dissenting.
Section 38 of the revenue law, referred to in the opinion, required insurance companies to be taxed upon the premiums received by them in excess of the losses and ordinary expenses, and provided that this taxation should be in lieu of all other taxes, except taxes on real estate. This provision, if entirely valid, would relieve insurance companies from the reciprocal tax, so called, which this action was brought to enforce against this defendant, and would also relieve them from taxation upon their personal property. These companies could not be relieved from taxation upon their personal property, because of the requirement of the constitution that every person and corporation shall pay a tax in proportion to the value of his, her or its property. The tax upon premiums provided for by the statute is held valid and enforced, and the opinion discloses that the provision of this statute doing away with the reciprocal tax, on account of the new tax imposed upon premiums, would be valid, if it were not for the fact that the same clause of the statute also attempts to relieve the personal property of these companies from taxation. It does not seem to be in harmony with reason or authority to hold that a sentence or clause of a statute which attempts to accomplish several distinct purposes must be held to be unconstitutional, in toto, because some one of the several things sought to be accomplished is beyond the poAver of the legislature. Exempting insurance companies from taxation upon their personal property was not an inducement to this legislation or to any part of it. *348Taxation upon premiums was the inducement to the exemption from other taxation. If this new taxation was sufficient ground for all of the exemptions allowed in consequence thereof, there seems to be no reason for denying to the legislature the power to make such of the exemptions provided for as are not forbidden by the constitution. It has been held:
1. Courts: Construction or Federar Constitution. The state courts are bound by the decisions of the United States supreme court regarding the proper construction of a clause of the federal constitution and its application to the question involved in the liti-' gation. 2. Insurance*. Interstate Commerce. The business of insurance is not commerce, a'nd the making of a contract of insurance is a mere ifieident of commercial intercourse in which there is no difference whatever between insurance against fire, insurance against the perils of the sea, or insurance of life. New York Ins. Go. v. Cravens, 178 U. S. 389.*348“A law' which is unconstitutional within certain limitations, if in terms it exceeds or fails to notice those limitations, may yet be entirely operative within its legitimate sphere, and properly held to have the application which thus confines it.” Commonwealth v. Gagne, 153 Mass. 205, 10 L. R. A. 442. Poindexter v. Greenhow, 114 U. S. 270, 29 L. ed. 185; Board of Supervisors v. Stanley, 105 U. S. 305, 26 L. ed. 1044; Treasurer of Fayette County v. Peoples & Drovers Bank, 47 Ohio St. 503, 10 L. R. A. 196, and notes. Steed v. Harvey, 18 Utah, 367, seems to hold a contrary doctrine, but no satisfactory reason for such holding is given.
The conclusion reached in the opinion does not seem to me to be Avell supported by the reasons given. It may he that it can be supported upon other grounds. At all events the case has already been twice argued, and as the majority of the court are satisfied that no different result could be reached upon further consideration of the case, a further hearing does not seem advisable.
The following opinion on motion of state for judgment on the pleadings was filed February 8, 1906. Motion sustained:
*349Lbtton, J.Tliis cause ivas argued and submitted to the court while Chief Justice Holcomb presided. Before his term of office expired he prepared the following opinion, which meets with our approval, and which expresses our views with clearness and perspicuity:
“This cause is submitted on the petition of the plaintiff, the state, the second amended and substituted answer of the defendant, and a motion filed by the state for judgment on the pleading's. The court has heretofore considered and decided the principal legal questions arising in this controversy on a ruling on a demurrer interposed by the state to the answer of the defendant. State v. Insurance Co. of North America, ante p. 335.
“Nothing new or essentially different from' the questions already passed upon is presented by the defendant’s second amended and substituted answer except that it is now alleged that the defendant's business of insurance of property against loss by fire, as conducted and carried on between it and the citizens of the different states of the Union with whom it contracts for indemnity, is interstate commerce within the meaning of the clause of the constitution of the United States concerning the regulation of commerce between the different states of the Union and the citizens thereof; that the tax sought to be enforced by the state in this action constitutes a direct imposition upon the insurance business of the defendant, and that the section of the statute of this state authorizing the exaction sought to be enforced amounts to a regulation of commerce among the states and of the instrumentalities enjoyed therein; in violation of clause 3, section 8, article I of the constitution of the United States. The question thus presented pertains to the construction of the federal *350constitution and regarding which the ultimate and final decision rests with the United States supreme court.
“It is plausibly argued that the vast business of fire insurance, carried on, as it is, by the different companies and corporations of many of the state's with the citizens of all the state's of the Union, is so vital and inte'rwovem with our industrial and commercial fabric that it is essential to the welfare, success and permanence of our institutions, and is in its nature a commodity, in the; exchange of Avliich the business should be properly classed as interstate commerce, entitled to the protection and coming within the provision of the clause of the federal constitution to which reference has been made. Without taking the time to engage in a discussion of the question as an original proposition to be decided upon a course of reasoning and logic based upon underlying principles, and under the rules pertaining to the proper construction of provisions found in the fundamental law of the land, we must content ourselves by saying that the question can hardly be regarded as an open one, and that wo feel ourselves bound by the decisions of the highest judicial tribunal, whose special and peculiar function it is to construe a clause.of the constitution of the kind and character under consideration, and apply it to questions of litigation as they may arise. It is not for us to ignore, or seek to overturn the authoritative utterances of that august body, but rather to remand to it the question of Avhether its own opinions shall be approved and .followed, or overruled, because* upon further consideration they are believed to be, erroneous or unsound.
