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BANKERS LIFE & CASUALTY COMPANY v. CRAVEY, Comptroller-General.
34990.
Declaratory judgment. Before Judge Whitman. Fulton Superior Court. September 24, 1953.
QUILLIAN, J.
The petition did not state a cause of action for a declaratory judgment, and the trial court did not err in sustaining the general demurrer and in dismissing the petition.
Bankers Life & Casualty Company filed its petition in Fulton Superior Court against Zack Cravey, in his official capacity as Comptroller-General of the State of Georgia, and alleged: "1. Petitioner is a life insurance company, incorporated and existing under the laws of the State of Illinois. 2. The defendant herein is Zack D. Cravey, the Comptroller-General and Insurance Commissioner of the State of Georgia, and this suit is brought against the defendant in his official capacity as such. 3. That official residence of the defendant is Fulton County, Georgia, and the defendant is subject to the jurisdiction of this court. 4. Petitioner was issued a license to do business in the State of Georgia by the defendant in June, 1947, and each year thereafter defendant renewed said license until July 1, 1951, at which time defendant refused to issue reneWal license to petitioner. 5. Section 92-2509.1 of the Georgia Code of 1933 provides that all insurance companies 'doing business in this State shall pay a tax of 2% upon gross direct premiums received by them upon persons, property, or risks in Georgia from January 1st to December 31st, both inclusive, of each year.' Section 92-7304 of the Georgia Code of 1933 provides, as a penalty for failure to pay said premium taxes 'the revocation of permits to do business in the State.' 6. On February 22, 1951, petitioner filed its annual report and paid to defendant, in his official capacity, the $300.00 license fee required by the Georgia statute for the year commencing January 1, 1951. In addition, on February 22, 1951, petitioner paid to defendant in his official capacity, $18,177.70 for premium taxes for the period of January 1, 1950, to December 31, 1950, pursuant to said Section 92-2509.1 and Section 92-3509.2 of the Georgia Code of 1933. 7. Notwithstanding the fact that it complied with all the laws of the State of Georgia for its aforesaid renewal license, the defendant failed and refused to perform the ministerial act of issuing a license to your petitioner, and your petitioner was forced to institute mandamus proceedings against the defendant in the Fulton Superior Court, in which case a mandamus absolute judgment was entered, the same being Case No. A-25441. Despite the said judgment of the court, defendant failed and refused to perform the ministerial act of executing and issuing petitioner's license for that year. 8. In 1951 the Legislature of the State of Georgia amended Section 56-403 of the Georgia Code of 1933 and changed the calendar year basis for the licensing of insurance companies in Georgia to that of a fiscal year commencing on July 1st and ending on June 30th of the following year. 9. By reason of the issuance of the mandamus absolute judgment as aforesaid your petitioner was led to believe that it was authorized to do business in the State of Georgia despite the failure of the defendant to perform the ministerial act of issuing evidence of a renewal license to petitioner for the year ending June 30, 1952. Acting on the assumption that petitioner was entitled to the renewal license your petitioner filed its annual report, and on February 28, 1952, applied for a renewal license for the year commencing on July 1, 1952, and paid to the defendant in his official capacity the sum of $300.00 as the license fee. 10. On February 28, 1952, petitioner paid to the defendant in his official capacity the sum of $11,697.60 for premium taxes based on the preceding twelve-month period ending on December 31, 1951, in order that no claim could be made that your petitioner had violated the provisions of Section 92-7304 of the Georgia Code of 1933. 11. The defendant, in his official capacity, accepted said $11,697.60 for premium taxes, but, nevertheless, refused to perform the ministerial act of issuing petitioner's renewal license for the year beginning July 1, 1952, and ending June 30, 1953. Petitioner commenced a proceeding seeking a writ of mandamus to compel defendant to perform the ministerial act of issuing its renewal license, which is not pending in the Fulton Superior Court as Case No. A-31483.
