In People v. Kent, 300 Ill. 324, it was held that the tax imposed by section 30 of the act of 1869 on net receipts of foreign insurance companies was a tax on the business of insurance and not a property tax, and section 1 of article 9 of the constitution, which authorized the General Assembly to tax, among other things, insurance interests or business in such manner as it from time to time directed by general law uniform as to the class upon which it operates, was referred to as the authority justifying the tax. This view was followed in People v. Barrett, 309 Ill. 53. In those cases there was no attack on the constitutionality of section 30 as depriving foreign insurance companies of the *Page 606 equal protection of the law and due process of law under either the Federal or State constitution, but the constitutional objection made to the section was that the tax was a tax upon personal property and subject to the constitutional requirement of uniformity in respect to persons and property and was regulated by the provisions of the general Revenue act. The question of the denial of due process and equal protection of the law might have been presented in the Kent case but was not, and nothing is said about it in the opinion. It was not presented in the Barrett case, which was a controversy between the city of Chicago and the board of review of Cook county, whose purpose was to compel the board of review to perform the duty imposed upon it by law in assessing the tax upon net receipts of foreign insurance companies imposed by section 30. In those cases it was distinctly held that the tax was a tax on the business of insurance — an excise. The question of discrimination was not determined or considered when the decree of the superior court of Cook county in the case now under consideration was affirmed by this court. It was held that the tax was a privilege tax for the privilege of continuing to do business in this State, which was not subject to the constitutional limitations for the levying of taxes on property, but might be exacted and levied in any manner or by any method which the legislature saw fit to adopt. (HanoverFire Ins. Co. v. Carr, 317 Ill. 366.) The distinction between a tax imposed upon a foreign corporation for the privilege of entering a State for the transaction of business and one imposed upon a business transacted in the State is shown in the dissenting opinion in that case, which is referred to for a discussion of the question. As stated in the decision of the Supreme Court of the United States in Hanover Fire Ins. Co. v.Carr, 272 U.S. 494, reversing the judgment of this court, it is settled that foreign corporations may not do business in a State except by the consent of the State, which may exclude them *Page 607 arbitrarily or impose such conditions as it chooses upon their engaging in business within the State, subject to the qualification that the State may not exact as a condition of a corporation engaging in business within its limits that the rights secured to it by the constitution of the United States may be infringed. A number of illustrations of this qualification are cited in the opinion of the Supreme Court. Answering the argument that the Federal Supreme Court must accept the construction of section 30 by the State Supreme Court, and that, since the tax levied is sustained by such construction and has been held by the State court to be an indispensable condition upon which the company may continue to do business in Illinois, the Federal court is bound by those conclusions, the court said that the interpretation put upon such a State law by the Supreme Court is binding upon the court as to its meaning, but it is not true that the Federal 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 the violation of the Federal constitution. Many cases were cited upholding this proposition. The court then proceeded to determine the question of the application of the equal protection clause by considering the stage at which the foreign corporation is put on a level with domestic corporations in engaging in business within the State, and held that under the law of 1919 (Laws of 1919, p. 628,) the authority granted by the Department of Trade and Commerce, for which the company paid two per cent of the gross premiums received the previous year by it, put it on a level with domestic insurance companies doing business of the same character, and that the tax imposed by section 30 of the act of 1869 was a discrimination in favor of domestic insurance companies of the same class and in the same business and was a denial of the equal protection of the laws. It was said that "under the previous decisions of the Supreme Court of Illinois, when the *Page 608 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 but 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 section 30 and in the practice under it. But an occupation tax imposed upon one hundred 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 sixty per cent of the full value of that property."
This court by the opinion of the majority overrules its former decisions in the Kent and Barrett cases as to the meaning of section 30 of the statute, deliberately adjudged after full consideration, not because the conclusion is reached that those decisions did not arrive at the correct meaning of the section, but because it is now determined by the supreme authority on the question that the section is unconstitutional. The reason given for the acquiescence of the State authorities and the foreign insurance companies in the improper construction of section 30 and in the practice under it may have been regarded by the taxing authorities and the companies as a sufficient reason for such acquiescence, but it is not a sufficient reason for this court, in order to save a part of the tax, giving to the section a *Page 609 construction inconsistent with its true meaning, and enforcing the law not as it was made by the legislature but as the court by an improper construction of its meaning has amended it. The Supreme Court of the United States has held the tax not to be a privilege tax, but, as was held in the Kent case, an occupation tax; a tax on the business; an excise. The Kent case holds that the general Revenue act for the assessment of personal property has nothing to do with it. The Supreme Court of the United States does not hold to the contrary. If it is an occupation tax, the rules for the assessment of property can have nothing to do with it and the provisions of the general Revenue act no application. The Supreme Court does not hold that they have any application. Its holding is, that under the practice which it is stipulated prevailed, of reducing the amount of the net receipts upon which the occupation tax was based in the same proportion as the assessed full value of property was reduced, it might have been said that there was no substantial inequality between domestic and foreign companies, but no basis appears for holding that an occupation tax imposed upon fifty per cent or thirty per cent of the net receipts of foreign companies would be fairly equivalent to the tax which domestic companies would have to pay on all their personal property, including their net receipts or what they were invested in, or would be more or less than fairly equivalent, or that the same tax imposed upon one hundred per cent of the net receipts of the foreign companies would be a heavy discrimination in favor of domestic insurance companies.
The two methods of taxation are entirely different: one based upon the valuation of property, having no reference to the business transacted; and the other upon the basis of business transacted, having no reference to the value of property. They have no common measure — no standard of comparison. There is nothing in this record to show the relation of the net receipts of foreign insurance companies *Page 610 as subjects of taxation to the property of domestic insurance companies as subjects of taxation, and there is nothing to show that there was no substantial inequality as between domestic corporations and foreign corporations, for the reason that the net receipts received during the year would yield a tax fairly equivalent to that which the domestic companies would have to pay on all their personal property. The Supreme Court of the United States has held, in substance, that this court erred in holding the tax imposed by section 30 to be a privilege tax; that it is not a privilege tax but a tax on the insurance business; that the foreign insurance company, upon complying with the law of 1919 and receiving the license of the Department of Trade and Commerce, is admitted to do business in Illinois upon a level with domestic companies doing business of the same character; that the imposition upon such foreign corporations of the tax upon their net receipts imposed by section 30 in addition to the tax on their property which they must pay under the general Revenue law, while domestic insurance companies pay a tax only upon their property and none upon their net receipts, is a violation of the constitution of the United States.
The cause has been remanded to this court for further proceedings not inconsistent with the opinion of that court. We cannot comply with this mandate by overruling our former decisions and directing the rendition of a decree for a part of the tax imposed by this unconstitutional law. This tax on the business of foreign companies is not separable. The General Assembly either had power, within the limitations of the State and Federal constitutions, to pass it or it had not, and it is inconsistent with the decision of the Supreme Court to hold that it had such power.
In our opinion the decree should be reversed and the cause remanded to the superior court, with directions to make the temporary injunction perpetual. *Page 611