On Rehearing.
LOONEY, Justice.In their motion for rehearing, appellants contend that we erred in upholding the constitutionality of article 5057a, Vernon’s Ann. Oiv. St., thereby, in effect, holding that appellee’s reinsurance reserve in the sum of $1,542,532.05 is deductible from its assets for taxation purposes.
On reconsideration, the majority are of opinion that the holding complained of is erroneous. Such holding is necessarily predicated on the concept that life and fire insurance ‘reserves are of the same nature, are liabilities, hence not taxable as property belonging to the companies.
The calculated reserve of a life insurance company belongs to the policyholder. The statute makes it the duty of the commissioner of insurance to calculate the net value of all life policies, and he is charged with the duty of seeing to it that the company keeps on deposit solvent securities sufficient to protect policyholders in the amount of the net value of their policies (see subdivisions 3 and 4, art. 4682, and subdivisions 1 and 2, art. 4688, R. S.). Such, however, is not the nature of a fire insurance reserve for unexpired fire risks (see subdivision 7, art 4682, R. S.), composed of a portion of the gross premiums collected but not yet earned on policies in force. Such premiums may never be used for the purpose reserved, that is, for reinsurance, as a fire policy is for a limited term only and may expire without a necessity arising for reinsurance, which in its very nature is contingent. The difference in the character of reserves of life and fire companies, we think, determines their respective taxabilities.
In the recent case of State ex rel. v. Gehner, 320 Mo. 691, 8 S.W.(2d) 1068, 1072, the Supreme Court of Missouri, quoting from an annotation in 13 A. L. R. 186, 204, on the subject of taxing insurance reserves, had this to say: “There is an essential distinction between the ‘legal reserve’ of a life insurance company and the ‘unearned premiums’ or ‘premium reserve’ of an insurance company other than life. ‘The reserve fund of a life insurance company is properly regarded as an indebtedness, because the death of every person it has insured is inevitable, and its disbursement in payment of policies is an absolute certainty. The only uncertainty in the matter is the order in which the policies kept in force will have to be paid. * * * The reinsurance reserve in fire insurance is a fund composed of the portions of gross premiums of policies in force, which have not been earned by the insuring company, and its chief purpose is to enable the company to rid itself of liability for future possible claims when continued excessive losses threaten to use up its surplus and impair its capital to such an extent as may endanger the security of the policy holders, either by paying back the unearned premiums and canceling the policies, or by paying them over to a new insurer to assume and carry out the policy risks.’ ”
The annotation in 13 A. L. R., supra, is replete with citations from different jurisdictions, practically in accord on the proposition that the reserve of a life insurance company is an indebtedness, in that death of the insured is inevitable, and the disbursement of the reserve in payment of policies is certain. On the other hand, the authorities are also in accord in holding that, as a fire policy is for a limited term only, the insurer may never *1062have to reinsure, hence the reserve is based upon a mere contingency.
A ease in point is Wheeling Fire Ins. Co. v. Board of Equalization, 111 W. Va. 161, 161 S. E. 427, 431, 78 A. L. R. 544, where the Supreme Court of Appeals of West yirginia discussed every phase of the question now under consideration. That court said: “The controlling question is whether unearned premiums of an insurance company are ‘indebtedness’ within the meaning of our statute, above quoted. In approaching this question, it must he borne in mind that the Constitution requires that all property shall be taxed to bear the burdens of government except designated properties which may, by law, be exempted. It must be clear, therefore, that the unearned premiums in the hands of the company, used and invested by it, constitute ‘indebtedness’; otherwise it would escape taxation. If it be indebtedness, then some creditor of the company owns that indebtedness and the property would be taxed to that creditor as money, credits, or investment. In this manner only would the sum of money here involved be taxed. Who is that creditor? It is argued that the policyholder is the creditor, for he has a right to cancellation of his contract and a return of the unearned premiums. When he does so and receives back- the money, he would be taxed on the money due him, or in his hands. We do not think it would be practical to assess his right of cancellation under the policy contract. The statute should be strictly construed tp prevent property from being withdrawn from taxation. * * * The liability of the company to repay to policyholders if perchance they call for cancellation, the losses which may occur by fires, if, perchance, fires occur, and costs for reinsurance, if, perchance, reinsurance be issued, depends upon contingencies which may or may not happen. When these contingencies happen, the liability is changed to a fixed indebtedness to some particular person. * * * ” Citing People’s Fire Ins. Co. v. Parker, 34 N. J. Law, 479, affirmed 35 N. J. Law, 575; Tripp v. Fire Ins. Co., 12 R. I. 435. To the same effect see: Trenton v. Insurance Co., 77 N. J. Law, 757, 73 A. 606; People ex rel. v. Davenport, 91 N. Y. 574.
