This is a writ of error under § 237 of the Judicial Code to the judgment of the Supreme Court of Illinois, affirming a decree of the Superior Court of Cook County dismissing the bill of the Hanover Fire Insurance Company, a corporation of New York, against Patrick J. Carr, County Treasurer and ex-officio tax collector of Cook County, Illinois. The prayer was for an injunction to prevent the distraint of the property of the complainant under a warrant for the collection of $10,678.50, as taxes due under a law of Illinois, which law, the bill averred, denied to the complainant the equal protection of the laws under the Fourteenth Amendment of the Federal Constitution.
The defendant filed an answer denying the claims of the bill and, after a reply, the case was heard by the trial court, which made findings of fact in its decree based on a stipulation by the parties, and entered a decree as set forth below.
The law in question reads as follows:
"Foreign Companies. — Tax on net receipts. Section 30. Every agent of any insurance company, incorporated by the authority of any other State or government, shall return to the proper officer of the county, town or municipality
This had been in force since 1869 and was part of the Act of March 11, of that year, entitled "An Act to incorporate and to govern fire, marine and inland navigation insurance companies doing business in the State of Illinois." The section was amended to the above form by an Act approved May 31, 1879.
By section 22 and other sections of the original Act of 1869 (Cahill's Ill. Rev. Stat. 1925, c. 73, § 150, p. 1402), it was made unlawful for a foreign insurance company to transact any insurance business in the State unless it had a prescribed amount of capital, appointed an attorney in the State on whom process of law could be served, filed a properly certified copy of the charter or deed of settlement of the insurance company, showing its name and the place where located, the amount of its capital and a detailed statement of its assets, together with its indebtedness, the losses adjusted and unpaid, the amount incurred and in process of adjustment, and a copy of its last annual report. It was required also to deposit with the Director
By the Act of June 28, 1919 (Cahill's Ill. Rev. Stat. 1925, c. 73, § 79, p. 1390), it was provided that each non-resident corporation licensed and admitted to do an insurance
By § 12 of the same act (Cahill's Ill. Rev. Stat., c. 73, § 90, p. 1391), it was provided that, if any corporation should fail or neglect to make any report, or refuse to pay any tax assessment within thirty days after the same became due, the Department of Trade and Commerce should have power to revoke its license to transact the business of insurance in the State, or to suspend it until the reports were filed or the taxes paid.
The complainant insurance company complied with the requirements of § 22 and other unrepealed sections of the Act of 1869, and paid the 2 per cent. tax on its premiums received, as provided by the Act of 1919.
By the General Revenue Act of Illinois, in force since February 25, 1898 (Cahill's Rev. Stat. 1925, c. 120, § 329, p. 2042), personal property is to be valued at its fair cash value, which value is to be set down in one column to be headed "Full Value," and one-half part thereof is to be ascertained and set down in another column headed "Assessed Value." The one-half value of all the property so ascertained and set down is to be the value for all purposes of taxation. It is further stipulated in this case and found by the trial court, that for the
This suit presents the question of the validity of the assessment made by taxing officers under § 30 for the year 1922. The Supreme Court of Illinois, in People v. Barrett, 309 Ill. 53, in an opinion announced June 20, 1923, near the close of the year for which the assessment of 1922 was made, held that the tax under § 30 was an occupation tax, and that no reduction should be permitted to foreign insurance companies in the assessment for taxation of their annual net receipts. The Superior Court found that the actual amount of net cash receipts of the complainant company was $90,824, less by $45,000 than the amount reported by the Board of Review, so that its decree forbade the collection of more than $7,184.18, instead of $10,678.50, for which the warrant had issued, but denied further relief. The complainant insisted that, under the previous practice and proper construction of § 30, as a property tax with due equalization and debasement, the tax assessed should have been $2,155.24, and that this, if anything, is all that should be collected from it. The Supreme Court, by a divided court, three judges dissenting, affirmed the decree of the Superior Court. Hanover Fire Insurance Co. v. Carr, 317 Ill. 366.
