Northwestern Mutual Life Insurance v. State

The following opinions were filed December 1, 1915: WiNsnow, C. J. The plaintiff, a domestic mutual life insurance corporation, doing business on the level-premium plan, brings action in this court against the state to recover license taxes paid to the state under protest amounting to $482,193.23 in 1912 and $505,643.22 in 1913. The license taxes were levied under sec. 1220, Stats. 1911 (being sec. 51.32, Stats. 1913), and the plaintiff’s claim is that the statute is void (1) because it denies the equal protection of the laws guaranteed by the state constitution and by the Fourteenth amendment to the federal constitution, and (2) because it unlawfully interferes with interstate commerce. The complaint shows that the claims were duly presented to the state legislature and disallowed. The state demurs (1) because this court has no jurisdiction of the defendant’s person, (2) because it has no jurisdiction of the subject of the action, and (3) because the complaint does not state a cause of action. In support of the first two grounds of demurrer it is argued that sec. 3200 of the Statutes, under the terms of which this action is brought by original action in this court, is void because it attempts to confer original jurisdiction upon this court in violation of sec. 3 of art. YII of the state constitution, — 488 — the provisions of which, so far as material to tbis inquiry, are that “the supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only.” It is sufficient to say in answer to this objection that sec. 27 of art. IY of the constitution provides that “the legislature shall direct by law in what manner and in what courts suits may be brought against the state,” and that it was decided by this court in 1853 (Dickson v. State, 1 Wis. 122) that this section gave power to the legislature to designate the supreme court as the court in which such suits might be brought, such designation being considered as one of the exceptions referred to in sec. 3 of art. VII. This decision has never been overruled or questioned. It directly sustained the constitutionality of ch. 249 of the Laws of 1850, which has been upon our statute books ever since, and with unsubstantial changes now appears as secs. 3200-3203 of the Statutes. This decision has also been uniformly recognized in numerous instances by all departments of the state government, legislative, executive, and judicial, as correctly construing the constitution from the time of its rendition up to the present time, a period of more than sixty years. To overrule it now would be hardly permissible even if we were convinced (which we are no!) that it was incorrect as an original proposition. The law in question provides in substance that every company transacting the business of life insurance in this state (except fraternal societies having lodge organizations and insuring only their own members) shgll annually pay as license fees for transacting such business and in lieu of all other taxes, except taxes on real estate, the following amounts: Domestic level-premium or old-line companies three 'per centum of the gross income for the year, excepting therefrom rentals of real estate on which the taxes have been paid, and premiums collected outside the state on policies held by nonresidents ; — 489 — Foreign level-premium or old-line companies $300, except that whenever the law of the foreign company’s domicile requires a larger license fee or tax to be paid by an outside company as a condition for the issuance of a license, then such foreign company shall pay the same fee or tax for a -license permitting it to do business in this state; Stipulated premium companies, foreign or domestic, $300; Assessment companies, foreign or domestic, and fraternal associations having no lodge organizations, $300; Fraternal associations having lodge organizations and insuring only their own members, nothing. The plaintiff’s first claim is that this law denies to it the equal protection of the laws because it makes arbitrary discrimination (1) as between it and foreign level-premium companies, (2) as between level-premium companies and fraternal insurance organizations, and (3) as between domestic level-premium companies and assessment and stipulated premium companies. The plaintiff’s second claim is that the law unlawfully hampers and interferes with interstate commerce. These claims will be discussed in their order. 1. Under this head the most serious contention doubtless is the contention that there is arbitrary and illegal discrimination between the plaintiff and foreign companies of the same class, i. e. companies doing life insurance business in this state on the level-premium plan. The plaintiff, a domestic corporation, is required to pay for the privilege of doing business in this state a license fee amounting to three per centum of its gross receipts (certain classes of receipts being excepted), while foreign corporations doing business upon the same plan are required to pay only $300 per year (except in cases where the retaliatory clause is called into operation) for the same privilege. It is clear that this so-called license fee is a privilege or occupation tax, and that, while it is not subject to that clause of — 490 — the state constitution which requires the taxation of property to be uniform (sec. 1, art. VIII.), it is subject to the