State v. Firemen's Fund Ins. Co.

• Decision Date: 28 May 1931
• Docket Number: 3 Div. 944.
• Citation: 223 Ala. 134,134 So. 858
• Parties: STATE v. FIREMEN'S FUND INS. CO.
• Court: Alabama Supreme Court

134 So. 858

223 Ala. 134

STATE v. FIREMEN'S FUND INS. CO.

3 Div. 944.

Supreme Court of Alabama

May 28, 1931

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Suit by the State of Alabama against the Firemen's Fund Insurance Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Thos E. Knight, Atty. Gen., and A. A. Evans, Asst. Atty. Gen., for the State.

Steiner Crum & Weil, of Montgomery, for appellee.

SAYRE J.

Appellee is a corporation chartered under the law of the state of California and doing business in this state. The complaint in this case alleges (we quote so much of count B of the complaint as is necessary to an understanding of the question involved), quoting the statute of California:

"Nineteen Hundred and Twenty-four edition of the California Insurance Laws, Political Code, page 49, section 623. The commissioner must require every company now transacting or proposing to transact insurance business by agent or agents in this state (California), before commencing such business to file in his office a bond in favor of the people of the state of California, to be signed by the company as principal, with two sureties, to be approved by the commissioner, in the penal sum of twenty thousand dollars, the condition of such bond to be as follows: (1) The company and its agents will pay all state, county and municipal property and license taxes, in the manner and at the time prescribed by law; (2) That the company named therein will conform to all the provisions of the revenue and other laws made to govern them; (3) and that the company will promptly pay all fees, assessments, taxes, penalties and fines that may be laid upon or against such company. Such bonds may be sued on in the same manner and shall be subject to the same rules governing official bonds, except that such bonds may be made applicable alike to the first and all subsequent license periods for which renewals of certificates of authority are issued. Any insurance company may deposit with the insurance commissioner, in lieu of such bond, securities of the kind and character set forth in section four hundred twenty-one of the Civil Code of the state of California, in the sum of twenty thousand dollars and shall be held in trust by the insurance commissioner for the fulfilment of the terms and conditions above set forth. Such securities may be withdrawn at any time and new securities of equal value deposited in lieu thereof, and may be withdrawn whenever a bond is filed as provided in this section.

"Political Code, page 1030, section 3664b. Every insurance company or association doing business in this state shall annually pay to the state a tax of two and sixty hundredths per cent upon the amount of the gross premiums and reinsurance in companies or associations authorized to do business in this state; provided, that there shall be deducted from said two and sixty hundredths per cent upon the gross premiums the amount of any county and municipal taxes paid by such companies on real estate owned by them in this state. This tax shall be in lieu of all other taxes and licenses, state, county and municipal, upon the property of such companies, except county and municipal taxes on real estate, and except as otherwise provided in the constitution of this state; provided, that when by the laws of any other state or country, any taxes, fines, penalties, licenses, fees, deposits of money, or of securities, or other obligations or prohibitions are imposed on insurance companies of this state, doing business in such other state or country, or upon their agents therein, in excess of such taxes, fines, penalties, licenses, fees, deposits of money, or of securities, or other obligations or prohibitions, imposed upon insurance companies of such other state or country, so long as such laws continue in force, the same obligations and prohibitions of whatsoever kind must be imposed by the insurance commissioner upon insurance companies of such other state or country doing business in this state; that the defendant is now licensed to do and does a fire insurance business in this state and was so licensed to do and did a fire insurance business in this state during the years 1929 and 1928, and prior thereto; that the defendant has now established and has had established during these years of its operations in the state an agency or agencies through which it has operated its said fire insurance business; that plaintiff, the state of Alabama, does not require from similar companies of other states of the United States for similar purposes, any deposit of securities in this state; that plaintiff, the State of Alabama, charges fire insurance companies of other states operating in this state a tax of one and one half per cent; that the deposit of bond or securities in the sum of Twenty Thousand Dollars ($20,000.00) required by the state of California for a fire insurance company of this state seeking admission to that state is Twenty Thousand Dollars ($20,000.00) in excess of any such requirement of this state from similar companies of other states for similar purposes and the requirement of two and six tenths per cent tax by California from fire insurance companies of this state is one and one tenth per cent in excess of the tax rate required by this state from fire companies of other states. And the plaintiff further avers that by reason of the above quoted insurance laws of the state of California, the home state of the defendant, the defendant comes within the retaliatory insurance law of Alabama as set forth in Code section 8363 and owes the plaintiff as a privilege tax in advance for the business of the year 1929, based on defendant's business of the year 1928 in Alabama, as required by the law of this state, the sum of," etc.

Section 8363 of the Code of this state provides: "Whenever the existing or future...