"12. Petitioner has now and has had at all times mentioned herein, on deposit with the Director of Insurance of the State of Illinois, United States Government bonds valued in excess of $300,000.00, which securities are deemed by said Insurance Director to be the equivalent to cash. Said securities are subject to the order of the Insurance Director of the State of Illinois as a guaranty fund for the protection of all policy obligations of petitioner and as a guaranty fund for the security of its policyholders. 13. The deposit referred to in the preceding paragraph was made pursuant to valid existing statutes of the State of Illinois which statutes are contained in Smith-Hurd Ill. Ann. Stat., Ill. Rev. Stat., 1951 Ed., Sections 638 and 757, and are as follows: 'Section 638-26. (Deposit of Minimum Capital). A deposit of cash or securities which are authorized investments under section 125, in an amount equal to the minimum capital required by section 13 but not in excess of two hundred thousand dollars, shall be made and maintained with the Director for the protection of all policy obligations of the company. Section 757-145. (Deposits). When any company is required by the laws of this State or of any state or country, or by other competent authority, to make a deposit with an insurance supervising official or other financial officer and the company desires to make such deposit in this State the Director shall accept such deposit, if made in securities authorized for investment by section 125 (1). So long as the company continues solvent and complies with the laws of this State it may collect the income on such securities. The company may substitute therefor other like securities as prescribed by this Code for deposit. If the value of securities deposited by any company shall decline below the amount so required, the company shall make a further deposit.' 14. The said deposit of United States Government bonds referred to in the two preceding paragraphs was made and is in compliance with Paragraph I of Article IV of the Constitution of the State of Georgia as set forth in Section 2-2901 of the Georgia Code of 1933. In addition to the United States Government bonds on deposit with the Director of Insurance of the State of Illinois, your petitioner has on deposit various sums of Government bonds with the property designated officers of the thirty-nine states in which it is licensed to do business, and petitioner has on deposit with the State of Georgia $30,000.00 in United States Government bonds, and the Treasurer of the State of Georgia issued his official receipt for said
bonds, and a photostatic copy of said receipt is attached hereto marked Exhibit 'A' and made a part hereof.
"15. In 1947 when your petitioner was first licensed to do business in the State of Georgia your petitioner furnished the Comptroller-General of the State of Georgia a proper certificate issued by the Director of Insurance of the State of Illinois evidencing the deposit of United States Government bonds with the said Director of Insurance of the State of Illinois, which deposit and which certificate complied with Paragraphs I and II of Article IV of the Constitution of the State of Georgia and as set forth in Sections 2-2901 and 2-2902 of the Georgia Code of 1933, and there is attached hereto marked Exhibit 'B' and made a part hereto a photostatic copy of the certificate of the Director of Insurance of the State of Illinois dated February 27, 1953. 16. Petitioner has complied with Paragraph V of Article IV of the Constitution of the State of Georgia as set forth in Section 2-2905 of the Georgia Code of 1933.
"17. If petitioner has not, in fact, been authorized to do business in the State of Georgia during the years 1951, 1952-1953, it is entitled to be reimbursed by the defendant for the $300.00 license fee for the year commencing January 1, 1951, and the premium taxes paid on February 22, 1951, in the amount of $18,177.70. In addition, petitioner will be entitled to receive from defendant the payments made to him on February 28, 1952, to wit: $300.00 license fee for the year ending June 30, 1953, and $11,697.60 for premium taxes. 18. If, by virtue of compliance with Paragraphs I, II, and V, of Article IV of the Constitution of the State of Georgia, petitioner has in fact been authorized to do business in the State of Georgia during the years 1951 and 1952-1953, the State of Georgia will be entitled to collect from petitioner the following amounts: (a) 1953 State Premium tax on Ordinary Life Insurance written by your petitioner in the sum of $205.88. (b) 1952 State Premium Tax on Commercial Accident and Health Insurance written by your petitioner in the sum of $13,738.70. (c) 1952 State Premium Tax on Group Accident and Health Insurance written by your petitioner in the sum of $53.59. 19. If, by virtue of compliance with Paragraphs I, II and V, of Article IV of the Constitution of the State of Georgia, petitioner has in fact been authorized to do business in the State of Georgia from July 1, 1952, to June 30, 1953, and from July 1, 1953, to June 30, 1954, the State of Georgia will be entitled to collect from petitioner a premium tax on its gross direct premiums received by it from January 1, 1953, to December 31, 1953, both inclusive, as well as a license fee of $300.00.
"20. In order to protect its rights and to prevent its being irreparably damaged and injured, your petitioner wishes to deposit and pay into the registry of the court the sum of $13,998.17 covering those items set forth in Paragraph 18 hereof, and which sum will be due the State of Georgia if your petitioner is declared to be authorized to do business in Georgia and thus entitled to a renewal license for the year ending June 30, 1953. 21. The refusal of the defendant to perform the ministerial act of executing and issuing a certificate evidencing petitioner's right to do business in Georgia is violative of his duties as prescribed by the Constitution of the State of Georgia. 22. An actual controversy exists between petitioner and the defendant as to whether or not petitioner is authorized to do business in the State of Georgia. Defendant claims that petitioner is not so authorized to do business, but, nevertheless, has accepted the aforedescribed premium taxes and license fees. Petitioner claims that its compliance with the conditions precedent prescribed by the Constitution of the State of Georgia authorizes it to do business in Georgia and that defendant's illegal refusal to perform the ministerial act of issuing its renewal license cannot and does not deprive it of that right. 23. If petitioner is not in fact authorized to do business in the State of Georgia, it is mandatory that defendant collect the premium taxes for the years 1952 and 1951 from petitioner's policy-holders in the State of Georgia pursuant to Section 56-529 of the Georgia Code of 1933.