general equality clauses of the state constitution and to the clause guaranteeing the “equal protection of the laws” contained in the Fourteenth amendment to the federal constitution. It is clear also that this means that there can be no arbitrary or whimsical classification, but that there may be classification founded upon real differences of situation and condition affording rational grounds .for the difference in treatment. Black v. State, 113 Wis. 205, 219, 89 N. W. 522; Nunnemacher v. State, 129 Wis. 190, 220, 108 N. W. 627; Beals v. State, 139 Wis. 544, 557, 121 N. W. 347; Connolly v. Union S. P. Co. 184 U. S. 540, 559, 560, 22 Sup. Ct. 431. The disparity between the annual license fee required of domestic companies by the law in question and the fee required of foreign companies is admittedly very great, and the question arising is simply whether there is any substantial difference, other than the difference between foreign and domestic corporations, which differentiates the two classes and which justifies such great difference in treatment. The question is by no means an easy one. A corporation is a person within the meaning of the Fourteenth amendment, and a state eannot under that amendment discriminate against its own citizens and in favor of citizens of other states any more than it can do the reverse. Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064; State v. Hoyt, 71 Vt. 59, 42 Atl. 973. Every person, whatever-his citizenship, is protected against unequal laws. On the face of it this law seems to allow foreign life insurance companies to do business in this state upon payment of a mere nominal fee, while exacting from domestic companies for the same privilege a very large fee. Are there any real differences between the two classes which bear a just and proper relation to the attempted classification and justify this difference of treatment? If there are such differences the — 491 — law may doubtless be justified so far as tbis objection is concerned, for it is quite well established that the Fourteenth amendment does not prevent a state from changing its system of taxation in all proper and reasonable ways, nor from allowing exemptions, nor from imposing different specific taxes upon different trades or professions, nor from classifying property for taxation so long as the -classification does not invade rights secured by the federal constitution. Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 533; Connolly v. Union S. P. Co., supra. The question whether there are substantial differences of condition reasonably suggesting the propriety of difference of treatment is primarily a legislative question, and the legislative judgment thereon is not to be disturbed by the courts unless legislative action has clearly passed the boundaries of reason. Given the differences of condition above referred to and the field of legislative action is very broad. The legislative judgment is not to be interfered with merely because the judicial mind might reach a different conclusion as to the policy or wisdom of the law nor unless the, court can confidently say that no reasonable ground can be discovered to support the classification. In approaching this question it is important to note at the outset that the license tax in question is levied in lieu of all other state taxes except taxes on real estate owned by the company. It covers all the contributions which the state demands from the company or its business except real-estate taxes, which are relatively small in amount. It is common knowledge that all of the great level-premium insurance companies of the present day have vast reserve funds, to protect their liabilities on policies, running up into the hundreds of millions of dollars, and that these reserves are invested in interest-bearing securities, of which real-estate loans secured by mortgage generally form the largest part. In the complaint in the present case it appears that on December 31, 1911, — 492 — the plaintiff had outstanding loans secured by real-estate mortgages amounting to $153,562,654.39, of which only $5,654,369.10 covered real estate in Wisconsin. It also appears that the plaintiff’s income from real-estate mortgages for the year ending on said last named date amounted to $7,446,393.10 and its income from bonds to $3,172,489.58. These securities are all credits, i. e. personal property of an intangible character, the situs of which for the purposes of taxation is in this state at the residence of the corporation. The power of the state under the constitution to levy occupation taxes in the shape of license fees in lieu of other taxes cannot now be questioned. Chicago & N. W. R. Co. v. State, 128 Wis. 553, 589, 108 N. W. 557; Nunnemacker v. State, 129 Wis. 190, 108 N. W. 627. Having determined on the license system of taxation for all life insurance corporations, the state faced this situation: on one hand were the domestic level-premium companies (of which the plaintiff is by far the most conspicuous example), having their reserves invested in securities or credits, all of which were not only taxable in Wisconsin but'should, in justice to other taxpayers, contribute to the expenses of the government which created and protects their owners; and on the other hand were the foreign level-premium companies, also having great reserves, practically none of which were taxable in Wisconsin and