The Home Ins. Co. v. Swigert
| Decision Date | 20 November 1882 |
| Citation | 1882 WL 10469,104 Ill. 653 |
| Parties | THE HOME INSURANCE COMPANYv.CHARLES P. SWIGERT, Auditor. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Sangamon county; the Hon. CHARLES S. ZANE, Judge, presiding.
The Home Insurance Company of New York, the appellant, brought an action in the Sangamon circuit court, against Charles P. Swigert, the appellee, to recover money paid by the company to appellee, as Auditor, under section 29 of the general Insurance act, commonly known as the “reciprocity provision.”
Counsel have embodied in a written stipulation the material facts upon which the rights of the parties depend, from which it appears the plaintiff is an insurance company incorporated under the laws of New York; that during the years 1880 and 1881 it had established agencies and transacted the business of insurance within the State of Illinois, and had fully complied with section 22 of the law regulating the business of insurance, approved March 11, 1869; that during the year 1881 the plaintiff had appointed three hundred and one agents in the State of Illinois, and that the Auditor of Public Accounts had issued certificates of authority to each of such agents, as provided by said section; that the plaintiff, in the month of January, 1882, filed with the defendant, as Auditor of Public Accounts, its annual statement, as required by said Auditor, showing, among other things, the amount of premiums received by the plaintiff in said State during the year 1881, and that such report was satisfactory to said Auditor; that the statement required by said section was filed with the said Auditor, showing the amount of premiums received by said company through its agencies in this State, for the year 1880; that the amount of premiums so received in gross was the sum of $193,443.80; that the plaintiff, in January, 1882, made proper application to the defendant, as Auditor, for the renewal of the certificates for each and all of its said agents located in said State of Illinois; that such application was made after the filing of its annual statement in accordance with the provisions of said section 22, and that the Auditor refused to renew such certificates, for the sole reason that the plaintiff had failed and refused to pay a tax of eight-tenths of one per cent upon the gross amount of the annual premiums paid to such plaintiff upon its business transacted in the State of Illinois for the year 1880; that the gross amount of such premiums was $193,443.80, and that the tax thereon of eight-tenths of one per cent was $1547.55; that on the 31st day of January, 1882, the defendant, as such Auditor, rendered the plaintiff an account, of which the following is a copy:
“STATE OF ILLINOIS, AUDITOR'S OFFICE,
SPRINGFIELD, Jan. 31, 1882.
Home Insurance Co., New York;
To Charles P. Swigert, Auditor P. A.
File mark on back of paper:
Home Insurance Co., statement of accts. with Auditor, Jan'y 31, '82, $1577.55.”””” That on said 31st day of January the plaintiff paid to the said defendant said tax of $1547.55; that at the time of such payment the plaintiff denied the validity of such tax, and made such payment under protest, and further, that such payment was made under the following stipulation:
“It is hereby stipulated and agreed between C. P. Swigert, Auditor of the State of Illinois, and the Home Insurance Company, of the State of New York, that said company shall pay to the said Swigert, under protest, the sum of $1547.55, being the amount claimed by said Auditor as due from said company for taxes for the year 1880, being eight-tenths of one per cent upon the gross business or premiums received by said company upon its business transacted in said State of Illinois during the year 1880, under section 29 of the general Insurance law of said State, passed and approved by the legislature thereof March 11, 1869, said sum of money to be held by said Swigert to abide the result of an action to be brought by said company against him to recover back said sum, and to test the validity of the law,--it being understood and agreed between the parties hereto that said action shall be prosecuted without unreasonable delay to final judgment in the Supreme Court of said State of Illinois, and both parties shall abide said judgment.
+--------------------------------------------+
¦(Signed)¦CHAS. P. SWIGERT, Auditor P. A. ¦
+--------+-----------------------------------¦
¦ ¦HOME INSURANCE CO., N. Y., ¦
+--------+-----------------------------------¦
¦ ¦by Eugene Cary, Sp'l Ag't. ¦
+--------+-----------------------------------¦
¦ ¦HOWARD INSURANCE CO., N. Y., ¦
+--------+-----------------------------------¦
¦ ¦by Eugene Cary, Sp'l Ag't. ¦
+--------+-----------------------------------¦
¦ ¦GERMANIA AND HANOVER INS. COS., ¦
+--------+-----------------------------------¦
¦ ¦by Geo. D. Gould, Atty. in fact. ”¦
+--------------------------------------------+
That the said defendant claims authority to assess and collect said tax of eight-tenths of one per cent under and by virtue of the laws of the State of Illinois and the laws of the State of New York, and more particularly by virtue of section 29, of chapter 73, of the Revised Statutes of the State of Illinois, entitled “reciprocity,” and under the act of the General Assembly of the State of Illinois, approved June 4, 1879, 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,” and such other laws of the State of Illinois as were then in force, and also under and by virtue of the laws of the State of New York, more particularly because of an act entitled “An act to provide for raising taxes for the use of the State upon certain corporations, joint stock companies and associations, passed June 1, 1880, three-fifths being present;” that during the years 1880 and 1881, insurance companies incorporated under the laws of the State of Illinois had agencies and transacted insurance business in the State of New York, and were required to comply with said law of New York above referred to.
Section 5 of the New York act of June 1, 1880, above referred to, is as follows:
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