State Ex Rel. National Life Insurance v. Jay

*194 Bltjme, Chief Justice. The relator, a mutual life insurance company, duly filed its annual statement of business transacted in the state of Wyoming for the year 1926, and paid $889.51 as a tax at the rate of 2y2 per cent on premiums in the sum of $35,-580.21, received on business done in this state during that year. This amount of tax was accepted, but later the Insurance Commissioner of the state demanded a further tax on an additional sum of $17,099.46, and threatened to cancel the license of the relator to do business in this state, unless this additional tax amounting to $427.48 were paid. Thereupon the relator commenced this original proceeding in this court, praying for a peremptory writ of mandamus to compel the Insurance Commissioner to vacate his order demanding such additional tax, and that he issue his receipt showing full payment of taxes due by relator to the state for said year. An alternative writ of mandamus was issued citing the defendant to appear and show cause why the writ should not be made permanent. The defendant appeared and demurred to the petition, alleging that it fails to state facts sufficient to constitute a cause of action, and the ease has been argued and submitted thereon. The facts, as disclosed by the^fietition, are in brief as follows: Relator is a mutual life insurance corporation organized under the laws of Vermont and duly licensed to transact business in Wyoming. It conducts its business on the mutual plan, and with the purpose to furnish the insured with insurance at cost. Inasmuch, however, as relator has no capital stock, and must rely on the receipt of premium to pay ordinary losses, as well as to meet all unusual contingencies, it must provide for a margin of safety. Hence it fixes the premium payable on the face of the poli- *195 ices high, witb the intent and under the agreement with the policy holders, that if the amount collected is found from time to time to be not needed, the latter shall participate in the benefit thereof. The policies issued, accordingly, are known as policies on the participating-plan, and the premium payable on the face of the policies is but a maximum amount of premium and necessary to be paid only if contingencies should require it. To provide the margin of safety above mentioned, relator and other insurers operating on the same plan, determine the maximum amount of premium payable on the face of the policies on the following assumptions: first, of a mortality rate higher than may be expected in actual operation; second, of a rate of interest on investments lower than may actually be realized; third, of an amount for expenses and contingencies greater than that which may actually be needed. Accumulations by reason of these factors, namely money saved and not expended on account of a lower mortality, and money gained because of more interest received, and because of less expense for operation and contingencies, than above calculated, constitute and are put into what is called a divisible surplus or dividend fund, the amount of which is determined and fixed at the end of each year, and is paid back to the policy holders in one of the ways stated in the policies, namely, (a) in cash, or (b) applied toward the payment of any premium, or (c) converted at net single, premium rates into additional paid-up participating insurance, which may be surrendered for its cash value at any time, or (d) deposited with the company subject to the payment annually of three per cent interest thereon. The aggregate maximum amount of premiums specified in the policies of insurance of the relator, held by residents of the state of Wyoming, payable for the year 1926, was the gross sum of $52,679.67, which was paid as follows: $9,057.01 by the application of dividends, pursuant to requests of policy holders, as part-payment of premiums due; $8,042.45 by the payment of cash dividends to policy hold *196 ers out of the divisible surplus; $35,580.21 by cash paid by policy holders to the company and retained by it. The tax specified in the statute was paid on the last sum, namely on $35,580.21, but the Insurance Commissioner also claims a tax on the sums of $9,057.01 and $8,042.45 returned to the policy holders either in cash or by application, as part payment, on the premiums specified on the face of the policies of the respective policy holders. The provisions of section 2766, W. C. S. 1920, in so far as material here, are as follows: ‘ ‘ There is hereby imposed and levied upon each and every insurance company transacting the business of insurance within this state, a tax of 2% per centum per annum upon the gross premiums received by it for insurance within this state from the beginning until the close of the calendar year. ’ ’ The point in dispute is as to whether or not the amounts paid in 1926 out of the divisible surplus of relator to its policy holders, as cash, or which