which were presumably subjected to just and adequate taxation in their respective domiciles. The essential difference was not the difference in residence but the difference in the location for taxing purposes of the reserves. This difference is certainly a very real one, germane to the subject of license-fee taxation, and it plainly suggests, if it does not indeed demand, some substantial difference of treatment in the matter of the amount of the fees exacted. It would be indefensible to subject both classes to the merely nominal fee of $300, thus allowing the great reserves of the local companies to escape taxation entirely, and it would be equally indefensible to exact of — 493 — both classes a fee large enough to accomplish just taxation of the domestic company. The first course would practically exempt from taxation a very large volunté of the state’s taxable property, thus increasing the burdens of all other taxpayers, and the second course would probably bar out every foreign life insurance company from the state, and either course would manifestly give to the domestic companies a very great advantage over foreign companies doing the same business. Plainly, the only course which could be followed, if just taxation were to be approximated under the license system of taxation, was a course which should in some way compel the domestic company to make a fair contribution to the support of its home government, while recognizing and allowing for the fact that presumably every foreign company is compelled by its home state to do substantially the same thing. Whether this be done by personal property taxation, by income taxation, or by license-fee taxation was, we think, a question for the state to decide. We are unable to say that the state has not acted within the bounds of reason in fixing the license fees in the present case. It seems quite certain that a personal property tax would have exacted far larger contributions from the plaintiff to the public revenues than the license fee provided by this law. It is not to be expected that any precedent exists exactly on all-fours with the present case, but we think it clear that the principle upon which the classification in question is based has been approved in a number of cases decided by the federal supreme court in recent years. Pacific Exp. Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 250; Kidd v. Alabama, 188 U. S. 130, 23 Sup. Ct. 401; Brown-Forman Co. v. Kentucky, 211 U. S. 563, 30 Sup. Ct. 578. The conclusion reached on this branch of the argument-renders it unnecessary to consider at length the question whether the law is in any respect aided by the retaliatory feature. Retaliatory laws have been held valid by the fed — 494 — eral supreme court (Philadelphia F. Asso. v. New York, 119 U. S. 110, 7 Sup. Ct. 108), and we find no necessity for considering the question as to the practical effect of that feature in the present law. Any effect -which it may have must of course be in the direction of lessening the disparity in treatment of which the plaintiff complains in the present case. This brings us to the contention that there is unlawful discrimination between level-premium companies and fraternal benefit associations having lodge organizations, which, under the terms of the law, are exempted from the payment of any license .fees. We do not feel that we should be justified in consuming any considerable amount of time or space in meeting this contention. That there is much difference of condition between the great level-premium company with its great reserves and the Ordinary fraternal benefit association cannot be questioned. That the differences are such as to justify classification and difference of treatment so far as license taxation is concerned seems to us quite evident. The level-premium company is purely a business concern; the true fraternal benefit association is a banding together of many groups of neighbors primarily for social purposes, but with the further idea of rendering mutual help in misfortune, sickness, or death and inculcating the principles of brotherhood among the members. Such associations have no great expense account, they conduct the insurance feature of their organizations at comparatively small cost, and they have no such immense volume of reserve funds. Probably the lodge organization is their most marked differentiating characteristic. It is this characteristic which the legislature has -chosen as decisive of their character, and we do not feel that we can say that the choice was made without reason. It avails not to say that there may be some instances where the lodge organization is almost or quite a pretense and the supposed fraternal association really approaches very closely to an insurance company. Nearly all classification possesses this defect. Individual cases near the border line — 495 — on either side often present no differences worthy of notice, but this does not invalidate the classification. It is the class, considered broadly as a class, which must possess the substantial differences suggesting the propriety of different legislative treatment, not every individual of the class. This principle is familiar. This state has recognized the distinct and exceptional character of fraternal associations and treated them as forming a class which should he subject to its own legal code since 1889. and still continues