New York Life Insurance v. Burbank

Morling, J. As a preliminary statement in general terms of the question submitted, it may be said to be: Should the term "gross amount of premiums received by it * * * for business done in this state,” in Section 1333, Code Supplement, 1913, requiring insurance companies of plaintiff’s class to pay a tax of 2|4 per cent thereon, be construed to mean the total amount of premiums computed at table or policy rates at their face, or should it be construed to mean that amount less such sums as the company has during the year abated from premiums or paid in cash to policyholders for dividends and surrender values % It was stipulated that plaintiff is a mutual life insurance company, organized under the laws of New York, having no corporate stock, and conducting its business on the mutual plan only; "that its business is conducted on a level premium plan,—that is to say, that the only premium required * * * is collected in advance, and is calculated on such basis it will not have to be increased during the life of the policy. The established or calculated premium is made up of two factors: First, the net mathematical premium which, invested at an assumed rate of interest, will provide sufficient funds to meet the obligations of the respective policies, not including any dividends. To this factor is added a factor known as ‘loading,’ which is to provide for unforeseen contingencies, excess mortality, taxes, and operating expenses. That neither the policy contract nor charter contain any direction that the board of di *201 rectors shall declare dividends, and, so far as the individual policyholder is concerned, he has no control over the question whether or not dividends shall be declared, but when declared, has a right, under his contract, to have them distributed in accordance with the policy contract. Under the mutual plan, whenever, by reason of excess interest earnings, savings in expenses, or savings in mortality, or any other source of profit, a surplus is earned, it is held for the benefit of all the policyholders, and may be assigned by those vested with authority so to do, and distributed in whole or in part to the policyholders. This distribution, when and if made, is commonly called dividends to policyholders, and is paid or credited to the policyholder in accordance with the provisions in the policy contracts. ’ ’ By plaintiff’s charter, its officers are required, as soon as practicable after the 31st day of December of each year, to cause a statement of its affairs to be made up, and to "ascertain the surplus earned by it during said year, which said ascertainment of surplus shall be binding and conclusive upon every person entitled to share in its surplus.” By the terms of plaintiff’s policies, the proportion of divisible surplus accruing to them shall be ascertained annually, and, beginning at the end of the second year, such surplus as shall have been apportioned by the company to the policy shall, at the option of the insured, be either-paid in cash or applied toward payment of premiums or left to accumulate at interest, credited annually, and either withdraw-able in cash at any time or at a specified time, as provided in the contract. At the table or contract rates, the amount of premiums collected by plaintiff on its Iowa business in 1920 was $1,611,198.64. Included in this sum were the following items which the plaintiff claims should have been deducted in ascertaining the sum upon which it was required to pay the 2y2 per cent tax: 1. Annual dividends actually paid in cash, $10,354.21. 2. Dividends used by way of deduction from the stipulated premiums, $104,-628.59. 3. Deferred dividends paid in cash, $216,221.48. 4. Amounts paid to policyholders in cash on surrender of policies, $245,894.68. These sums were allowed or paid to Iowa policyholders, and plaintiff seeks to recover the amount of the tax paid upon them. Plaintiff’s contention is that it conducts its business on the *202 principle of carrying insurance at cost; that it is the duty of its officers to ascertain yearly the company’s condition, determine the excess of income, and assign for distribution to policyholders “such portion of its surplus as they may deem consistent with conservative business management;” that, “after the action by the board of directors in assigning the surplus for distribution to policyholders, the company is not entitled to retain any part of it as its own absolute property, and therefore comes within the application of the principle announced in” In re Continental Cas. Co., 189 Iowa 933, which will be later referred to. Is it correct to say that the dividend is merely a return of a part of the premium which the company has no right to retain as its own absolute property? Attention to the facts of this case, as stipulated and proved, and to the statutes, will distinguish it from the eases relied upon by plaintiff. While the plaintiff is a mutual company, and is owned by its policyholders, rather than by stockholders, it is, nevertheless, a corporate entity, as distinct from its policyholders as is the stock company from its stockholders. The plaintiff’s policyholders sustain a double