, state, county, town and municipal-that other personal property is subject to at the place where located; said tax to be in lieu of all town and municipal licenses; and all laws and parts of laws inconsistent herewith are hereby repealed: Provided, that the provisions of this section shall not be construed to prohibit cities having an organized fire department from levying a tax, or license fee, not exceeding two per cent. in accordance with the provisions of their respective charters, on the gross receipts of such agency, to be applied exclusively to the support of the fire department of such city.’ 2 Hurd's Stat. 1921, p. 1803, c. 73.

The amendment to section 30 of the Insurance Act of 1869, as just quoted, makes very slight changes in the original section 30 of the law of 1869, and the amendment in no way bears on the issues involved in this hearing.

Thd petition makes the charge, which is denied by the answer, that a large unmber of insurance companies other than life, operating under authority of other states or of foreign governments, having agences in Cook county subject to amended section 30, have refused or failed to return their net receipts, in accordance with this section, for the purpose of taxation for the year ending April 30, 1920, and for a number of years prior thereto, and that respondents have failed and refused to compel them to make proper returns for such years. The legel question thus presented for the decision, and the chief legal question in this case, is as to what foreign insurance companies are subject to the taxes under this section. Particularly the question is whether or not Lloyd associations, casualty companies, companies doing a reinsurance business, or insuring against lightning, windstorm, tornado, cyclone, explosions, hailstorms, theft, and collision, companies insuring automobiles and other vehicles, are so subject.

The several briefs and arguments presented in this case contain detailed discussions of numerous legislative acts, and the briefs argue all questions raised under these various legislative acts in great detail and at much length and with frequent repetitions in the various briefs. This case was taken for consideration after the rehearing was allowed at the October term, 1922, of this court, and the final briefs were not filed in this court until after the close of the February term, 1923. We do not think it necessary to review the discussion in the briefs at great length or in detail. It seems clear to us that section 30 of the act of 1869 applied only to fire, marine, and inland navigation companies incorporated by the authority of any other state or government. It is also just as clear that the amendment to this section adopted in 1879 had no effect to extend the application of the section to other insurance companies. If other insurance companies are subject to taxation under section 30, it must be by virtue of legislation enacted subsequent to the act of 1869, and not directly amendatory thereof.

The argument of the petitioner is that the scope of section 30 was extended by an act approved May 31, 1879, entitled:

‘An act to compel all insurance companies of other states and countries, doing any kind of insurance business in this state, other than life, to comply with the general fire and marine insurance laws, of this state, and to require deposits of plate glass, accident and steam boiler insurance companies.’

This act has only one section, and the provisions material to the present question are as follows:

‘That every insurance company, or association incorporated by or organized under the laws of any other state, or any foreign government must comply with the requirements of the general insurance laws of this state, governing fire, marine, and inland navigation insurance companies, doing business in the state of Illinois, before it shall be lawful for such company or association to take risks or transact any kind of insurance business in this state, other than that of life insurance, and such companies or associations, and all persons acting as agents thereof, shall be subject to the same penalties prescribed therein, for a violation of any of the provisions thereof.’ 2 Hurd's Stat. 1921, p. 1787, § 36.

It is urged that the construction of the above act in this manner, as argued by counsel for petitioner, is supported by the so-called License Act approved June 4, 1879, and entitled:

‘An act for the better regulation of the business of insurance, and for the protection of the citizens of this state, in their dealings with insurance companies.’ 2 Hurd's Stat. 1921, p. 1786, § 31.

While it is true that acts passed at the same session of the General Assembly should be construed with reference to each other, we do not find that the act just referred to has any real or controlling significance with respect to the issue before the court. The two acts referred to here, passed at the same session, deal with the same subject-matter. However they are to be construed, they necessarily duplicate each other to a large extent. The License Act lays down certain conditions under which foreign insurance companies, associations or partnerships may do business in Illinois. It is clear, however, that the License Act does not extend, or purport to extend, the operation of section 30 of the act of 1869. The act approved May 31, 1879, must be relied upon to extend the application of section 30 of the act of 1869, if such extended application is to be established.

The act approved May 31, 1879, requires ‘all’ insurance companies of other states and countries to comply with the general fire and marine insurance laws of this state. Neither in the title nor in the body of the act is there any reference to taxation or to the provisions of section 30 of the act of 1869. It will be noted that section 30 applies specifically to insurance companies incorporated by the authority of another state or government, while the independent act approved May 31, 1879, refers in its title to ‘all insurance companies' and in its body to insurance companies or associations ‘incorporrated by or organized under the laws of any other state, or any foreign government.’ The latter act is broader in its terms with respect to those conducting insurance business than is the act of 1869, and only by implication, if at all, extends the application of section30 of the act of 1869. Manifestly, the act of 1879 applied to all insurance other than life insurance. The issue here is not as to the companies to which it applied, but rather as to what provisions of then existing law it applied to such companies. We are not permitted to discover tax liability by means of remote implications, and there is neither direct evidence nor clear implication of a legislative intention to extend the application of section 30 to...