The petitioner is an insurance corporation, organized under the laws of the State of New York. By its charter, it is authorized to do a business of insurance against the hazard of fire, marine perils, inland navigation, tornado, theft, explosion, property damage to automobiles and
The situation, then, is that a foreign fire, marine and inland navigation insurance company, like the petitioner, must pay at a rate per centum equivalent to that imposed on personal property, a tax on the cash amount or 100 per cent. of its net receipts from all its insurance business. A domestic fire, marine and inland navigation insurance company pays no tax on its net receipts from any kind of insurance. Both pay on their personal property other than net receipts, as of a fixed date in each year, on an assessment of 30 per cent. of its full value.
The Supreme Court of Illinois for many years held the payment of a tax on the net receipts was a tax on personal property. Walker v. Springfield, 94 Ill. 364; City of Chicago v. James, 114 Ill. 479; Chicago v. Phoenix Insurance Company, 126 Ill. 276; National Fire Insurance Company v. Hanberg, 215 Ill. 378; People v. Cosmopolitan Fire Insurance Company, 246 Ill. 442. The net receipts were the gross receipts from each agency after the operating expenses had been deducted. The losses from fire and other risks assumed were not deducted. National Fire Insurance Co. v. Hanberg, 215 Ill. 378. It is quite apparent from reading these cases that, in practice,
The general principle upon which the Supreme Court of Illinois holds the tax complained of herein to be valid, is that the payment of it is part of the condition which the petitioner as a foreign insurance company is obliged to perform, in order to maintain and retain its right to do business in the State. It was settled in the Bank of Augusta v. Earle, 13 Pet. 519; Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410, and Horn Silver Mining Company v. New York, 143 U.S. 305, that foreign corporations can not do business in a State except by the consent of the State; that the State may exclude them arbitrarily or impose such conditions as it will upon their engaging in business within its jurisdiction. But there is a very important qualification to this power of the State, the recognition and enforcement of which are shown in a number of decisions of recent years. That qualification is, that the State may not exact as a condition of the corporation's engaging in business within its limits that its rights secured to it by the Constitution of the United States may be infringed. This is illustrated, in respect of the breach of the commerce clause of the Constitution, by the cases of Sioux Remedy Company v. Cope, 235 U.S. 197, 203, and Looney v. Crane Company, 245 U.S. 178, 188. It is illustrated in cases in which a provision of a state law revoking the license of a foreign corporation for exercising its constitutional right to remove suits brought against them from the state courts to the federal courts, has been held void, Terral v. Burke Construction Company, 257 U.S. 529; in cases in which the State has vainly attempted to subject foreign corporations to a payment of a tax which is a tax not only on the property of
In the present case, there is no such permanent investment in the State of Illinois as there was in the Greene case in Alabama, but the averments of the bill show, that the complainant has from year to year secured renewal of its license in the State of Illinois, and has through many years past built up a large good will in the State of Illinois, and has associated with it a large number of agents in the various counties of the State, whose connection with it has resulted in a large and profitable business to
It is insisted that we must accept the construction of § 30 by the state Supreme Court, and, as the tax levied is sustained by its construction and has been held by the court to be an indispensable condition upon which the petitioner may continue to do business in Illinois, this Court is bound by both those conclusions.
