People ex rel. American Surety Co. v. Wemple — 12 N.Y.S. 271

Majority

p. 271

People ex rel. American Surety Co. v. Wemple, Comptroller.

(Supreme Court, General Term, Third Department.

December 12, 1890.)

Headnote

1. Taxation—Surety Companies—Insurance Companies.

A company incorporated for guarantying the fidelity of persons holding places of public or private trust, although it does not in its name designate itself an insurance company, is taxable under Laws N. Y. 1881, c. 361, § 5, which imposes a tax on premiums of every insurance company except life insurance companies and mutual benefit associations.

2. Same—Exemption.

The provision of Laws 1886, c. 679, § 4, taxing real property of fire and marine insurance companies, that “the personal property, franchises, and business of all insurance companies” shall be exempt from taxation, except as in that act prescribed, applies only to fire and marine insurance companies, and does not exempt such surety company from taxation.

Certiorari on the relation of the American Surety Company to Edward Wemple, comptroller of the state, to review an assessment for taxation of relator as an insurance company.

Argued before Learned, P. J., and Landon and Mayham, JJ.

Alexander & Green, (John J. Crawford, of counsel,) for relator. Charles F. Tabor, Atty. Gen., (I. H. Maynard, Dep. Atty. Gen., of counsel,) for defendant.

The relator is incorporated under chapter 463 of the Laws of 1853, and amendatory acts. The second department of the first section of that act, as amended by chapter 485, Laws 1879, includes companies for guarantying the fidelity of persons holding places of public or private trust; and that is the business of the relator, as appears by its certificate. It is quite clear then, by the relator’s own certificate, and by the statutes above cited, that it is an insurance company, although it does not so designate itself in its name. But the statutes mention the guarantying fidelity as one branch of insurance for which companies may be incorporated. Section 5, c. 361, Laws 1881, imposes a tax of eight-tenths of 1 per cent, of gross amount of premiums of every insurance company, except life insurance companies and purely mutual beneficial associations. This relator is not one of the excepted companies, and is therefore liable to the tax, unless relieved by some other statute. The relator relies on

p. 272

chapter 679, Laws 1886, § 4. The latter part of that section provides that tli personal property, franchise, and business of all insurance companies shall he exempt from taxation, except as provided in the act; hence the relator claims to be exempt from the tax above mentioned. The relator’s conclusion is correct if that section really includes all insurance companies. To understand its meaning we must examine the whole act. The title is: “An act to provide for the taxation of Are and marine insurance companies.” Thus, the object as expressed in the title is limited to tire and marine insurance companies. Section 1 enacts that every tire and marine insurance company shall pay a tax of one-half of 1 per cent, on the gross amount of business. Section 2 enacts that every such insurance company shall make an annual return of the amount of premiums. Section 3 imposes a penalty on any officer of a company required to make such return who neglects to do so, and gives an action to recover the tax. Section 5 declares the taxes imposed shall be paid into the treasury for account of the general fund. Section 4 begins by declaring that “the lands and real estate of such insurance companies shall continue to be assessed and taxed,” etc. Then follows the clause relied on by the relator: “But the personal property, franchise, and business of all insurance companies shall be exempt from all assessment or taxation, except as in this act prescribed.” Mow, no argument is needed to show that this act has reference only to tire and marine insurance companies. The very section-4 begins by stating that the lands and real estate of such—that is, fire and marine insurance companies—shall be assessed and taxed. This, of course, has no reference to such a company as the relator. Then it proceeds: “But the personal property, franchise, and business of all insurance companies,” etc. Mow, although the word “such” is omitted before the wurds “insurance companies,” yet the meaning is plain. The statute was dealing solely with fire and marine insurance companies, and its provisions apply to those companies only. This is made more plain by the latter part of this section, where it says “shall hereafter be exempt from all assessments and taxation, except as in this act prescribed.” Mo assessment or taxation is prescribed in the act for any insurance companies other than fire and marine. When, therefore, the act declares that companies shall be exempt from all assessment or taxation except as in the act prescribed, it evidently referred only to those companies for which assessment and taxation was prescribed by the act. The final clause of the section enforces this view. It provides that the section shall not affect the fire department tax. This is a tax which has nothing to do with such companies as the relator.

We think there is no question as to the meaning of the statute. The language of all the sections points plainly to fire and marine insurance companies as the only subjects of the legislation. It substituted a new rate of taxation in respect to those companies for previous rates. Having done this it exempted those companies (except as to land) from other taxation. But it did not establish any new rate of taxation for such companies as the relator, and did not exempt such companies as the relator from other and existing taxation. Whether the word “such” was omitted by stratagem or by accident, or whether the person who drafted the statute thought its meaning sufficiently clear without that word, we do not know. But we have no doubt that the action of the comptroller was legal and correct, and his proceedings, are confirmed, with $50 costs and disbursements. All concur.