State v. Mut. Life Ins. Co. of New York

• Decision Date: 09 December 1910
• Docket Number: No. 21,409.,21,409.
• Citation: 93 N.E. 213,175 Ind. 59
• Parties: STATE v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Indiana Supreme Court

175 Ind. 59

93 N.E. 213

STATE

v.MUTUAL LIFE INS. CO. OF NEW YORK.

No. 21,409.

Supreme Court of Indiana.

Dec. 9, 1910.

Appeal from Superior Court, Marion County; J. L. McMaster, Judge.

Action by the Mutual Life Insurance Company of New York against the State of Indiana. From a judgment for plaintiff, defendant appeals. Reversed in part, and remanded.James Bingham, W. H. Thompson, E. M. White, and A. G. Cavins, for appellant. Chas. W. Smith, J. S. Duncan, H. H. Hornbrook, A. P. Smith, Wm. L. Taylor, and R. L. Willson, for appellee.

JORDAN, J.

This action was instituted upon a complaint in two paragraphs by the Mutual Life Insurance Company of New York, as plaintiff, against the state of Indiana in the Marion superior court, the latter sitting as a court of claims under and by the authority of the provisions of section 1485, Burns' Ann. St. 1908, as amended in 1895 (Acts 1895, p. 231). By the first paragraph of the complaint the plaintiff insurance company (appellee herein) seeks to recover as a claim against the state $1,296.76 as principal and $1,726.84 interest, all paid by it in to the Treasurer of the state of Indiana involuntarily and under protest as alleged in the complaint. The principal sum demanded arises out of money paid by appellee to one James H. Rice, Auditor of the state of Indiana, as taxes for the first half of the year 1884, being $3 on every $100 of premiums collected by appellee within the state of Indiana, which sum it appears that said Auditor failed to pay in to the Treasurer of the State. The payment by appellee of the principal and interest was made on December 11, 1906, and interest was computed and charged by the state from the year 1884 to December 11, 1906. By the second paragraph of the complaint the plaintiff seeks to recover back from the state the interest only which it paid upon the principal. Appellant demurred to each paragraph of the complaint for want of facts. Its demurrer was overruled, to which ruling of the court it excepted. It then answered the complaint specially in four paragraphs. No general denial was filed. Appellee demurred to each paragraph of the answer. Its demurrer was sustained to the second, third, and fourth paragraphs of answer and appellant refused to plead further. Appellee's demurrer to the first paragraph of the answer was overruled, and it refused to further plead. Thereupon the court rendered a judgment in favor of appellee against the state. From the judgment appellant has appealed directly to this court under the provisions of section 1489, Burns' Ann. St. 1908, same being section 5 of said act of 1889, and relies for reversal of the judgment below upon the alleged errors that the court erred in overruling its demurrer to each paragraph of the complaint, and in sustaining the demurrer of appellee to the second, third, and fourth paragraphs of the answer. The complaint to some extent may be said to state conclusions of the pleader instead of facts.

