Insurance Co. of North America v. Commonwealth

Chief Justice Agnew

delivered the opinion of the court,

The question in this case is not doubtful, and were it so it would be our duty to resolve the doubt in favor of the state, lest she be deprived of redress in a higher court. The doctrine of states rights in a sense which robs the federal government of just rights, should not be invoked; but states rights as found in the constitution, forbidding the enumeration of federal rights to deny others retained by the people, and declaring that the powers not delegated by the constitution, nor prohibited by it to the states are reserved to them respectively, or to the people, are justly the object of careful protection by both state and federal courts. The states are the pillars of the Union. Their fall, if dragged down by federal power, must involve both in ruin. It is therefore important that the boundaries of power be sacredly preserved. Yet these lines of demarcation are often faint and evanescent in some cases, but not so we think in this case.

The question here is whether the state can impose upon insurance companies, the creation of her own hands, a tax on all their business, as evidenced by the entire premiums brought into their treasury from all sources. That this is the scope and intent of the law, we hold.

Is this an interference with any grant of federal power, on the ground that a part of their receipts is drawn from sources outside of the state ? We think not. That it is not a tax in the sense of “ imposts or duties laid upon imports or exports” is plain. It is not laid on any property or article of commerce, which can be imported or exported; but is simply a tax on money or its representative — on the results or avails of business — that which belongs to the corporation itself, and not the property of others. It is not a tax on property in another state, but on money which is in the treasury of a corporation within this state.

It is said it transgresses the power of Congress to “ regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” It is not a tax on anything coming in or going out of the state, or upon the means of transportation. It is not laid on any instrument of commerce, either representing or affecting commerce, as a bill of lading accompanying goods transported. It does not affect travellers coming in or going out, or property situate out of the state, in that it touches no interest outside of the state, except in that remote and incidental manner in which state taxation may affect all property entering into the commerce of the state, and which has been frequently held by the Supreme Court of the United States to be no regulation of commerce conflicting with the federal power. It is evident in the outset the case is not governed by the principles settled in such cases as Brown v. Maryland, 12 Wheat. 418 ; Hays v. Steamship Co., 17 How. 596; Steamship Co. v. Port-wardens, 6 Wall. 31; Passenger Cases, 7 How. 283 ; Crandall v. Nevada, 6 Wall. 36 ; Almy v. California, 24 How. 169; Tonnage Tax Cases, 15 Wall. 232; State Tax on Foreign Bonds, Id. 300. All these cases proceed on the ground that the constitutionality of a state tax law must be determined, not upon the form or agency collecting the tax, but by the subject on which the burden is laid: Tonnage Tax Cases, 15 Wall. 272; Mumm v. Illinois, 4 Otto 135. As said in Doyle v. Continental Ins. Co., 4 Otto 341, “ In all eases where the legislation of a state has been declared void, such legislation has been based upon an act or a fact which was itself illegal.” But the subject of this tax, as we have said, has no relation to any article of inter-state commerce, even in a remote and indirect way. The subject — money derived from the receipts of premiums — is not susceptible of regulation by any federal law. In discussing this point we may first consider the person or party taxed — a corporation created by state law, located in the state and amenable only to its laws. It is not a citizen in the sense of the rights of persons secured by the constitution, except for the purpose of federal jurisdiction: Ins. Co. v. French, 18 How. 404; Paul v. Virginia, 8 Wall. 178; Ducat v. Chicago, 10 Wall. 415; Liverpool Ins. Co. v. Mass., Id. 573 ; Railroad Co. v. Harris, 12 Id. 81. Nor can it exercise its powers outside of the state, except by the consent of the state into which it comes: Bank of Augusta v. Earle, 13 Pet. 519; Paul v. Virginia, 8 Wall. 180, 181; Ducat v. Chicago, 10 Id. 410; Ins. Co. v. Morse, 20 Id. 456; Doyle v. Ins. Co., 4 Otto 540. But it derives its faculties from our law; and its power to go out of this state, in pursuit of business permitted elsewhere, it obtains from this state alone. This faculty of action or power to go elsewhere is a home franchise, and is not conferred by the law of another state, by whose permission it exercises the franchise within it. It is this franchise — the power to make money by its business at home and abroad — w'hich this state assumes to control as of right, and the burthen imposed is the price it must pay for the faculty and powers conferred. By the exercise of this franchise it collects the fruits of its business, no matter where it is performed. The money which finds its way into its treasury is the product of these powers conferred by this state. In view of the corporate being thus conferred, the powers thus derived, and the products of business thus gathered, the state necessarily possesses the power to tax the products of its corporate business, for none of them possess in the slightest degree an outside character or interest.