relationship to it: (1) That of contractors with it, and (2), resulting therefrom, that of pro tempore owners of it. They are owners only in a qualified sense. They change from day to day, not by a mere transfer of interests which persist in others, but by utter cancellation of the interests of some and the acquirement by new- contracts of newly created and temporary interests by others. The policyholder whose connection with the company expires by lapse, surrender, or death has no interest which he may transmit in the continued existence of the company. The policyholders have no interest in the permanent surplus, other than in the gains from the investment thereof and as an assurance of the safety of their contracts. In the case of the stock company, the stock is owned by the holders in a different capacity than as policyholders, though the same person may be interested in both capacities. The stock investment constitutes a source of financial strength and safety which the mu-' tual company does not have, but which, manifestly, sound business principles would dictate that it offset by the collection of larger premiums, used in part in the accumulation of a larger reserve and surplus. (See Chapter 429, Acts of the Thirty-seventh General Assembly, and cases post.) The surplus of today results *203 iu large measure from tbe premiums collected from policyholders who have long ceased to be such. The earnings from their contributions figure largely in current dividends. Whether the business is conducted by a stock company or a mutual company, it is operated upon the same general principles. The so-called earnings, profits, or gains are of exactly the same nature, derived from the same sources. The factors entering into the fixing of the premium are: First, mortality, computed according to experience; second, interest earnings, computed at a rate estimated from experience; third, “loading,” to provide for operating expenses and unforeseen contingencies. The premium is fixed, not for the individual, but for a class, and the experience upon which it is based is the experience of a series of years. There have been in the past, and it must be assumed that there will be in the future, fluctuations in each element entering into the premium basis. The duty of paying the premium in order to continue the insurance is necessarily that of the policyholder to the company, as an entity distinct from him, and is absolute. The premium is a resource of the company’s. The right to the dividend depends on the discretion of the plaintiff’s officers. As stipulated, “he has no control over the question whether or not dividends shall be declared.” The annual or divisible surplus, as ascertained, arises, according to the evidence, “from various sources, such as excess interest earnings, savings in mortality, savings in expense charges, perhaps gains from lapsed and surrendered policies, and other profits which may. arise in the conduct of the business.” Manifestly, the interest earnings are those of the invested funds (capital) derived from premiums paid by former and by existing policyholders, — the capital (though not capital stock investment) of the corporation. The gains from lapsed and surrendered policies are gains of the company to which the persisting policyholders have not contributed, but in which they participate. It is a matter of general knowledge, shown by official reports, that some stock companies issue participating policies, and some mutual companies issue nonparticipating policies. The gains from non-participating policies would become a part of the gains of the corporation in which the participating policyholders of a mutual company would share. As has been seen, the officers may not be compelled to declare dividends. The policyholder has nothing to say as to *204 whether or not they shall be declared, or as to the amount thereof. He merely has the right to have the dividend distributed according to the contract, if one is declared. Until or unless it is declared, he has no right to dividend. It is not merely a return which the company is obligated to make of his money. The company is not so obligated. The assured’s obligation is to pay the premium, if he desires to continue the policy'. The company’s obligation is to pay the dividend, if apportioned. The only evidence in support of the claim that the insurance is to be carried at cost is that of a witness who says: ‘' The presumed aim of a mutual company is to carry insurance for the policyholders at cost. * * * Q. Then, in other words, isn’t it true that what is distributed in dividends to the policyholders is the difference between the actual cost of carrying the insurance and the estimated cost of it at the time the premiums are originally computed and established ? A. That is presumably the aim of the dividend schedules.” He further says: “The dividends declared by the New York Life Insurance Company do not represent the actual earnings over and above the assumed cost of the insurance. * * * They do not declare all their earnings in dividends, but a portion thereof, and assign the remainder to surplus. ’ ’ The policyholder pays to the company a sum believed to be in