to do so. Sec. 1956 et seq. Stats. The brief of the state informs us that the laws of forty-two states recognize the same distinction and that twenty-nine of these states have specified the lodge system as one of the distinguishing features of such organizations. We have not verified all of the citations, but have no douht of their substantial accuracy. We see no reason to doubt that the differences between these organizations as a class and level-premium insurance companies as a class are so real and substantial as amply to justify classification. This conclusion receives support in the ease of German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 Sup. Ct. 612. We now reach the alleged illegal discrimination between domestic level-premium companies on the one hand, and assessment and stipulated premium companies, whether foreign or domestic, on the other. The following statements from insurance writers are quoted with apparent approval in the plaintiff’s brief: “The assessment system ... is that one under which, theoretically, the cost of the insurance is annually collected from the members by assessing on them the costs. In practice there have been so many modifications of this theory that it is difficult to characterize the assessment plan, hut the essential idea in this system is that no resérve is collected.” Gephart, Principles of Insurance, pp. 100, 101. “For a long time they [assessment companies] were all agreed that a reserve was not merely unnecessary but useless and dangerous. But after a time the simple science of the — 496 — natural premium tables made it clear that, whether a society regarded it or not, there is a gradual and inevitable advance in the cost of insurance with the increase of hazard because of the advancing ages of the insured; and, consequently, several co-operative companies gave up the principle of ‘pay as you go’ and collected such amounts in excess of current expenses and losses as in the varying opinions of their managers would be likely to hold the premiums stable. The variety of views as to the cause of alterations in current cost and the mode of remedying them is indicated by various terms adopted to designate the reserve accumulations — emergency fund, guarantee fund, mortuary reserve fund, special reserve fund, and the like. This is a very great change from the original basis and utterly invalidates the narrow and specific definition of assessment insurance which, has been given. The new definition must cover practically all forms of insurance which do not make compliance with legal reserve laws fundamental; in fact, such compliance or noncomplianee may be made the shibboleth to distinguish the two forms of insurance.” Dawson, Assessment Life Insurance, pp. 4, 5. “The assessment companies . . . are less scientific in their operations. No mortality tables are used, no interest rates are assumed, and no technical reserves maintained. The original plan of the purely assessment companies was to wait until one or more losses had occurred and then levy an assessment sufficient to cover such loss or losses. This, however, proved uncertain and so annoying to the members that they invariably withdrew, the young and healthy withdrawing first. This left the old and decrepit to pay the consequent increasing assessments and finally to meet with disaster. A variety of methods have been tried to obviate this difficulty. In late years most of these associations have collected advance assessments in the form of stipulated premiums and have accumulated so-called ‘reserves.’ ” Wisconsin Insurance Report, 1901 (Life and Casualty), 39, 40. “A term [stipulated premium] somewhat vaguely applied to the premium charge of sundry assessment associations. Instead of irregular assessments, a stipulated amount yearly is charged, the same to remain level until found inadequate for the payment of increasing death losses, when an additional charge may be made. The original charge, the so-called ‘stipulated premium,’ varies in different associations according to the guess of the management. It serves the purpose — 497 — for a few years, blit sooner or later proves inadequate, and must be increased in amount or an additional assessment must be made.” Jackson, Definitions in Life Insurance, p. 24, No. 51. It is quite apparent from these three excerpts that assessment insurance pure and simple, except so far as the fraternal orders are concerned, has broken down, and that experience has demonstrated that a premium plan having some resemblance at least to the level-premium plan must be adopted if assessment companies are to live. The legislature of Wisconsin recognized the inherent weaknesses of assessment insurance as early as 1899, and by ch. 270 of the laws of that year authorized the formation of companies on the stipulated premium plan and provided for the reincorporation of assessment associations or societies under the act. This act required the charge by such companies of net premiums calculated on mortality tables equal to that of yearly term insurance at the age of entry and increased at least twenty-five percent. It also provided for the accumulation of certain reserves. This act was evidently not satisfactory and was repealed by ch. 121, Laws 1907. By ch.