[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 444 The only question to be determined in this case is, whether the Mutual Insurance Company of Buffalo is, as a corporation, liable to taxation under the laws of this state. Is it a moneyed or stock corporation, deriving an income or profit from its capital or otherwise; and has it a capital on which a tax can, under the 4th title of the chapter in relation to taxes, be imposed? (1R.S. 414, tit. 4, § 1.) The term "moneyed corporation," as used in the 2d title of chapter 18, in relation to incorporations, is declared to mean every corporation having banking powers, or having the power to make loans upon pledges or deposits, or authorized by law to make insurances. (1 R.S. 598, § 51.) But it is said that this is not a general definition, and was not intended to apply to the corporations embraced by the fourth title of the chapter relative to the assessment of taxes. The 15th section of the act incorporating the Mutual Insurance Company of Buffalo, which declares that sections 19 to 25 inclusive of the title in relation to moneyed corporations, shall not *Page 445 be applicable to such insurance company, seems to imply that the other sections of that title are applicable to such company by reason of its being a moneyed corporation. I can not see the propriety of limiting the term "moneyed corporation" to corporations having banking powers. The capital of insurance companies consists of money paid in by the stockholders or members of the company. This capital is invested on bonds and mortgages or in stocks, and the income arising from the investment is divided among the stockholders or expended in the payment of expenses and losses. The premiums paid on insurance are paid in money, and are also expended in the payment of losses and expenses, or divided among the stockholders as profits. The capital stock of a bank is paid in in money and is invested in the discount of notes and bills of exchange, and the income arising from such investment is applied to the payment of expenses and distributed among the stockholders as profits. Both banks and insurance companies deal in money and in the business of lending money; and there can be no impropriety, therefore, in embracing within the definition of "moneyed corporation," insurance companies as well as banks, although the former do, in addition to the business of lending money, conduct the business of insurance.
Is the Mutual Insurance Company of Buffalo a stock corporation? The stock or capital stock of a corporation is the fund or capital consisting of money or goods employed in conducting the business of the company. The stock of an insurance company is the money paid in by the stockholders or members of the company, and which forms the basis of the operations of the company in making insurances, and is retained in its character of money to meet demands for losses, or is invested in securities to be resorted to, if necessary, to pay losses. If the money so paid in as the capital to be employed in conducting the business of the company, can not be withdrawn and divided among the stockholders or members of the company, it constitutes the capital stock or capital of the company. It is immaterial whether this money paid in as capital was paid in before or after the organization of the company. If paid in as capital to form the *Page 446 basis of the operations of the company, and not to be withdrawn, it is equally capital, whether paid in before or after the organization.
By the provisions of the act to incorporate the Mutual Insurance Company of Buffalo, every person who has taken a policy during the next preceding year, in his own name or in the name of his firm, and every person holding in his own name or in the name of his firm a certificate of the company not discharged by payment of losses, for a proportionate share of the premiums earned to the amount of $25, are members of the company; and the act provides that every person who shall become a member by effecting an insurance shall, the first time he effects an insurance, pay the premiums fixed by the trustees; and that no premiums so paid shall be withdrawn from the company during its continuance. The company is authorized to invest all premiums received in bonds and mortgages, or in stocks of the city of Buffalo, and on bottomry and respondentia bonds. Until the net profits of the company exceed $100,000, no part thereof can be applied towards the redemption of the certificates issued to the members of the company, and then only the excess above that sum can be applied for that purpose. And the trustees in their election, may refuse to apply any of the net profits except the excess above the sum of $200,000 towards the redemption of such certificates. Here, then, in this mutual insurance company, we have stockholders called members of the company. These stockholders have contributed to the capital or capital stock by paying to the company the premiums on their respective insurances. These premiums, at least that portion of them paid by the stockholders the first time they effected their insurances, can not be withdrawn. They, therefore, constitute a permanent capital liable to reduction only by the payment of losses; in other words they constitute the capital stock of the company. There can in no event be a payment to the stockholders or withdrawal of the net profits, until they exceed $100,000, and then only can the excess above that sum be withdrawn by the trustees to be applied by them in the redemption of certificates. This $100,000 must be retained as the capital *Page 447 of the company, and even $200,000 may, in the discretion of the trustees, be retained for that purpose. If, then, this company has not only stockholders but a capital or capital stock; if it derives an income or profit not only from the interest on the investments of its capital, but also from the premiums on its insurances, it must be a stock corporation deriving an income or profit from its capital or otherwise, and therefore must be liable to taxation on its capital under the title of the revised statutes in relation to the assessment of taxes. I am, therefore, of opinion that there is no error in the judgment of the supreme court, and that the same should in all respects be affirmed.
That portion of the net profits of the company which exceeds the sum retained as permanent capital or capital stock, can only, within the meaning of the title relating to the assessment of taxes, be regarded as surplus profits; and for these profits the company is not liable to taxation. It is liable to taxation only on its capital; not on its surplus profits. (Bank of Utica v.City of Utica, 4 Paige, 399; 4 Hill, 20.)