excess of what will be the so-called actual cost. In actual practice, it is believed that the assured is not' only purchasing protection, but making an investment. This is particularly illustrated by the old forms of tontine and semi-tontine policies, and by (at least some) deferred dividend contracts. It is expected that this margin, as well as the proportion assigned for reserve, will be invested at a profit. “But in level-premium life insurance, while the motive for taking it may be mainly protection, the business is largely that of savings investment. The premium is in the nature of a savings deposit. Except where there are stockholders, the savings bank pays back to the depositor his deposit, with the interest earned, less the necessary expense of management. The insur- *205 anee company does the same, the difference being merely that the savings bank undertakes to repay to each individual depositor the whole of his deposit, with interest, while the life insurance company undertakes to pay to each member of a class the average amount (regarding the chances of life and death); so that those who do not reach the average age get more than they have deposited,—that is, paid in premiums (including interest),—and those who exceed the average age less than they deposited (including interest).” Penn Mut. Life Ins. Co. v. Lederer, 252 U. S. 523, 531 (64 L. Ed. 698, 702). As has been shown, some of the premium finds its way into the permanent surplus of the company. The margin of earnings above the estimated amount and the saving in mortality rate and “loading, ” in the case of a stock company, are undeniably profit, and from it the dividends are paid to the stockholders, and in the ease of participating policies, to the policyholders. In the ease of the plaintiff, that same margin, acquired in the same manner and from the same sources, is divided between the permanent surplus belonging to the company and the policyholders. In both cases, it represents profit. In both cases, the contract obligation on the part of the policyholder (if he continues the insurance) is to pay the premium in full, and on the part of the company to pay or allow the dividend in full, in the event that one is assigned. If the dividend is used in reduction of premium, it is, in substance, the offsetting by the policyholder against the premium of his demand against the company. The quest is for the legislative purpose. *By Section 807 of the Code of 1873, every insurance company doing business in the state was required to pay “as taxes, two and one-half per cent of the gross amount of premiums received in this state during the preceding year.” The evidence is that, since 1872, the administrative officers of the state have construed the law as requiring the computation of the tax on the gross premiums received, computed at the contract rates, without any deductions for dividends or surrender values. Plaintiff, as well as the other companies, has been paying the tax accordingly during all these years, without demur. A settled practice under which the state has collected and the companies have paid such *206 important amounts for so- long a time ought not to be disturbed without compelling reasons therefor. Executive construction should be given much weight. Bankers’ Mut. Cas. Co. v. First Nat. Bank, 131 Iowa 456; Burk-Waggoner Oil Assn. v. Hopkins, 296 Fed. 492, and cases cited. The statute was re-enacted in the Code of 1897, Section 1333. It is a fair presumption that the legislature, by the re-enactment without change of language, was satisfied with such construction, and intended that it should continue. Komada & Co. v. United States, 215 U. S. 392. But whatever might have been the meaning of the law before the enactment of Chapter 43, Acts of the Twenty-eighth General Assembly, we think that the legislative purpose from that date is thereby clearly manifested. That act revised Section 1333 by letting it stand as to foreign companies, and taking out and making substitute for the provisions for domestic companies. Section 5 required that domestic companies, with certain exceptions, should pay the “equivalent to one per centum of the gross receipts from premiums, assessments, fees and promissory obligations required by insurance contracts * * * after deducting the amounts actually paid for losses, matured endowments, dividends to policyholders and the increase in the amount of the reserve as certified * * *' and the amounts returned to members upon canceled policies, certificates and rejected applications, during said year * ® *. ’ ’ By this enactment the legislature designated the companies which it would permit to make deductions, and the deductions that they might make. Penn Mut. Life Ins. Co. v. Lederer, 252 U. S. 523. The thirty-seventh general assembly again had before it the matter of deductions, and by Section 20, Chapter 429, Acts of the Thirty-seventh General Assembly, provided that the gross receipts of mutual fire or casualty companies “.shall consist of the gross premiums or receipts for direct insurance, without including or deducting any amounts received or paid for reinsurance, but with such other deductions as provided by law, and in