State v. Phoenix Fire Ins. Co.

• Decision Date: 18 March 1893
• Citation: 21 S.W. 893,92 Tenn. 420
• Parties: STATE v. PHENIX FIRE INS. CO. OF BROOKLYN.
• Court: Tennessee Supreme Court

21 S.W. 893

92 Tenn. 420

STATE v. PHENIX FIRE INS. CO. OF BROOKLYN.

Supreme Court of Tennessee.

March 18, 1893

Appeal from circuit court, Davidson county; W. K. McAllister, Judge.

Cause submitted on agreement of facts between the state of Tennessee, styled plaintiff, and the Phenix Fire Insurance Company of Brooklyn, N. Y., defendant. Defendant had judgment, and plaintiff appeals. Reversed.

The Attorney General, for the State.

Vertrees & Vertrees and P. D. Maddin, for appellee.

WILKES J.

This cause was tried in the circuit court of Davidson county before Hon. W. K. McAllister, J., upon an agreed statement of facts. Judgment was rendered against the state, from which it appealed, and, through the attorney general, has assigned errors. The judge in the court below delivered a written opinion, in which the facts are set out at length, the conclusions of the trial judge are stated, and the reasons upon which these conclusions are based are given, with the force and clearness usual with that learned judge. The opinion is as follows:

"State of Tennessee v. Phenix Fire Insurance Co.

"This case is submitted to the court upon an agreed statement of facts, and the purpose of the litigation is to test the liability of foreign fire insurance companies to the payment of certain privilege taxes and official fees. The following facts appear in the printed stipulation of counsel, to wit: That defendant is a fire insurance company, chartered by, and organized under, the laws of New York, with its chief office and place of business in Brooklyn, in said state. Said company is engaged in transacting a fire insurance business in this state, and has local agents employed in twelve counties of the state. During the years in which the defendant company has been engaged in its business in Tennessee, it has complied with all the laws of the state governing or relating to fire insurance companies. It has filed a copy of its charter and a power of attorney to acknowledge service of process with the treasurer of the state, in accordance with the insurance act passed by the legislature of 1891. It has also obtained from the treasurer of the state the certificate or authority to do business, and has obtained license from him for its local agents, and has caused certified copies thereof to be deposited with the county court clerk of the counties in which it does business, as the laws require. It has in all respects complied with the laws of Tennessee, as administered by the bureau of insurance. There are eighty-five foreign insurance companies doing business in the state, and the aggregate amount of taxes and fees paid by them during the year 1891 to the state and to the commissioner of insurance was $48,065.77. The defendant company paid of this amount, in taxes and fees, during said year, the sum of $618.25. Now, in addition to doing all these things, it is insisted, on behalf of the state, that under the provisions of the act of March 26, 1891, and section 8 of the revenue act of the extra session of 1891, the defendant is required to file a copy of its charter with the secretary of state, and to cause an abstract thereof to be recorded in the register's office of every county in which it transacts business, and to pay to the state a privilege tax of ten dollars, and to the county register and secretary of state a fee of three dollars each for filing and recording its charter.

"The questions submitted for the determination of the court are, viz.: First. Whether or not the defendant is liable for the payment of a privilege tax of ten dollars, which the state claims by virtue of the act which is chapter 25 of the extra sesson of 1891. Second. Whether or not the defendant, a foreign fire insurance company, which has complied with the laws administered and executed by the bureau of insurance, and filed a copy of its charter with the commissioner of insurance for 1891-92, is also obliged or required to file a copy thereof with the secretary of state. Third. Whether the defendant, having caused the license issued to its agents by the commissioner of insurance to be filed with the county clerk, of the respective counties, is also obliged or required to cause an abstract of its charter to be recorded in every county in which its agents do business. Fourth. Whether the said tax and fees demanded by the secretary of state are required by law to be paid.

"The settlement of these questions depends upon a proper construction of the facts of assembly out of which the present controversy has arisen. The act upon which the state relies in support of the position that the charters of foreign fire insurance companies are required to be filed in the office of the secretary of state is found in chapter 122 of the Acts of 1891, which is entitled 'An act to amend chapter 31 of the acts of 1877, declaring the terms on which foreign corporations organized for mining or manufacturing purposes may carry on their business,' etc., 'so as to make the provisions of said act apply to all foreign corporations that may desire to own property or do business in the state.' The second section of the act of 1891 provides, viz. that each and every corporation created or organized by or under any government other than that of this state, for any purpose whatever, desiring to own property or carry on business of any kind of character in this state, shall first file in the office of the secretary of state a copy of its charter, and cause an abstract of same to be recorded in each county in which such corporation desires or proposes to carry on its business, etc., as now required by section 2 of chapter 31 of Acts of 1877. It is conceded by counsel for defendant that this language is broad enough to sustain the contention of the secretary of state, and to include foreign fire insurance companies, if nothing is to be considered but the language of this act. It provides, in terms, that the act of 1877, c. 31, shall be so 'amended and enlarged' as that its provision shall apply to all foreign corporations, and section 2 is expressly applied to all foreign corporations desiring to own property or carry on business of any kind or character in this state. The argument on behalf of defendant is that foreign fire insurance companies, although within the letter of the statute, are yet not within the statute, because not within its spirit, nor within the intention of its makers. There are cases which require us to disregard the letter of a statute, when they are manifestly not comprehended within its spirit, nor within the intention of its framers. A forcible illustration of this rule is found in the case of Rector, etc., of Holy Trinity Church v. U. S., 143 U.S. 457, 12 S.Ct. 511, (recently decided by the supreme court of the United States.) That case was a criminal prosecution based upon what is known as the 'Alien Contract Labor Law,' which prohibited the importation of any foreigner under contract to perform labor or service of any kind. The plaintiff in error was a religious society incorporated under the laws of New York, and after the passage of said act employed E. Walpole Warren, an alien residing in England, as the pastor and rector of such church, who thereupon removed to the United States, and entered upon such service. The circuit court held that the contract was within the prohibition of the statute, and rendered judgment against the church for a heavy penalty. On appeal to the United States supreme court the case was reversed in an opinion by Judge Brewer, who said: 'It must be conceded that the act of the corporation is within the letter of the statute, for the relation of rector to his church is one of service, and implies labor on the one side, with compensation on the other. Not only are the general words "labor" and "service" both used, but also, as if to guard against any narrow interpretation, and emphasize a breadth of meaning to them, is added "of any kind;" and, further, the fifth section of the act makes specific exceptions, among them professional actors, artists, lecturers, singers, and domestic servants, which strengthens the idea that every other kind of labor or service was intended to be reached by the first section. It is a familiar rule that a thing may be within the letter of the statute, and yet not within the statute, because not within its spirit, nor within the intention of its makers. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute,-words broad enough to include an act in question,-and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act. As said in Stradling v. Morgan, Plow. 205: "From which cases it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehended all things in the letter, they have expounded to extend to but some things, and those which generally prohibit all people from doing such an act they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only, which

...