State Board of Insurance v. Petroleum Casualty Co. , 13 Tex. Sup. Ct. J. 69 ( 1969 )

CALVERT, Chief Justice

(dissenting).

I respectfully dissent.

As pointed out in the majority opinion, the question in this case is whether we should hold that, in enacting that part of Article 7064 described in the opinion as Article 7064(7), the Legislature meant what it said in plain language or what we think it meant to say. The true question thus posed is whether we should hold that the Legislature intended to say, “[f]or the purposes of this Act, Texas securities are defined as * * * (7) any other property in this State in which by law such insurance carriers may invest their funds,” as the statute expressly provides, or should hold that the Legislature intended to say, “[f]or the purposes of this Act, Texas securities are defined as * * * (7) Texas property in the sense of having originated in the State and having a direct and beneficial relationship to the domestic economy of this State,” as the majority expressly rewrites it.

As a basis for rewriting the statute, the majority holds, as it must, that the expression, “property in this State”, is “not clear of ambiguity.”' How and wherein it is ambiguous is not indicated in the majority opinion. The word “property” can hardly be held to be ambiguous because it is expressly defined or explained. The “property” referred to is the “property * * * in which by law such insurance carriers may invest their funds.” The property in which by law the insurance carriers may invest their funds is expressly itemized in Articles 2.08 and 2.10 of the Texas Insurance Code. There surely can be no ambiguity here.

But the statute further provides that to be a “Texas Security” the property must be “in this State.” Perhaps it is in this expression that the majority finds ambiguity. A writing is not usually held to be ambiguous unless it is susceptible of more than one reasonable interpretation. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951). It seems to me that, in the context in which the phrase is used, it can have only one reasonable meaning and that is that the property be physically situated in this State. According to the interpretation of the majority, the property can be “in this State” although it is not physically located in this State and does not even have a taxable si-tus in this State. How property can be “in this State” when it is both physically and taxably out of this State, escapes me.

Apparently, what the majority is really saying is not that the phrase “property in this State” is ambiguous, but that the Legislature didn’t mean to say what it said. We are reminded of the words used by our late-lamented associate, James R. Norvell, in Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961), at page 109, where, upon being urged to hold that the Legislature had really intended to use the word, “Chapter”, instead of the word, “Title”, in referring to a section of our statutes, he stated:

“This brings to mind the maxim that ‘If Parliament does not mean what it says, it must say so.’ * * * If we were to approach the problem from the standpoint of the wisdom of the Legislature [sic] enactment, we could perhaps conclude that the Legislature may have had real property limitations only in mind. * * * We may not invade the legislative field. * * * ‘The rule permitting departure from the literal meaning has no application at all where the statute is unambiguous and embodies a definite meaning and the intention of the legislature as expressed in the law is reasonably free from doubt.’ 50 Am.Jur. 239, Statutes, § 241.”

The rule thus announced in City of Graham was staunchly adhered to in spite of the fact that the legislative history of the statute, as pointed out in the dissenting opinion of Justice Smith (354 S.W.2d 126-128), clearly indicated that the Legislature meant to use the word, “Chapter”, rather than the word, “Title”.

A responsible statement of the same rule of statutory interpretation is found in this Court’s opinion in Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66 (1920), at page 70, as follows:

“Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the in-tendment of a statute, giving full effect to all of its terms. But they must find its intent in its language, and not elsewhere. They are not the law-making body. They are not responsible for omissions in legislation. * * *”

Reverting to the facts of this case, the State argues that United States Treasury bills are not State securities but are Federal securities. What the State and the majority seem to overlook is that, for the purposes of Article 7064, or for that matter for any and all other purposes, the Legislature can define Texas securities as including Federal securities if it wishes so to do. That is exactly and precisely what it has done in Article 3.34, Texas Insurance Code, in defining and prescribing “Texas securities” in which life insurance companies are required by Article 3.33 to invest 75% of their “Texas Reserves”. By the provisions of Article 3.34, the term, “Texas Securities”, is defined as including “1. U. S. Bonds and Obligations,” among which are “treasury bills”. So it is that the Legislature by the so-called omnibus clause included as a Texas security in Article 7064, United States Treasury bills, “in this State,” just as surely as if it had expressly said so. By the provisions of Article 2.08, Texas Insurance Code, respondent is authorized to invest in “[bjonds or other evidences of indebtedness of the United States of America * * By Article 7064(7), “Texas Securities”, include, “any other property in this State” in which by Article 2.08 respondent was authorized to invest. The legal effect of reading the two statutes together is the same as if Article 7064(7) read, “any bonds or other evidences of indebtedness of the United States of America in this State.”

I agree with the admonition that if the Legislature did not mean what it said in the omnibus clause of Article 7064, it, not this Court; should say so. I know of no constitutional provision which would preclude the Legislature from saying that, for Article 7064 purposes, Texas securities include “property in this State in which by law such insurance carriers may invest their funds,” and thus include United States Treasury bills. I would also hold that the phrase, “in this State”, means physical location in this State, would affirm the judgment of the Court of Civil Appeals, and would leave the rewriting of the omnibus clause to the Legislature.

SMITH and WALKER, JJ., join in this dissent.