A fire insurance company is not compelled by any law of this state to reinsure; the nearest approach to such a requirement is found in the provisions of subdivision 1, art. 4932, R. S., as follows: “No fire, fire and marine, marine or inland insurance company doing business in this State shall expose itself to any one risk, except when insuring cotton in bales, and grain, to an amount exceeding ten per cent, of .its paid up capital stock, unless the excess shall be insured by such company in some other solvent insurance company legally authorized to do business in this State.” Whether or not a fire company will ever expose itself in any one risk, in excess of 10 per cent, of its paid-up capital stock, requiring the excess to be reinsured as provided by this statute, is contingent, hence may never occur.
So, in harmony with the consensus of opinion on the subject, we conclude that the item of $1,542,532.05, claimed by appéllee as its unearned premium reserve, is taxable, unless it is exempt from taxation under the provisions of article 5057a.
The controlling provisions of the Constitution, being so well known, will not be set out at length in this connection. Section 1, art 8, provides that “all property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value,” mentioning certain exceptions not involved here. Section 2, art. 8, authorizes the Legislature, by a general law, to exempt from taxation certain enumerated properties, not including property of the nature of that under consideration, concluding with the language, “ * s * And all laws exempting property from taxation other than thé property above mentioned shall be null and void.” Section 4, art. 8, provides that “the power to tax corporations and corporate property shall not be surrendered or suspended by act of the Legislature, by any contract or grant to which the State shall be a party.”
Therefore, having determined,. as we think correctly, that appellee’s unearned premium reserve represents property, and not indebtedness, in view of the provisions of the Constitution just referred to, we think the legislative attempt to exempt the reserve from taxation was ineffectual, and that the provision of article 5057a, authorizing fire insurance companies to deduct such reserve from the total valuation of their assets rendered for taxation, is unconstitutional and void.
We do not deem it necessary to lengthen the discussion. The reserve being property belonging to appellee, neither excepted by the Constitution from the general rule, nor included in any class of property the Legislature was authorized to exempt from taxation, its attempt to do so was and is “null and void.” In this connection also see: Graham v. City of Fort Worth (Tex. Civ. App.) 75 S. W.(2d) 930; City of San Antonio v. Y. M. C. A. (Tex. Civ. App.) 285 S. W. 844; Santa *1063Rosa Inf. v. City of San Antonio (Tex. Com. App.) 259 S. W. 926; Trinity, etc., Church v. City of San Antonio (Tex. Civ. App.) 201 S. W. 669; City of Houston v. Scottish, etc., Ass’n, 111 Tex. 191, 230 S. W. 978; Texas Employers’ Ins. Ass’n v. City of Dallas (Tex. Civ. App.) 5 S.W.(2d) 614.
Therefore, appellants’ motion for rehearing is sustained, the original holding of the court, affirming the constitutionality of article 5057a, in the respect discussed, is set aside, and the same is held unconstitutional and void, affording appellee no right or authority to deduct its said reserve from the total valuation of its taxable assets. Chief Justice JONES dissents from the view herein expressed, and adheres to the doctrine announced in the original opinion.