FIREMAN'S FUND INS. CO. v. VON ROSENBERG, Commissioner, 132 S.W. 467

GAINES, C. J. This is a petition for a writ of mandamus to compel Fred C. Von Rosenberg, Commissioner of Banking and Insurance, to assess against all the insurance companies in the state the $15,000 provided by the statute of April 19, 1909 — a tax imposed for the purpose of paying the expenses incident to the action of the state fire rating board. It is alleged in the petition that to create this fund the respondent has selected 44 out of 122. companies liable for the' tax, and has imposed the payment of the $15,000 upon them, and has exempted 78 companies from the payment of any part of the tax.

The prayer is to compel the respondent to take into account in levying the tax all the insurance companies which did business in the state in the year 1909, and to accept the tax so levied upon relator as its part of said tax. The respondent, in his answer, relies upon that provision of

section 16 of the act of April 19, 1909 (Acts 1909, c. 18), which reads as follows: “Provided, that the collections from fire insurance companies provided for in this

section shall not be made for any year during which any such company shall be liable under the laws of this state, to the payment of an occupation tax at a rate of not less than two and one-half per cent of the gross premiums received, less deductions for reinsurance and return premiums on canceled risks.” But we are of opinion that this provision does not help his case. It seems to us that the provision was inserted with a view to meet future legislation, and not with a view to the requirements of existing statutes. The previous part of

section 16 makes it the duty of the Commissioner of Banking and Insurance “to collect from each fire insurance company which transacted business in this state during the preceding calendar year or any portion thereof, the proportion of said sum of $15,000.00 which the gross premiums collected by such company during such year from persons or upon property located in this state bears to the aggregate amount of such gross premiums so collected during such year by all fire insurance companies transacting business in this state: Provided, that in computing such gross premium receipts there shall be deducted therefrom the amount paid out for reinsurance and for returned premiums on cancelled risks.” This tax, it will be seen, is upon “each fire insurance company,” and there is nothing to indicate any purpose to except any.

Why leave this exception to be determined by a calculation of the percentage which the tax imposed bears to the gross premiums received by such company, after deducting for reinsurance and canceled risks? Besides, the language of the exemption seems to refer to future laws, and not to those there made for levying the tax. The companies referred to in the exemption shall not be assessed when such company shall be liable under the laws of this state seems to refer to laws thereafter to be passed. It occurs to us that there is another reason why the construction claimed by respondent should not prevail.

It is doubtful whether the act, so construed, would be valid under the Constitution of the state and of the United States. Under that construction, the difference of a cent might exempt one company and make another liable for the tax. Would so small a difference as this afford a proper basis for a classification? We have had some doubt whether a writ of mandamus would lie in a case like the present. But we have concluded that it will.

The statute provides that, if a company upon demand fails to pay the tax, the Commissioner of Banking and Insurance shall within 3,0 days revoke its authority to do business in this state. We see no way to prevent this result, except by compelling the respondent to assess the proper amount of the taxes. Accordingly the mandamus has been so awarded.