In the first paragraph thereof the plaintiff alleges: That on and prior to the 8th day of March, 1848, it was and ever since has been and yet is a corporation organized and acting under and pursuant to the laws of the state of New York. “That ever since the said 8th day of March, 1848, it has been engaged in conducting the business of life insurance, in the state of Indiana under authority granted to it by the properly constituted authorities of said state, and that upon the enactment of the first statute of said state so requiring, it made application to the Auditor of the state of Indiana, as a foreign corporation, for permission to do business in the state of Indiana. That upon such application this plaintiff took every step and did everything which said Auditor of State for the state of Indiana requested and required as a condition precedent to its right to do business in said state of Indiana, and thereupon said Auditor of State for the state of Indiana granted unto this plaintiff his certificate of authority for this plaintiff to do business in the state of Indiana as a foreign insurance company. That from time to time, ever since said date, and at the times provided by the statutes of the state of Indiana from time to time in force, it has applied to the Auditor of State for the state of Indiana for a renewal of such certificate of authority to do business in the state of Indiana, and at the time of each of said applications this plaintiff took every step and did everything which said Auditor of State for the time being requested or required from it, as a condition precedent to its doing business in the state of Indiana, as a foreign life insurance company, and in every such instance said Auditor of State has granted unto this plaintiff his certificate of its right to do business in the state of Indiana as a foreign insurance company. That ever since said 8th day of March, 1848, this plaintiff has been actively engaged in the business of life insurance in the state of Indiana under such certificates, and is yet so engaged in doing a life insurance business in the state of Indiana under the last certificate of such authority to do business in the state of Indiana by said Auditor of State issued to it. That from the date of its beginning to do business in the state of Indiana under the authority of the certificates so issued to it by the Auditors of State for the state of Indiana, as above set forth, up to and including the year 1905, the Auditor of State for the state of Indiana construed the statutes of said state of Indiana as authorizing him to receive and collect from this plaintiff, and from other foreign insurance companies doing business in the state of Indiana, all taxes and charges levied and demanded from them under the laws of the state of Indiana for the privilege of so doing business in the state of Indiana, for the purpose of paying the same into the office of the Treasurer of State for the state of Indiana, and said Auditors of State for the state of Indiana from time to time demanded and received from this plaintiff and all other foreign insurance companies doing business in the state of Indiana (of which during the year 1884 there were 122, and which steadily increased to the year 1905 to the number of 162) except 5, under the construction so placed by him upon such statutes, the taxes and charges by him computed as being due, and from this plaintiff under such statutes for the privilege of doing such business in the state of Indiana, and in pursuance of such demand this plaintiff paid all such taxes and dues to said Auditors of State from the date of its admission to do business in the state of Indiana up to and including the year 1905; and said Auditor of State paid the same (except possibly as hereinafter stated) to the Treasurer of State, who received the sums from said Auditor of State, and placed said sums of money in the funds of the state. And this plaintiff further says that as required by the statutes of the state of Indiana, from time to time in that behalf enacted and in force, the respective Auditors of State made stated reports to the Governor of the state of Indiana of the business transacted in the office of the Auditor of State during the period covered by said reports respectively. That said reports in every instance showed the fact that said Auditors of State, under the construction by them placed upon such statutes, had collected from all such foreign insurance companies except five the taxes due from them to the state of Indiana, and had charged himself therewith on his account at the time of the receipt thereof, and had credited himself with the payment thereof to the Treasurer of the State at the time of making such payments to the Treasurer of State. That at the meetings of the General Assembly of the state of Indiana printed copies of such reports of the Auditor of State were by the Governor transmitted both to the Senate and House of Representatives and printed copies thereof were forwarded to each member of both houses. That the Chief Executive of the state and the legislative department of the government were in this manner fully apprised of the construction placed upon the statutes of the state, enacted in that behalf by the Auditor of State, and of his acts and conduct in receiving such taxes and in paying the same to the Treasurer of the State.

“In addition to the delivery of copies of the said printed reports to the Governor and the members of the General Assembly of the state of Indiana, many hundreds of the copies of said reports were distributed to private citizens throughout the state. And this plaintiff further avers that in certain of said years the State Board of Tax Commissioners, who were charged with the duty of preparing blank forms of reports of said insurance companies, to be by them made to the Auditor of State as a basis for estimating the taxes to be paid by them, in preparing such form of reports, caused to be printed on the back thereof as a copy of the statute in that behalf enacted: ‘Sec. 83. (Acts of 1881.) 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 next preceding, and shall, at the time of making such report, pay the sum of three dollars on every one hundred dollars of such receipts, less losses actually paid within the state; and any insurance company failing or refusing for more than thirty days to render an accurate account of its premium receipts, as above provided, and pay the required tax thereon, shall forfeit one hundred dollars for each additional day such report and payment shall be delayed, to be recovered in an action in...