I concur in the affirmance of this case and in the conclusions stated in the opinion prepared by Mr. Justice BRADY, and my only purpose in writing this concurring opinion is to state my construction of article 4764 of the Revised Statutes, which article is copied in Justice BRADY'S opinion.
That statute clearly and distinctly states that in ascertaining the personal property belonging to insurance companies for the purpose of taxation the reserve shall be deducted from the total value of its assets, and it then proceeds to define what the Legislature meant by the term "reserve," as follows: "Being the amount of the debts of insurance companies by reason of their outstanding policies in gross."
Attention is called to the fact that the legislative definition, defining that which should be deducted from the total valuation of assets, does not embrace any fund or property whatever, and includes nothing but debts of a particular kind. A debt is, in no sense whatever, property belonging to the debtor, and therefore it cannot be by him sold or otherwise invested. It may be true that insurance companies and others may designate the liability of such companies to their policy holders as a reserve fund, but as a matter of fact they are mere debts, and constitute no higher claim against the assets of such companies than do the debts of other creditors; therefore, correctly speaking, there is no such thing as a reserve fund of insurance companies upon which policyholders have a superior claim. But be that as it may, in reference to taxation the Legislature has defined what it meant by the use of the term "reserve." That definition includes nothing except debts of insurance companies by reason of their outstanding policies, and such being the case, even if they have certain sums of money set aside as a reserve fund for the purpose of paying such debts, it is the amount of the debts and not the amount of such fund which the statute declares shall be deducted from the gross assets; and therefore is seems plain to me that in this case the insurance company was entitled to deduct its entire indebtedness to policy holders, regardless of how any of its funds may have been invested. In this case, when that and the other deductions authorized by the statute are made, the remainder is less than the amount the insurance company had invested in bonds issued by the federal government, and as they are exempt it had no personal property subject to taxation. *Page 704
I concur with the trial court and Mr. Justice BRADY that for the purpose of taxation insurance companies have the right to insist that all property exempt from taxation shall be excluded in determining upon what property and at what valuation taxes shall be paid.