This brings us to consider more specially the subject of the tax. As already stated a tax on gross premiums of insurance is a tax upon the receipts of money, or its representative in notes and bills, and not on property, or any article of commerce; it touches only a fund in the treasury of the company. As was said in the Gross Receipts cases, 15 Wall. 294, “the tax is laid on the gross receipts of the company; and upon a fund which has become the property of the company, mingled with its other property, and possibly expended in improvements, or put out at interest.” See also, Erie Railroad Co. v. Pennsylvania, 21 Wall. 497. This tax is not measured by the subjects of insurance, for be the rates high or low, they do not govern, but the money only after it has passed into the hands of the company. The difference between this tax and that in the Gross Receipt cases is marked. There the receipts were the results of transportation, more nearly approximating a regulation of commerce, and the dissent of the three judges was put upon this ground. But here the tax is on the mere results of business, involving only local transactions, and partaking of no relation to inter-state commerce.

A contract of insurance is merely a guaranty against a loss of property by fire or marine disaster. When on chattels on land or sea, it is a protection merely given to the property, for which a price is paid. This price, or premium, is but a consideration, and the right to receive it rests on the faculty imparted by the state in its charter. Why shall not the state law tax the product of this faculty ? It is no burden on those living outside more than those within the state. The tax on a franchise is admitted to be lawful: Tonnage Tax Cases, 15 Wall. 277 ; Tax on Gross Receipts, Id. 294; Saving Society v. Coite, 6 Wall. 606; Osborn v. Bank United States, 9 Wheat. 859; Brown v. Maryland, 12 Id. 444; Erie Railway v. Pennsylvania, 21 Wall. 497. So the greater the scope of the business of an insurance company the less must be the charge, and hence the spread of its risks into other states cheapens the price.

That a policy is a mere contract of indemnity against loss of property, and not an instrument of commerce, is held in several cases: Paul v. Virginia, 8 Wall. 183; Ducat v. Chicago, 10 Id. 410; Liverpool Ins. Co. v. Mass., Id. 573. In the first case, Justice Field uses this language: “ Issuing a policy of insurance is not a transaction of commerce. The policies are simple contracts of indemnity against loss by fire, entered into between the corporations and the assured for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter offered in the market, as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one state to another, and then put up for sale. They are like other personal contracts between parties which are completed by their signature and the transfer of the consideration. Such contracts are not inter-state transactions, though the parties may be domiciled in different states. The policies do not take effect — are not executed contracts — until delivered by the agent in Virginia. They are then local transactions and are governed by the local law.”

This clearly indicates the nature of the subject. Among the decided cases, we find many much nearer to the border line than this, yet where the legislation of the state has been upheld. Thus a tax on brokers who dealt entirely in the purchase and sale of foreign bills of exchange: Nathan v. Louisiana, 8 How. 73. So a tax on deposits in a savings bank invested largely in bonds of the United States, exempt from taxation : Society for Savings v. Coite, 6 Wall. 594; Provident Institution v. Mass., Id. 612. A tax on shares of stock in a railroad running through several states, in proportion to the length of the road in the state: Delaware Railroad Tax, 18 Wall. 206, 229; and on its income, Id. 231. And a tax on warehouses used as the means of inter-state commerce: Mumm v. Illinois, 4 Otto 114. Also, a tax on the person for shares of stock in corporations in other states: McKeen v. Northampton County, 13 Wright 519, recognised in State Tax on Foreign Bonds, 15 Wall. 325.

Without further elaboration, we are of opinion the tax in this case on the entire premiums of the company is not illegal, or contrary to any provision in the Constitution of the United States.

Judgment affirmed.