was applied as a part-payment on the maximum premium specified in their respective policies, should be considered as part of the “gross premium” mentioned in the statute aforesaid. We do not understand that there is any controversy in this case as to so-called dividends paid to policy holders other than those paid to policy holders who actually paid premiums to the company during the year 1926. We think that the contention of the relator as to the meaning of “gross premiums,” as used in our statute above quoted, must be sustained, and that the distribution made to policy holders as above mentioned, out of the divisible surplus fund, cannot be considered a part thereof. For it is apparent from what has been said, that this fund does not represent any profits. A dividend therefrom is not a dividend as ordinarily understood. It represents an overpayment previously made by the policy holders and an amount not deemed necessary by the company to be retained in order to meet the expenses *197 of operation and of contingencies. And inasmuch as the insurance is at cost, the distribution of this amount is not even a matter of favor to, but a matter of right of, the policy holders. They are not bound under their contract to pay the amount of the premium specified on the face of the policy except when necessary for the company to meet its obligations. The premium which they are compelled to pay is the amount specified on the face of the policies less their proportion of the divisible surplus. If one of them has agreed to pay $200 less any overpayment which may be found to have been made by him, and such overpayment is found to be $50, and he pays only $150, the gross premium received from this policy necessarily is only the last sum mentioned, and it is hardly credible that the legislature intended to tax an amount not actually paid or received. That is substantially the situation of the policy holder who exercises the second option above mentioned contained in relator’s policies. If instead of paying $150, this same policy holder should pay the full amount of premium specified on the face of his policy, and, exercising the first option specified therein, receives $50 in cash from the company, the result would be the same, though the bookkeeping somewhat different. If A owes B $150, but gives B a check for $200 and receives $50 back in change, the gross amount that A has paid is, practically speaking, but $150 and no more. This is the view that has been taken by nearly all the courts that have had occasion to pass on this question. Mutual Benefit Life Insurance Co. v. Commonwealth, 128 Ky. 174, 107 S. W. 802; Commonwealth v. Penn Mutual Life Insurance Co., 252 Pa. 512, 97 Atl. 677; Commonwealth v. Metropolitan Life Ins. Co., 254 Pa. 510, 98 Atl. 1072; Penn Mutual Life Insurance Co. v. Henry, 110 Miss. 402, 70 So. 452; State v. Wilson, 102 Kans. 752, 172 Pac. 41; L. R. A. 1918 D. 955; State ex rel. National Life Insurance Co. v. Hyde, 292 Mo. 842, 241 S. W. 396; Mutual Benefit Life Insurance Co. v. Richardson, 192 Cal. 369, 219 Pac. *198 1003; Metropolitan Life Insurance Co. v. State, 194 Ind. 657. And see cases in note L. R. A. 1918 D 958. Tbe actual situation in tbis case is well stated in Mutual Benefit Life Insurance Co. v. Harold, 198 Fed. 198, where tbe court said: “Tbe true situation, however, is this: Tbe policy is issued at a fixed premium, as determined by tbe company’s, table of rates. That stipulated premium cannot be increased, but may be lessened annually by so much as tbe experience of tbe preceding year has determined it to have been greater than tbe cost of carrying the insurance, and the difference between tbe amount of tbe stipulated premium and tbe cost of carrying tbe risk constitutes the-so-called dividend. Tbis difference, however, is not in any real sense a dividend. Tbe term as used is technical and well understood in insurance circles, and, as so understood,, has a widely different signification from that ordinarily attached to tbe word ‘dividend.’ It operates, as already stated, merely to abate or reduce tbe stipulated premium called for by tbe contract of insurance, to tbe extent and. for tbe reason that it has been determined by experience that tbe policy bolder paid for bis insurance during the-preeeding year more than it actually cost tbe company to carry tbe risk. Tbis excess payment represents, not profits, or receipts, but an overpayment; an overpayment because, being entitled to bis insurance at cost, and having paid more than it cost, be is equitably entitled to have such excess applied for bis benefit. It makes no difference what. tbis excess is called. Tbe question is, What does it represent? Does it in any wise or to any extent represent earnings or profits received by tbe company, so as to constitute it a part of its income; or does it merely represent an-overpayment? “Under tbe terms of bis policy, tbe policy bolder may-at bis option withdraw