Northwestern Mutual Life Insurance v. State

The following order was filed February 10, 1928:

Per Curiam.

Appellant commenced this action in the circuit court for Dane county, Wisconsin, against the respondent on the 10th day of January, 1924, to recover taxes paid under protest on the ground that sec. 76.34, Wisconsin Statutes of 1923, was unconstitutional in so far 'as it required appellant to include in its annual license fee or tax three per cent, of all interest received from bonds and obligations issued by the United States.

Respondent demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

On May 28, 1925, the circuit court entered an order sustaining the demurrer, with leave to amend. Appellant elected to stand upon the complaint, and on June 17, 1925, judgment was entered dismissing the complaint upon the merits, with costs.

On appeal to this court the judgment was affirmed on February 9, 1926 (Northwestern Mut. Life Ins. Co. v. State, 189 Wis. 103, 207 N. W. 430).

The case was taken by writ of error to the Supreme Court of the United States and the judgment of this court reversed (Northwestern Mut. Life Ins. Co. v. Wisconsin, 48 Sup. Ct. Rep. 55), the United States Supreme Court holding that sec. 76.34 was unconstitutional in so far as it undertook to impose a charge-of three per cent, upon all interest received by appellant from bonds and securities of the United States. In accordance with such holding, the judgment of this court was reversed and the cause remanded for further proceedings as required by the opinion of the United States Supreme Court.

The mandate of the United States Supreme Court having been received by the clerk of this court and filed,—

It is now here ordered and adjudged that, pursuant to the command thereof, the judgment entered in this court in said action on the 9th day of February, 1926, affirming the judg.ment of the circuit court for Dane county herein, be and the same is in all things vacated and set aside; and

It is further ordered and adjudged that this cause be and the same is hereby remanded to the circuit court for Dane county, Wisconsin, with directions to said court to reverse its judgment in this action dismissing the complaint upon the merits; and said court is further directed to reverse its order entered May 28, 1925, and enter an order overruling the demurrer of the defendant and for further proceedings according to law.