“In Now York Fire Ins. Co. v. Cravens, 178 U. S. 389, decided in 1900, by a unanimous court, it is held that “The business of insurance is not commerce, and the making of a contract of insurance is a mere incident of commercial intercourse in AArhich there is no difference AAdiat-ever between insurance against fire, insurance against the perils of the sea, or insurance of life.’ In the opinion, after discussing and affirming the power of the state to *351regulate in the manner attempted, as shown' herein, it is by the court said: ‘Further comment on this head may not be necessary, and we only continue the discussion in deference to the insistence of counsel upon the interstate character of the policy in suit. It is the basis of every division of their argument, and an immunity from control is based upon it for plaintiff in error, which, it seems to be conceded, the state can exert over corporations of its own creation. An interstate character is claimed for the policy, as we understand the argument, because plaintiff in error is a New York corporation and the insured was a citizen of Missouri, and because, further, the plaintiff in error did business in other states and countries.’ And further it is observed: ‘Is the statute an attempted regulation of commerce between the states? In other words, is mutual life insurance commerce between the states? That the business of fire insurance is not interstate commerce is decided in Paul v. Virginia, 8 Wall. (U. S.) 168; Liverpool Ins. Co. v. Massachusetts, 10 Wall. (U. S.) 566; Philadelphia Fire Ass’n v. New York, 119 U. S. 110. That the business of marine insurance is not, is decided in Hooper v. California, 155 U. S. 648. In the latter case it is said that the contention that it is, “involves an erroneous conception of what constitutes interstate commerce.” We omit the reasoning by Avliich that is demonstrated, and will only repeat, “the business of insurance is not commerce. The contract of insurance is not an instrumentality of commerce. The making of such a contract is a mere incident of commercial intercourse, and in this respect there is no difference whatever between insurance against fire and insurance against the ‘perils of the sea.’ ” And we add, or against the uncertainty of man’s mortality.’
“Hooper v. California, supra, fully supports the later case of New York Life Ins. Co. v. Cravens. In Paul v. Virginia it is said by Mr. Justice Field, speaking for the court: ‘Issuing a policy of insurance is not a transaction of commerce, The policies are simple contracts of *352indemnity against Joss by fire, entered into between the corporations and the assured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one state to another, and there put up for sale. They are like other personal contracts between parties which are completed by their signature and the transfer of the consideration. Such contracts are not interstate transactions, though the parties may be domiciled in different states. The policies do not take effect —are not executed contracts — until delivered by the agent in Virginia. They are, then, local transactions, and are governed by the local law. They do not constitute a part of the commerce between the states any more than a contract for the purchase and sale of goods in Virginia by a citizen of New York whilst in Virginia would constitute a portion of such commerce.’
“In Crutcher v. Kentucky, 141 U. S. 47, the question for decision was with reference to the validity of a state statute having for its object the regulation of agencies of foreign- express companies, and it is held that the statute was a regulation of interstate commerce, so far as -applied to corporations of another state engaged in that business, and was to that extent repugnant to the constitution of the United States. A consideration and comparison of the case last cited, with Hooper v. California, supra, will make clear and emphasize the holdings of the United States supreme court on the question of the conduct of the business of insurance not being of a character Avhich brings it within the scope of the commerce clause of the constitution. In both cast's, agents of the foreign corporations had been fined in the. state courts, for doing-business contrary to the provisions of the state statutes seeking to regulate the business of foreign corporations. Each of the statute's had been upheld in the state courts. *353In the Hooper ease the statute ai'feeted foreign insurance companies, while in the Crutcher case it was directed against foreign express companies. The principal question in each case argued on appeal to the federal supreme court was, whether the statute under which the conviction was had contravened the provision of the federal constitution Avith reference to the regulation of interstate commerce. In the Hooper case the decision of the state court Avas affirmed on the ground, distinctly stated, that the business of insurance, carried on by a foreign corporation in the state of California did not involve interstate commerce and the state statute was therefore valid; Avhile in the, Crutcher case the decision of the state court was mmrsed for the sole and only reason that express companies were engaged in interstate commerce, and the law seeking to regulate the business of such companies c^ame in conflict Avith the commerce clause of the federal constitution. In the Crutcher case, in pointing out the distinction between the making of contracts of insurance; and interstate commerce, or the necessary instrumentalities thereof, it is said: ‘The case is entirely different from that of foreign corporations seeking to do a business which. eloe;s not belong to the regulating poAver of congress. The insurance business, for example, can not be carried on in a state by a foreign corporation without complying with all the conditions imposed by the legislation of that state. So with regard to manufacturing corporations, and all other corporations whose business is of a local and domestic nature, Avhich Avould include express companies whose business is confined to points and places wholly Avithin the state. The cases to this effect are; numerous.’
“ With these clear and explicit expressions as to the; proper construction of the clause of the constitution appealed to by the defendant in the case at bar, as it applies to the business of insurance, our duty appears reasonably plain, and Ave must hold to the; vie;w that the answer, in rc;spect to the matter being discussed, *354states no defense to the canse of action pleaded by the plaintiff.”
With these views we are content, and for the reasons therein stated the plaintiff is entitled to judgment on its motion, and it is accordingly so ordered.
Judgment for plaintiff will be entered for the sum prayed for in its petition.
Judgment foe plaintiff.
Sedgwick, C. J., dissents.