such excess in cash, and thereby impart to it a quasi appearance of profits; but its character is not thereby changed. In that case, however, be would, if be desired to continue bis policy, be required to pay tbe full premium as therein stipulated; whereas, if be ■ desired such premium reduced to what experience bad shown was tbe actual cost of bis insurance, be could have¿ *199 tbe excess over such cost applied in reduction of the stipulated premium, and pay only the cost price for the ensuing year; and, assuming that the cost price as determined by the experience of the first year remained the same for 5, 10, 15, or other number of years, that original excess payment would serve to carry his insurance at cost during all of the succeeding years. * * * “From the foregoing it appears that what the company receives in cash, and all that it so receives where the dividend is applied in abatement of renewal premiums, is the difference between the stipulated premium and the so-called dividend. In such cases the dividends are not sums paid to the policy holder and by him returned in cash. They are not‘income * * * received.’ The policy holder has not paid the premium stipulated in his policy, but a premium reduced by his share of a fund, as ascertained by the directors, composed of excess premiums. ’ ’ Two cases which held contrary hereto have been cited: State v. Tomlinson, 99 O. S. 233, and Cochrane v. National Life Ins. Co., 77 Colo. 243, 235 Pac. 569. Both of these eases turned upon the peculiar and special course of legislation in the respective states. The Ohio court frankly admits that except for such legislation, it would have held otherwise. So in the case at bar, it is argued that in view of the history of the legislation on this subject, and because of the construction put thereon by the administrative officers of this state, we should not follow the great weight of authority on this point. ¥e are unable, however, to see anything in the legislation on this subject which would lead us to believe that the legislature intended to tax the divisible surplus above mentioned. The first act on this subject was see. 15 e. 28, Laws of 1869. By that act the “premiums taken” in by insurance companies were required to be listed for taxation the same as other property, and the amount was liable for an aci valorem, tax. The next legislation on the subject is found in the enactment on insurance by the legislature that met in 1877. By section 37 of that act it was provided that every *200 insurance company should be taxed “upon the excess of premiums received over losses and ordinary expenses incurred within the territory during the year previous to the year of listing.” That act remained in force until 1897, when the law as substantially in effect at the present time was enacted. There is nothing in any of these laws which would indicate that the meaning of “gross premiums received” is other than as we have interpreted these words. It is argued on behalf of defendant that from 1869 to 1921, the tax' assessed against insurance companies was computed and paid upon the entire gross amount of premiums received from business done in this state without reference to any divisible surplus, and that we should adhere to the construction put upon it for so long a time. There are several answers to this contention. In the first place, we are unable to see how the attorney general knows that such construction was put upon the law from 1869 to 1897, for during that time the premiums received by insurance companies in this state were listed, and the taxes thereon were paid, in the various counties of the state. Further, under the law of 1877, expenses and losses of the companies at least were deductible, so that it would probably be difficult to determine what the practice in the various counties was, and we cannot, under these circumstances, at least, take judicial notice thereof. Whether any mutual life insurance companies, such as the relator herein, were doing business in this state during that time may well be doubted; at least we cannot take judicial notice that they did. It may be that the construction put upon the law of 1897 by the administrative officers of this state was, up to 1921, as claimed, but even assuming that we could take judicial notice thereof, which we do not decide, the construction put thereon since 1921 has been different. In that year the then attorney general construed the law as we now construe it, and that ruling has been *201 adhered to by two of his successors, including the present occupant of that office. Under these circumstances the construction put on the law prior to 1921 could not, we think, be of controlling importance herein. The demurrer filed herein must accordingly be overruled, and it is so ordered, and unless within 15 days the defendant files an answer herein, the peremptory writ of mandamus will issue as prayed. Potter, J., and Kimball, J., concur.