- 447 of the laws of the same year two sections were added to the Statutes which are now numbered secs. 1955y — 1 and 1955y — 2. The first of these sections provides that- no life insurance company (other than fraternal associations) “which issues contracts, the performance of which is contingent upon the payment of assessments or calls made upon its members, shall do business within this state except such companies or associations as are noiv authorized to do business within this state and which shall value their assessment policies or certificates of membership as yearly renewal term policies according to the standard valuation of life insurance policies prescribed by the laws of this state.” The section further provides for the details of the required valuation and also compels the company to keep a certain reserve. By this section all assessment companies were forbidden to — 498 — do business in tbe state in tbe future except those wbicb were lawfully doing business bere at tbe time of tbe passage of tbe law and they were required to adopt tbe stipulated premium plan. It appears by tbe published reports of tbe insurance commissioner that at tbe time of tbe passage of this law (cb. 441, Laws 1907) and for some time prior thereto there were no domestic assessment companies doing business or licensed to do business in tbe state. Tbe law inhibits them in tbe future, hence there is no such class as domestic assessment or stijralated premium companies and can be none. There were but three foreign assessment companies doing business in tbe state in 1907 and there is said to be but one now. This company must, of course, be doing business on tbe stipulated premium plan and must- constitute tbe entire class. Tbe reasons already given for upholding classifications as between domestic and foreign level-premium companies apply with greater force to tbe classification as between domestic level-premium and foreign assessment or stipulated premium companies. 2. Passing to tbe consideration of tbe question whether the statute imposes an unlawful burden on interstate commerce tbe argument is that, while tbe business of insurance, i. e. issuing policies, collecting premiums, and paying losses, is not interstate commerce (New York L. Ins. Co. v. Deer Lodge Co. 231 U. S. 495, 34 Sup. Ct. 167), tbe business of loaning money on real estate or other security to the citizens of other states is undoubtedly interstate commerce wbicb is necessarily burdened by tbe tax in question. Tbe investment business of tbe plaintiff is indeed a vast one considered by itself alone. It appears that tbe plaintiff in December, 1911, possessed nearly $150,000,000 worth of foreign mortgage loans, and between $70,000,000 and $80,000,000 worth of foreign bonds. Tbe carrying on of such a business necessarily requires constant transmission from state to state of applications for loans, abstracts, notes, bonds, mortgages, policies, drafts, and other — 499 — papers, to say nothing of the employment of agents in the various states where the loans are made. It is said that the foreign investment branch of the business is not interstate commerce because it is a mere necessary incident of, and cannot be considered apart from, the insurance business, which, as we have seen, is held by the federal supreme court not to be interstate commerce. The argument may be sound, but we do not pass upon it. We shall undertake no voyage of discovery on the sea of interstate commerce unless we are compelled to do so. That sea. is a troubled one, full of rocks and shoals, as yet imperfectly charted. We do not find ourselves compelled to embark upon it in this case. If, as argued by the plaintiff, the investment business be a separate business and a form of interstate commerce, the answer is that the law places no burden upon that business. It requires the payment of a licc.ise fee for transacting life insurance business in this state. The plaintiff is not required to transact this last named business; it may do so or not, as it pleases. If it does not do so, it may transact all the investment business which it desires to transact without paying any license fee under this law. It is very well established by federal decisions that when the state exercises its legitimate and rightful power of taxation of an occupation or' privilege it may rightfully measure that taxation either by property or the receipts from property neither of which are in themselves taxable. Maine v. G. T. R. Co. 142 U. S. 217, 12 Sup. Ct. 121, 163; Flint v. Stone Tracy Co. 220 U. S. 107, 31 Sup. Ct. 342; Baltic M. Co. v. Massachusetts, 231 U. S. 68, 34 Sup. Ct. 15. In the last cited case it is said in the opinion: “It is the commerce itself which must not be burdened by state exactions which interfere with the exclusive federal authority over it. A resort to the receipts of property or capital employed in part at least in interstate commerce, when such receipts or capital are not taxed as such but are taken as — 500 — a mere measure of a tax of lawful authority within the state, has been sustained” (citing cases). These cases seem to us decisive of the question here. The receipts from the foreign investment business are simply used as measuring in part the amount of the tax to be levied, not on that business nor on the receipts themselves, but on the business of life insurance conducted by the plaintiff, a subject of taxation which is unquestionably within the legitimate taxing power of the state. 