State ex rel. Baldwin v. Ins. Co. North America

• Citation: 115 Ind. 257,17 N.E. 574
• Parties: State ex rel. Baldwin, Atty. Gen., v. Insurance Co. North America.
• Decision Date: 20 June 1888
• Court: Supreme Court of Indiana

115 Ind. 257

17 N.E. 574

State ex rel.

Baldwin, Atty. Gen.,

v.Insurance Co. North America.

Supreme Court of Indiana.

June 20, 1888.

Appeal from circuit court, Marion county; J. G. Adams, Judge.D. P. Baldwin, Atty. Gen., and David Turpie, for appellant. Harris & Calkins and Finch & Finch, for appellee.

Howk, J.

In this case the only error assigned here by the state of Indiana, plaintiff below, is the sustaining of defendant's demurrer to plaintiff's complaint herein. In its complaint the state alleged that defendant was an insurance company organized in the state of Pennsylvania, and doing business within the state of Indiana, and as such governed by the laws of this state. That on March 3, 1877, an act was duly passed by the legislature, and approved by the governor of this state, entitled “An act to amend section 1 of an act entitled ‘An act regulating foreign insurance companies doing business in this state, prescribing the duties of the agents thereof, and of the auditor of state in connection therewith, and prescribing penalties for the violation of the provisions of this act,’ approved December 21, 1865, and adding supplemental sections thereto.” That section 3 of the above-entitled act of March 3, 1877, reads as follows: “When, by the laws of any other state, any taxes, fines, penalties, licenses, fees, deposits of money or securities, or other obligations or prohibitions, are imposed upon insurance companies of this or other states, or their agents, greater than are required by the laws of this state, then the same obligations and prohibitions, of whatever kind, shall in like manner, for like purposes, be imposed upon all insurance companies of such states, and their agents. All insurance companies of other nations, under this section, shall be held as of the state where they have elected to make their deposit and establish their principal agency in the United States.” Now known as section 3773, Rev. St. 1881. And plaintiff averred that on the day and year last named, and ever since, the law of this state for the taxation of foreign insurance companies has been as follows: “Sec. 8. Every insurance company not organized under the laws of this state, and doing business therein, shall, in the months of January and July of each year, report to the auditor of state, under oath of the president and secretary, the gross amount of all receipts received in the state of Indiana, on account of insurance premiums for the six months last preceding, ending on the last days of December and June of each year, and shall, at the time of making such report, pay into the treasury of the state the sum of three dollars on every one hundred dollars of such receipts, less losses actually paid within the state.” That the section last quoted is section 8 of “An act supplementary and amendatory of ‘An act to provide for a uniform assessment of property, and for the collection and return of taxes thereon,’ approved December 21, 1872,” approved March 8, 1873. That the license fee required of foreign corporations doing business within this state is $30 per annum. That since the passage of the aforesaid act of March 3, 1877, the license fee imposed by the legislature of the state of Pennsylvania upon foreign insurance companies doing business within that state had been $500 per annum, as shown by the statute of that state entitled “An act to revise, amend, and consolidate the several laws regulating the licensing of foreign insurance companies,” approved April 11, 1868, of which so much as pertained to license, being section 6 of such act, was pleaded specially, and set out at length in plaintiff's complaint herein. That by an act of the legislature of the state of Pennsylvania entitled “An act to establish an insurance department,” approved March 3, 1873, the following is the rule of taxation of foreign insurance companies doing business in the state of Pennsylvania, to-wit: “No person shall act as agent or solicitor in this state of any foreign insurance company of another state or foreign government, in any manner whatever relating to risks, until the provisions of this act have been complied with on the part of the company or association, and there has been granted to said company or association, by the commissioner, a certificate of authority showing that the company or association is authorized to transact business in this state, and it shall be the duty of every such company or association, authorized to transact business in this state, to make report to the commissioner in the month of January of each year, under oath of the president or secretary thereof, showing the entire amount of premiums of every character and description received by said company or association in this state during the year or fraction of a year ending with the 31st day of December preceding, whether said premiums were received in money or in the form of notes, credits, or any other substitute for money, and pay into the state treasury a tax of three per centum upon said premiums, and the commissioners shall not have power to grant a renewal of the certificate of said company or association until the tax aforesaid is paid into the state treasury.” And plaintiff further averred that defendant had wholly failed and refused to comply with the provisions of the statute of this state above set forth, in this, to-wit, defendant had failed to pay into the treasury of this state, since March 3, 1873, the sum of $500 per year for a license to transact business within this state. That there was due the state of Indiana, for unpaid license fees, the sum of $2,000. That defendant had also failed to pay taxes into the state treasury at the rate of 3 per cent. per annum upon its gross receipts. That since the said statute took effect the gross receipts of premiums by defendant, collected within the state of Indiana, had amounted to the sum of $200,000. That the taxes thereon at 3 per cent., which defendant ought to have paid, amounted to $6,000, and the sum actually paid was $2,500, leaving the sum of $3,500, due and owing to the state of Indiana, as unpaid taxes, and wholly unpaid. Wherefore, etc., defendant's demurrer to plaintiff's complaint assigned the following grounds of objection thereto, namely: (1) Because the complaint did not state facts sufficient to constitute a cause of action; (2) because plaintiff had not the legal capacity to sue on the relation of its attorney general, but the action, if at all maintainable, should have been brought upon the relation of the auditor of state; and (3) because several causes of action have been improperly united, to-wit, for taxes and for license fees. This demurrer was sustained by the court, and, plaintiff excepted, and, declining to amend or plead further, the court adjudged that it take nothing by its suit herein, etc.

