I dissent. In my opinion the trial court was correct in holding that the state auditor properly applied the California rate. The case calls for an interpretation of section 6155, Revised Codes, which reads:
"Whenever the existing or future laws of any other state or territory of the United States require of insurance corporations, *Page 62 incorporated by or organized under the laws of this state, having agencies in such other state or territory, or of the agents thereof, any deposit of securities in such state or territory for the protection of policy-holders or otherwise, or any payment for taxes, fines, penalties, certificates of authority, license fees, or otherwise, greater than the amount required for such purposes from similar companies of other states or territories by the existing laws of this state, then, and in every such case, all companies of such states or territories establishing, or having heretofore established, any agency or agencies in this state, are required to make the same deposit for a like purpose with the auditor of this state, and to pay said auditor for taxes, fines, penalties, certificates of authority, license fees, or otherwise, an amount equal to the amount of such charges and payments imposed upon or required by the laws of such state or territory of the companies of this state or the agents thereof."
In considering the question under consideration, we must keep in mind that California also has a retaliatory statute found in section 3664b of the 1935 Supplement of Deering's Codes, page 284 (Pol. Code), reading as follows:
"Tax on gross premiums of insurance companies. Every insurance company or association doing business in this State shall annually pay to the State a tax of two and sixty hundredths per cent. upon the amount of the gross premiums other than gross premiums from ocean marine insurance, received upon its business done in this state, less return premiums and reinsurance in companies or associations authorized to do business in this state; provided, that there shall be deducted from said two and sixty hundredths per cent. upon the gross premiums the amount of any taxes paid by such companies on real estate owned by them in this state. This tax shall be in lieu of all other taxes and licenses, state, county, and municipal, upon such companies or their property, except taxes upon their real estate; provided, than when by the laws of any other state or country, any taxes, fines, penalties, licenses, fees, deposits of money, or of securities, or other obligations or prohibitions, are imposed on insurance companies of this state, doing business in such other state or *Page 63 country, or upon their agents therein, in excess of such taxes, fines, penalties, licenses, fees, deposits of money or securities or other obligations or prohibitions, imposed upon insurance companies of such other state or country, so long as such laws continue in force, the same obligations and prohibitions of whatsoever kind must be imposed by the Insurance Commissioner upon insurance companies of such other state or country doing business in this state."
I think the majority are in error in supposing that a Montana corporation doing business in California would be permitted to deduct any real estate tax paid by it in California from the California premium tax. Montana does not permit a California corporation to deduct real estate taxes, and, hence, under the California retaliatory statute, California would deny that right to a Montana corporation.
Plaintiff relies and the majority count strongly upon the case of Life Casualty Ins. Co. of Tennessee v. Coleman, 233 Ky. 350, 25 S.W.2d 748. The facts there were somewhat similar to those here, but it does not appear in that case that the state of the corporation's domicile (there Tennessee) had a retaliatory statute as is the case with California. The supreme court of Tennessee had already held, as appears from the opinion in that case, that foreign corporations were not subject to municipal taxes. Here, as I view the situation, because of the retaliatory provisions of the California statute, a Montana corporation doing business in California and owning real estate there could not have its real estate taxes deducted from its premium tax, because Montana does not permit such a deduction as to California corporations doing business here.
I think the judgment should be affirmed. *Page 64