(dissenting).
When, on motion for rehearing, this court by the opinion of the majority held article 5057a, Vernon’s Ann. Civ. St., unconstitutional, the writer dissented, and on February 16, 1935, filed a dissenting opinion. In the light of the second motion for rehearing filed herein, the writer desires to withdraw such dissenting opinion and to file this opinion in lieu thereof.
Article 4754, R. S., and article 5057a are very similar statutes; the former applying to the method in which the taxable value of the personal property of a life insurance company must be ascertained, and the latter providing the method in which the taxable value of the personal property of a fire insurance company must be ascertained. Neither of these statutes can properly be termed an exemption statute. Article 4754 reads: “Insurance companies incorporated under the laws of this State shall hereafter be required to render for State, county and municipal taxation all of their real estate as other real estate is rendered. All personal property of such insurance companies shall be valued as other property is valued for assessment in this State in the following manner: From the total valuation of its assets shall be deducted the reserve being the amount of the debts of insurance companies by reason of their outstanding policies in gross, and from the remainder shall be deducted the assessed value of all real estate owned by the company and the remainder shall be the assessed taxable value of its personal property. Home insurance companies shall not be required to pay any occupation or gross receipt tax.”
Article 5057a reads: “That Fire Insurance Companies and Casualty Companies incorporated under the laws of this State shall hereafter be required to render for State, County and Municipal taxation all of their real estate as other real estate is rendered. All personal property of such insurance companies .shall be valued as other property is valued for assessment in this State in the following manner; From the total valuation of their assets shall be deducted the reserve and from the remainder shall be deducted the assessed value of all real estate owned by such companies and the remainder shall be the taxable personal property of such companies, to be assessed as other property.”
In connection with article 4754 must be read subdivisions 3 and 4, aft. 4682, to understand the meaning of the term “reserve,” so as to identify what is denominated therein a debt. Subdivision 3 declares that the commissioner of insurance each year shall “calculate or cause to be calculated in his office by an officer or employee of his department, the net value on the thirty-first day of December of the previous year of all the policies in force on that day in each life or health insurance company doing business in the State, upon the basis and in the manner prescribed by law.” Subdivision 4 of said article declares that the commissioner of insurance, after he has determined the net value of all policies, shall “see that the company has in safe securities of the class and character required by the laws of this State the amount of said net value of all its policies, after all its debts and claims against it and at least one hundred thousand dollars of surplus to policy holders have been provided for.”
It is thus made clear that the gross sum of the net value of life insurance policies, in force on December 31st of the previous year, as calculated by the commissioner of insurance, constitutes the amount of the reserve of life insurance companies. It is equally clear that the amount of this reserve is the amount declared by article 4754 to be “the debts of insurance companies.”
In connection with article 5057a should be read subdivision 7, art. 4682, for an understanding of the meaning of the term “reserve,” used in such statute. This section declares that the commissioner of insurance “shall calculate the reinsurance reserve for unexpired fire risks by. taking fifty per cent, of the premiums received on all unexpired risks that'have less than one year to run, and a pro rata of all premiums received on risks that have more than one year to run.” The sum represented by the calculation of the commissioner of insurance is the “reserve” and represents the sum directed to be deducted from the assets of a fire insurance eompa-*1064ny, so as to determine the taxable assets of such company. The Legislature, by necessary implication, declared sucb reserve to be a debt, as was directly so pronounced as to life insurance reserves in article 4754.
It was held by the Supreme Court, in the case of the City of Waco v. Amicable Life Insurance Co. (Tex. Com. App.) 248 S. W. 332, that the Legislature was within its power in holding that the reserve of a life insurance company is not an asset, but a liability or debt, deduction of which from the gross value ,of .the company’s property, in determining taxable valuation of its personalty, is authorized.
The power of the Legislature to declare a fire insurance company reserve a debt has not been decided by any higher court in this state. The legislative theory of compelling life insurance companies and fire insurance companies to create the reserve provided for by law is precisely the same. The theory as to life insurance companies is for every such company to have on hand money, or its equivalent, sufficient to meet the contingency of the maturity of all life insurance policies; as to fire insurance companies, the theory is to have on hand money, or its equivalent, sufficient to meet in any one year the maturity of any policy by reason of a fire, also to pay back to the policyholder, who has seen fit to cancel his policy, the unearned portion of the premiums paid, and to pay to other companies for reinsurance such an amount which a sound business policy would direct should be rein-sured. It was the legislative judgment that 50 per cent, of the unearned premiums collected on fire policies would meet any debt of this character that might mature within a given year, and hence declared, for the purpose of taxation, the sum representing this 50 per cent., required to be set aside for such purpose, a debt and not an asset.
Section 1, art. 8, of the Constitution reads: “All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.”
Article 4754 merely directs the method as to how the taxable value of the personal property of a life insurance company may be ascertained, by directing its debts to be deducted from its assets to obtain such taxable value. Article 5057a prescribes the same method to ascertain the taxable value of the personal property of a fire insurance company. The method adopted by both statutes is authorized by the provision of the 'Constitution, quoted above.
The writer, therefore, believes that the constitutionality of article 5057a rests upon precisely the same basis as article 4754, and that as the latter article has been declared to be constitutional, it necessarily follows that the other article should be declared constitutional. See authorities cited on this question in the original opinion.