addition deducting any so-called dividend or return of savings or gains to policyholders # * #. ’ ’ We need not, in this connection, discuss Chapters 56 and 57, Acts of the Thirty-second General Assembly, referred to in In re Continental Cas. Co., 189 Iowa 933, post. The amended statute is to be construed as if it were a new and independent act. Mc *207 Guire v. Chicago, B. & Q. R. Co., 131 Iowa 340; 36 Cyc. 1165. The amendment may be regarded also as placing a construction upon the former statute which, as to the future, is controlling of the legislative intent. Aikin v. Western R. Corp., 20 N. Y. 370, 373; 36 Cyc. 1142. The claim that the dividend is a refund of that part of the premium which the company has no right to retain as its own, and that not the contract premium, but the contract premium less dividends declared, is the gross premium, within the meaning of the statute, is, as to foreign companies, we think, on the facts before us, untenable. Much more so, is the contention that deferred dividends and surrender values paid are part of the premiums deductible in ascertaining the gross premiums received. Our conclusion is sustained by the following cases: Northwestern Mut. Life Ins. Co. v. Roberts, 177 Cal. 540 (171 Pac. 313); Cochrane v. National Life Ins. Co., 77 Colo. 243 (235 Pac. 569); New York Life Ins. Co. v. Wright, 31 Ga. App. 713 (122 S. E. 706) ; State ex rel. Northwestern M. L. Ins. Co. v. Tomlinson, 99 Ohio St. 233 (124 N. E. 220) ; State ex rel. Hdw. Mut. Cas. Co. v. Hyde, 304 Mo. 447 (264 S. W. 381) ; Massachusetts Bond. & Ins. Co. v. Chorn, 274 Mo. 15 (201 S. W. 1122) ; Fire Assn. v. Love, 101 Tex. 376 (108 S. W. 158). The authorities thought to be in opposition to our conclusion involve, we think, materially different states of fact, or different statutory terminology. Metropolitan Life Ins. Co. v. State, 194 Ind. 657 (144 N. E. 420); Mutual Ben. Life Ins. Co. v. Herold, 198 Fed. 199; Mutual Ben. Life Ins. Co. v. Commonwealth, 128 Ky. 174 (107 S. W. 802); Mutual Ben. Life Ins. Co. v. Richardson, 192 Cal. 369 (219 Pac. 1003); Commonwealth v. Penn Mut. Life Ins. Co., 252 Pa. St. 512 (97 Atl. 677). Plaintiff relies on In re Continental Cas. Co., 189 Iowa 933. The claims in that case were by a casualty company for a deduction for premiums returned on cancellation of fire insurance policies, and by the casualty company and fire insurance companies for deductions for premiums paid for reinsurance on identically the same risks granted pursuant to contract made and carried out in another state. The reinsurance was held not to be business done in Iowa. The state was claiming a double tax upon the same premium. That phase of the decision is not in point here. The state in the casualty company case relied also *208 on Chapter 56, Acts of the Thirty-second General Assembly; bnt Chapter 43, Acts of the Twenty-eighth General Assembly, Chapter 429, Acts of the Thirty-seventh General Assembly, the history of Section 1333, Code of 1897, and the administrative construction placed upon it, were not brought to the attention of the court. The deduction claimed was for the unearned part of the premiums returned to the individual policyholders on cancellation, not for earnings or savings apportioned as dividends or surrender values. While the discussion in some particulars is inconsistent with our discussion here, the case is not authority in support of plaintiff’s present contention. Whether, in the light of the facts and legislative history now reviewed, we would now arrive at the same conclusion, need not be considered. It is urged that to so construe the statute would render it inimical to the equal protection clause of the Fourteenth Amendment, Constitution of the United States, inasmuch as domestic companies are permitted by the statute to make deductions. See Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 (71 L. Ed. 372); Western Union Tel. Co. v. State ex rel. Coleman, 216 U. S. 1 (54 L. Ed. 355), and cases cited. The plaintiff by its action is seeking an affirmative recovery, and bases its claim upon Section 1333, Code of 1897, not as an invalid statute, but as a valid one, having the meaning contended for. Plaintiff does not, by its pleading or otherwise, directly attack the statute as unconstitutional, nor the construction which the taxing officers were and are placing upon it as rendering it unconstitutional. Constitutional questions ought ordinarily not to be considered except when necessarily involved, and then upon the fullest investigation and argument. Iowa Mot. Veh. Assn. v. Board of R. Commrs., 202 Iowa 85. It is true that, if a statute is fairly open to two constructions, one of which will render it constitutional, and the other of doubtful constitutionality, or unconstitutional, the construction upon which it may be upheld should be adopted; but it is not the province of the court to amend the law in order to save its constitutionality,—to give to if a meaning which the legislature did not intend. Yu Cong Eng v. Trinidad, 271 U. S. 500 (70 L. Ed. 1059).—Affirmed. *209 Stevens, Faville, Albert, Kindig, and Wagner, JJ., concur. De Graff, J., concurs specially. Evans, C. J., not participating.