It is true that the interpretation put upon such a tax law of a State by its Supreme Court is binding upon this Court as to its meaning; but it is not true that this Court, in accepting the meaning thus given, may not exercise its independent judgment in determining whether, with the meaning given, its effect would not involve a violation of the Federal Constitution. As said by this Court in St. Louis Southwestern Railway v. Arkansas, 235 U.S. 350, at page 362, where the question was whether a tax law violated the equal protection clause of the Fourteenth Amendment:
"Upon the mere question of construction we are of course concluded by the decision of the state court of last resort. But when the question is whether a tax imposed by a State deprives a party of rights secured by the Federal Constitution, the decision is not dependent upon the from in which the taxing scheme is cast, nor upon the characterization of that scheme as adopted by the state court. We must regard the substance, rather than the
This view has been upheld in many cases. Western Union Telegraph Company v. Kansas, 216 U.S. 1, 27; Ludwig v. Western Union Telegraph Company, 216 U.S. 146; Sioux Remedy Company v. Cope, 235 U.S. 197; St. Louis Cotton Compress Company v. Arkansas, 260 U.S. 346. In the last case, the question was whether a foreign corporation doing business in Arkansas could be required by a law of the State to pay a so-called occupation tax, upon premiums paid by it to insurance companies not doing business in Arkansas, for insurance upon property of the corporation in Arkansas, the policies having been issued and accepted outside of Arkansas. This Court held the tax invalid, as a violation of the Fourteenth Amendment. In reaching this conclusion, this Court said (p. 348):
"The Supreme Court justified the imposition as an occupation tax — that is, as we understand it, a tax upon the occupation of the defendant. But this Court although bound by the construction that the Supreme Court may put upon the statute is not bound by the characterization of it so far as that characterization may bear upon the question of its constitutional effect."
In subjecting a law of the State which imposes a charge upon foreign corporations to the test whether such a charge violates the equal protection clause of the Fourteenth Amendment, a line has to be drawn between the burden imposed by the State for the license or privilege to do business in the State, and the tax burden which, having secured the right to do business, the foreign corporation must share with all the corporations and other taxpayers of the State. With respect to the admission fee, so to speak, which the foreign corporation must pay, to become a quasi citizen of the State and entitled to
In this class of cases, therefore, the question of the application of the equal protection clause turns on the stage at which the foreign corporation is put on a level with domestic corporations, in engaging in business within the State. To leave the determination of such a question finally to a state court would be to deprive this Court of its independent judgment in determining whether a federal constitutional limitation has been infringed. While we may not question the meaning of the tax law, as interpreted by the state court, in the manner and effect in which it is to be enforced, we must re-examine the question passed upon by the state court, as to whether the law complained of is a part of the condition upon which admission to do business of the State is permitted and is merely a regulating license by the State to protect the State and its citizens in dealing with such corporation, or whether it is a tax law for the purpose of securing contributions to the revenue of the State as they are made by other taxpayers of the State. Our power and duty in this regard must follow from our decisions, and while the exact question has not heretofore been considered, there can be no doubt that our conclusion finds its complete support in the analogies of other cases in which we have had to determine what our duty is in dealing with the alleged invalidity of state legislation. Bailey v. Alabama, 219 U.S. 219, 239; Corn Products Co. v. Eddy, 249 U.S. 427, 432; Appleby v. New York, 271 U.S. 364; Truax v. Corrigan, 257 U.S. 312, 324, 325. What, therefore, we have
It is plain that compliance with § 30 is not a condition precedent to permission to do business in Illinois. The state Supreme Court concedes this, but its reasoning that payment of the tax under the section is a condition to its doing business in Illinois, which may vary at the will of the State without regard to taxes on similar domestic corporations, is shown by the following passages:
"The fact that a tax is a privilege tax does not necessarily require that it be paid as a condition precedent to entering the State. Such a condition, being precedent, could of course be met but once. However, the greatest financial benefit to such a company flows from the continuation of the privilege to do business. Compensation for that privilege should be based on the benefits actually derived from the business done under such privilege, and such compensation must necessarily be assessed in some manner after the business is done and the benefits thereof received. Section 30 provides the method by which the amount of this compensation shall be determined and assessed." (p. 373.)
"Section 22 of the act relating to fire, marine and inland navigation insurance, aside from specifying certain requirements imposed upon foreign insurance companies seeking to do business in this state and specifying what shall be necessary to secure the right of entry, further provides: `Nor shall it be lawful for any agent or agents to act for any company or companies referred to in this section, directly or indirectly, in taking risks or transacting
The Court then refers to another Act which imposes a penalty for violation of § 30 by placing risks or policies of indemnity upon property in any other manner than through regularly authorized agents, and justifying a revocation of the license for a period of not less than ninety days, and that it shall not be reissued until it appears that there is complete compliance with the laws of the State governing such companies, and until it has been shown that all taxes and penalties and expenses due thereunder have been paid.
