People ex rel. American Surety Co. v. Wemple — 34 N.Y. St. Rep. 713

Majority

p. 713

The People ex rel The American Surety Company, v. Edward Wemple, Comptroller.

(Supreme Court, General Term, Third Department,

Filed December 12, 1890.)

Headnote

1. Taxes—Corporations—Insurance companies.

The American Surety Company is an insurance company, although it does not so designate itself in its name, and is liable to taxation under § 5 of chap. 361, Laws 1881.

3. Same—Exemptions—Laws 1886, chap. 679, § 4.

The exemption from taxation other than that provided for therein, in § 4 of chap. 679, Laws 1881, applies only to Are and marine companies, and does not exempt such companies as relator from other and existing taxation.

Certiorari to review an adjustment and assessment of taxes made by the comptroller upon the relator under the corporation tax laws.

The relator claims that it is not an insurance company within the meaning of § 5 of chap. 542, Laws 1880, and that if it is, it is exempt from any taxes on its premiums or business by virtue of § 4 of chap. 679, Laws 1886.

John J. Crawford, for app’lt; I. H. Maynard, for resp’t.

The relator is incorporated under chap. 463 of the Laws of 1853 and amendatory acts. The second department of the first section of that act, us amended by chap. 485, Laws of 1879, includes companies for guaranteeing the fidelity of persons holding places of public or private trust. And tl^at 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 guaranteeing fidelity as one branch of insurance for which companies may be incorporated.

Section 5 of chap. 361, Laws of 1881, imposes a tax of eight-tenths of one 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 chap. 679, Laws of 1886, § 4. The latter part of that section provides that the personal property, franchise and business of all insurance companies shall be 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 fire and marine insurance companies.” Thus the object as expressed in the title is limited.to fire and marine insurance companies; Section 1, enacts that every fire and marine insurance company shall pay a tax of one-half of one per cent, on the gross amount of business.

p. 714

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.”

Now no argument is needed to show that this act has reference only to fire and marine insurance companies. The very § 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. Now although the word “ such” is omitted before the words insurance companies, yet the meaning is plain.

The statute was dealing solely with fire and marine insurance companies and its provisons 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 assessment and taxation, except as in this act prescribed.”

No 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 it 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.

LANDON and Mayham, JJ., concur.