In considering the question of the sufficiency of plaintiff's complaint, we will notice the grounds of objection thereto assigned by defendant in the inverse order of their statement in its demurrer. The judgment below does not indicate that the demurrer was sustained by the court because several causes of action were united in the complaint, improperly or otherwise. But we may well assume that the complaint was not held bad because of the alleged misjoinder of causes of action therein; for, if the court had sustained the demurrer on the ground of such alleged misjoinder, it would have been the duty of the court, under the statute, to have caused two actions to be docketed between the parties, and that each should stand as a separate action, which was not done. Section 340, Rev. St. 1881. Defendant's learned counsel claim that the second cause of demurrer was well assigned, or, in other words, that the action was not well brought upon the relation of the attorney general, and that it could only be brought and maintained, under the statute, upon the relation of the auditor of state. In support of this claim counsel cite and rely upon the sixth clause of section 2 of the above entitled act of March 3, 1877, (now known as section 3772, Rev. St. 1881,) which clause of the statute reads as follows: “ Sixth. The auditor of state shall also have power to institute suit and prosecutions, either by the attorney general, or such other attorneys as he may designate, for any violation of any of the provisions of this act.” Defendant's counsel place too much stress, we think, upon this statutory provision, when they claim that it repeals by implication the power of the attorney general to sue, in the name of the state, under the provisions of section 5668, Rev. St. 1881, in force since March 10, 1873. The utmost that can be said in regard to the effect of the clause above quoted of section 3772, upon prior legislation, is that if the case under consideration were a suit wherein a relator was necessary, and which could only be brought or maintained upon the relation of a state officer, after the act of March 3, 1877, took effect, either the auditor of state or the attorney general would have been a competent relator herein. We are of opinion, however, that no relator was necessary to enable the state to bring or maintain this action. Whenever the state has or claims to have a cause of action, which it seeks to enforce in any of its courts, in the absence of any statute to the contrary, we think that the action may be brought in the name of the state of Indiana, as plaintiff, without any relator; and especially so where, as here, the complaint is signed by the attorney general of the state. Of course, when the state becomes a suitor in the courts, it is as much bound by the laws of the land, by the rules of pleading and practice, and by the judgments and decisions of such courts, inferior or superior, as any other suitor. It may well be doubted whether the second cause of demurrer assigned by the defendant, under our decisions, properly presented the question of the right or power of the...