"It seems clear, therefore," says the Court (p. 375), "that this tax is levied as compensation for the privilege of continuing their business in the State.
"While the Act of 1919 . . . imposes an annual state tax equal to two per cent. on the gross amount of the premiums received by any foreign insurance company during the preceding year, . . . that fact does not show that the tax imposed on the business of fire insurance by section 30 is not likewise a tax for the privilege of doing
The view of the Court seems to be that the constitutional necessity for equal application of the laws of the State to foreign and domestic corporations properly engaged in business, is avoided if only the State provides that failure to comply with the laws during the period, or at the end of the period, for which the license runs, justifies a revocation of the license pending the period, or a refusal to grant a new license for the following year. We do not think the State may thus relieve itself from granting the equal protection of its laws to a foreign company which has met the conditions precedent to its becoming a quasi domestic citizen. Of course, at the end of the year for which the license has been granted, the State may in its discretion impose, as conditions precedent for a renewed license, past compliance with its valid laws; but that does not enable the State to make past compliance with § 30 a condition precedent to a renewal of the license, if, as we find, that section violates the Fourteenth Amendment; for, as already said, while a State may forbid a foreign corporation to do business within its jurisdiction, or to continue it, it may not do so by imposing on a corporation a sacrifice of its constitutional rights. We have said in Cheney Bros. Co. v. Massachusetts, 246 U.S. 147, and in Kansas City, etc., Railroad Company v. Stiles, 242 U.S. 111, 118, that a State does not surrender or abridge its power to change and revise
We thus reach the question whether a tax imposed upon foreign fire, marine and inland navigation insurance companies on the net receipts of all their business, whether fire, marine, inland navigation or other risks, is a denial of the equal protection of the laws, when domestic insurance companies pay no taxes on such net receipts. Under the previous decisions of the Supreme Court of Illinois, when the net receipts were treated as personal property and the assessment thereon as a personal property tax subjected to the same reductions for equalization and debasement, it might well have been said that there was no substantial inequality as between domestic corporations and foreign corporations, in that the net receipts were personal property acquired during the year and removed by foreign companies out of the State, and could be required justly to yield a tax fairly equivalent to that which the domestic companies would have to pay on all their personal property, including their net receipts or what they were invested in. It was this view, doubtless, which led to the acquiescence by the state authorities and the foreign insurance companies in such a construction of § 30, and in the practice under it. But an occupation tax imposed upon 100 per cent. of the net receipts of foreign insurance companies admitted to do business in Illinois, is a heavy discrimination in favor of domestic insurance companies of the same class and in the same business, which pay only a tax on the assessment of personal property at a valuation reduced to one half of 60 per cent. of the full value of that property. It is a denial of the equal protection of the laws. Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 352, 353; Southern Ry. Co. v. Greene, 216 U.S. 400. Analogous cases are many. Cummings v. National Bank, 101 U.S. 153; Greene v. Louisville R.R. Co., 244 U.S. 499, 516;
One argument urged against our conclusion is that the relation of a foreign insurance company to the State which permits it to do business within its limits, is contractual, and that, by coming into the State and engaging in business on the conditions imposed, it waives all constitutional restrictions, and can not object to a condition or law regulating its obligations, even though, as a statute operating in invitum, it may be in conflict with constitutional limitations. This argument can not prevail in view of the decisions of this Court in well considered cases. Insurance Co. v. Morse, 20 Wall. 445; Western Union Telegraph Company v. Kansas, 216 U.S. 1; Terral v. Burke Construction Co., 257 U.S. 529; Fidelity & Deposit Company v. Tafoya, 270 U.S. 426; Frost v. Railroad Commission, 271 U.S. 583.
The judgment of the Supreme Court of Illinois must be reversed and the case remanded for further proceedings not inconsistent with this opinion.