3. A separate contention, affecting a part only of the tax collected, is yet to be considered. It appears by the complaint that the total income of the company by which the license fee for the year ending .December 31, 1911, was measured was $16,013,101.16, of which sum $2,163,808.84 consisted of interest on premium notes and policy loans or liens. Receipts of the same character, though differing somewhat in amount, were included in the income of the following year. The plaintiff’s claim is that these receipts are not “income within the meaning of the law,” and hence that a ratable proportion of the license fee paid should be recovered, irrespective of the result on the general question of the constitutionality of the law. It appears that the so-called policy loans are made to policyholders by virtue of a clause in the. policies which declares that, on request of the assured and upon sole security of the policy properly assigned, the company will advance, at a rate of interest not exceeding six per cent, per annum, an amount which, with interest, shall equal the cash surrender value of the policy. The argument is that, while these arrangements are called “loans,” they are in fact but advance payments of amounts already owing to the policyholder and the so-called interest is simply an additional premium for continued insurance, and reliance is placed on the case of New York L. Ins. Co. v. Assessors, 158 Fed. 462, affirmed in Orleans Parish v. New York L. Ins. Co. 216 U. S. 511, 30 Sup. Ct. 385. — 501 — Tbe state makes a preliminary objection to tbe consideration of this claim to tbe effect tbat it has never been presented •to tbe legislature and hence tbat the court, under sec. 3200, Stats., has no jurisdiction to consider it. Examination of tbe claims presented to tbe legislature by tbe plaintiff, copies of which are attached to tbe complaint, certainly show tbat tbe invalidity of tbe whole tax by reason of tbe unconstitutionality of tbe law was tbe contention chiefly relied upon. The claims, however, both contained tbe distinct statement tbat tbe tax complained of was “in excess óf tbe amount legally required” under tbe law in question, “portions of said amount being derived from a percentage of amounts not constituting taxable incomes of said company,” and tbe claims also prayed for refund of tbe amounts paid, “or such portions thereof as may be ascertained tbe state was not entitled to receive.” We are not disposed to draw fine lines on this question. While tbe plaintiff’s claim did not go into details, it did certainly make tbe distinct assertion tbat there were portions of tbe fee which were illegal and which it sought to recover even if tbe law itself were to be held constitutional. Tbe plaintiff argues tbat, if these so-called interest payments be in fact premiums, they are premiums collected outside of tbe state on policies held by nonresidents and hence are not part of tbe income made by tbe law tbe measure of tbe taxation. Tbe complaint charges tbat “tbe proportionate part of tbe business transacted by it through commercial intercourse with residents of states other than Wisconsin was on December 1, 1911, approximately as follows: “1. “2. “3. t “4. Of tbe total amount of outstanding policy loans or advances more than 93 per cent.” Eor tbe purposes of tbe case we assume tbat this should be — 502 — construed as meaning that more than ninety-three per cent, of the policy loans are made to nonresidents of Wisconsin and lienee that the payments of interest thereon are payments made outside of the state by nonresidents thereof. Even with this assumption we do not think the plaintiff’s contention can be sustained. In the case cited (Orleans Parish v. New York L. Ins. Co. 216 U. S. 517, 30 Sup. Ct. 385) the state legislature of Louisiana had passed a law attempting to tax a foreign insurance company on such policy loans as “credits” within the state. The trial court and the United States supreme court held that they were in fact but advance payments made by the insurance company, and that the so-called note given as evidence of the advance did not represent a debt because there was no debt created, and if no debt no credit. Accepting this doctrine fully it nevertheless does not control this ease. The question here is simply, What did the legislature mean by the words “gross income” and “premiums collected” ? If they used these words in their ordinary everyday sense (and there is nothing to show to the contrary), then the case cited has no appreciable bearing on the present controversy, because it must be admitted at once that the interest payments on policy loans have never been called premiums either by the plaintiff or by the public generally. If they are not “premiums” within the meaning of that word as used in the act they are necessarily a part of the “gross income” upon which’ the three per centum must be calculated. The fact that in a logical sense they may possess more of the characteristics of premiums than of credits cuts no figure. The controlling question is whether the legislature intended to include them when it used the word “premiums.” We are clearly of opinion that there was no such legislative thought. Our conclusion is that the complaint states no cause of action. — 503 — By the Court. — Demurrer overruled as to the first and second grounds and sustained as to the third ground, and judgment ordered that complaint be dismissed on the merits with costs.