State ex rel. Fidelity & Casualty Co. of New York v. Fricke

The following opinion was filed December 16, 1898: Bardeen, J. The facts at issue in this litigation are very much the same as were involved in the cases of Travelers’ Ins. Co. v. Fricke, 94 Wis. 258, and S. C. 99 Wis. 367. In those cases the company had paid the $300 license fee, and not the two per cent, on its gross earnings. In this case the [111] relator bad paid the two per cent, on its income, as required by ch. 105, Laws of 1880, but has not paid the $300 annual license fee imposed by sec. 1220, R. S. 1818. In bis brief, counsel for relator, after reviewing the facts involved in the former litigation, said, “ The question, therefore, whether an accident insurance company organized under the laws of another state was, after ch. 105, Laws of 1880, required to pay $300 per annum in addition to the ‘fees and tases’ thereby imposed, although-discussed, has not been adjudicated by this court.” Pursuant to this statement, counsel has submitted a vigorous and carefully prepared argument in bis brief j and pressed the same with great vehemence at the bar, as to the construction this court ought to give to the statutes mentioned. The earnestness of the counsel, and the importance of the questions involved, have induced us to carefully review the former litigation and the questions therein determined. "We find it entirely unnecessary to attempt to justify those decisions. They represent the deliberate judgment of the court, after a careful and exhaustive argument and consideration of all of the questions involved. The suggestion of counsel that the construction of the statutes mentioned was not necessary for the determination of those cases is met by casual reading of the opinions filed. The question was certainly presented, carefully argued, and deliberately considered by the court. Speaking of ch. 105, Mr. Justice Winslow says: “ Although this act was not in terms denominated an amendment to sec. 1220, R. S., its legal effect as such is too plain for argument. It manifestly added to the license fee required of a foreign company doing an accident business in this state by sec. 1220 the fee required in case of a foreign fire insurance company, which, as. we have seen, was two per cent, of its gross earnings upon business transacted within this state during the preceding year. "We are unable to see any other construction which can be placed upon the act [112] without emasculating it to such an extent as to make it absurd.” 94 Wis. 258. Again, in the second Travelers' Case, 99 Wis. 367, the following language was used: “ We have no intention of reviewing again the questions already discussed and decided in the previous action. The statutes were then deliberately considered and construed, and the conclusions then reached are entirely satisfactory, and, so far as applicable, they will be applied to the present case. It was then held, in effect, that the annual license fees required to be paid by foreign insurance companies desiring to do business in this state were levied upon the business transacted, and not upon the company transacting the business ; . . . that ch. 105 was an amendment, simply, to sec. 1220, R. S., and that it added to the fees previously required a payment of two per cent, upon the gross income received upon accident business during the preceding year.” In an argument for a rehearing, counsel again attacked the •conclusions of the court with great vigor, but the original decisions were adhered to. In view of this situation, we do not think there is any room for saying that the question was passed upon only incidentally, and that the conclusion reached was not the result of deliberate judgment. That we may not be misunderstood, we here deliberately assert that in our judgment -the same legal questions here contended for by the relator were necessarily involved in the decisions in the Travelers’ Cases, that they were there deliberately considered and decided, and that we are now satisfied that the conclusions there reached were correct and must govern this case. The .application of the doctrine of practical construction placed upon the law by the insurance department, and the question of requiring the company to pay interest upon the amount due the state, were submitted, argued, and decided adversely to the company. What was said in the former cases on these questions renders a new discussion entirely unnecessary. [113] The findings of the trial court upon the admitted facts show that the insurance company has transacted business in this state since 1880, and has not paid the annual license fee of $300 required by sec. 1220, and that, before it can rightfully compel a license to be issued to it,-it must pay the sum in arrears, with legal interest. In the first Travelers’ Case it was held by this court that, when a license had been granted to an accident insurance company upon the payment only of the $300 fee prescribed in sec. 1220, it might be revoked by the insurance commissioner upon refusal to pay the additional fee required by ch. 105, Laws of 1880. In the second case it was ruled that a current license might be revoked for the refusal of the company to pay amounts due under the statute for past years’ business. Following the logic of these decisions, the trial court upheld the commissioner in his requirement that these arrearages should be paid before a new license would be issued. In this ruling he was manifestly right, and we have no disposition to disturb it. The point is made, however, that as no demand was made for these arrearages until November, 1897, the claim is stale, and interest ought not to be required; also, that, under the statute, the relator, having appointed an attorney upon whom process might be served in this state, thereby obtained a legal residence here, and was therefore entitled to the benefit of the statute of limitations. One important fact must not be lost sight of, and that is that this is not an action brought by the state to recover this money. The relator can only do business in this state by sufferance. When it seeks that privilege, it must consent to and obey the conditions attached to the liberty sought for. The legislature has seen fit to vest in the commissioner of insurance the power to revoke a license for failure to comply with any provision of law enacted for the regulation of that business. As an incident to that power, he is authorized to revoke [114] licenses for past violations, or withhold a license until the insurance company has fully complied with all legal requirements. The terms imposed as a condition for granting the peremptory writ prayed for are strictly in accord with the holding in the last Travelers' Case. No good reason is perceived why the rule there announced is not applicable to the case at bar. Courts have a discretion in issuing writs of mandamus merely in aid of private right, and, in view of what has already been said, we do not feel that such discretion has been wrongly exercised in this case. We desire, however, to leave open and undetermined the question of whether a foreign corporation doing business in this state under legislative authority may not, in a proper case, have the advantage of the statute of limitations. By the Gov/rt.— The judgment of the circuit court is affirmed.