"Wherefore, petitioner prays: (a) That process issue . . . (b) That your petitioner be allowed and directed to pay into the registry of the Fulton Superior Court the sum of $13,998.17 as premium taxes and $300.00 as license fee, to be held in the registry of this court pending the further order of this court. (c) That this court declare that petitioner is now and at all times mentioned in this petition has been authorized to do business in the State of Georgia; and that, accordingly, the sums paid into the registry of this court be paid to defendant. (d) That if this court declares that petitioner is not now and has not been for the past two years authorized to do business in the State of Georgia, no premium taxes are or were due and owing to the State of Georgia for the years 1951 and 1952. (e) That this court declare that the refusal of defendant to perform the ministerial act of executing and issuing a renewal license to petitioner cannot deny to petitioner the right to do business in Georgia, as provided by the Constitution of Georgia. (f) For such other and further relief as may be proper and equitable."
To this petition the defendant demurred on the grounds, among others, that: "2. The petition as amended should be dismissed because it fails to state a cause of action and fails to allege facts sufficient to entitle the plaintiff to the relief prayed for or to any relief. 3. The petition as amended should be dismissed because it does not appear therefrom that the plaintiff has in any wise complied or sought to comply with the laws of Georgia regulating the licensing of insurance companies," and "5. The petition as amended should be dismissed because it sets forth no ground or facts sufficient to entitle the plaintiff to the declaratory relief sought and it affirmatively appears that the plaintiff is not entitled to the declaratory judgment which it seeks."
The court sustained the demurrer and dismissed the petition. The plaintiff by direct bill of exceptions brought the case here assigning error on dismissal of the petition.
We first consider whether the plaintiff was entitled to a declaratory judgment as prayed in prayers (c) and (e) of its petition. These two prayers simply invoke the decree of the court, first, that it has, though unlicensed by any authority of the State of Georgia, the right to write insurance in the State, on account of its contention that the Comptroller-General wrongfully refused it a license to do business legally in the past and up to the time of the filing of the petition; and secondly, that for the same reasons it may continue in the future to write insurance in Georgia though unlicensed by any authority of this State. The first question is moot because the time referred to in the first prayer, namely the time before and up to and including the filing of the petition is past, and was immediately after the petition was filed. The courts do not concern themselves with the solution of academic problems or the determination of dead issues. "If an action for a declaration raises issues which are fictitious, colorable, hypothetical, abstract, academic, or dead, and hence moot, the Georgia statute is not applicable, and the action must be dismissed as decisively as would be any other action presenting the same non-justiciable issues." Felton v. Chandler, 75 Ga. App. 354 (7) (43 S. E. 2d 742).
The second question presented no question for consideration by the court for a variety of very simple reasons: (a) No one was disputing, or so far as the record discloses, threatening to question the legality of the plaintiff's conduct in writing insurance in the State without a license; and while the impropriety of doing so may have itself suggested apprehension that the authorities would sooner or later call the plaintiff to account, there was no controversy of a justiciable nature or otherwise existing at the time the petition was filed. There must be an actual controversy in order for the courts to entertain a petition for declaratory judgment. "The word 'actual' preceding the word 'controversy' in section 1 of the act, is a word of emphasis, and not of definition. The word 'controversy' within itself contemplates a justiciable controversy. 16 Am. Jur., 285, 10; Borchard on Declaratory Judgments (2d ed.), p. 40. The words '[legal] rights, [legal] status, and other legal relations,' of section 13 of the act are dependent upon an 'actual controversy' in a proceeding for declaratory judgment . . . A controversy is justiciable when there are 'interested parties' asserting 'adverse' claims (Borchard on Declaratory Judgments, 2d ed., p. 36; 16 Am. Jur., 284, 10) upon a state of facts which must have accrued, wherein a legal decision is sought or demanded. 'For the principle of a declaratory judgment is that it declares the existing law on an existing state of facts. The danger or dilemma of the plaintiff must be present, and not contingent on the happening of hypothetical future events.' " Brown v. Lawrence, 204 Ga. 788, 791 (51 S. E. 2d 651).
While the courts, upon proper application for guidance, look into the future and give to the parties such directions as in the interest of justice they are entitled to, it is not the function of the courts to look into the future for the facts and declare what legal status will exist, what relationships will be involved, or what acts will be within or without the law. It is difficult enough in many instances for them to decide these matters on facts shown to presently exist; but it is patently impossible for the judges to give directions by decree, predicated upon anticipated events that may or may not occur. Brown v. Lawrence, supra.
So, we observe, it would be impossible for a decree to be so moulded as to incompass future contingencies. Giving answers to legal questions based on future events is to answer hypothetical questions. This the court declines to do. "The statutes relative to declaratory judgments do not as a rule contemplate declarations upon remote contingencies or as to matters where the interest of the plaintiff is merely contingent upon the happening of some event in the future. Hence, the courts will not, ordinarily, attempt to decide or declare the rights of status of parties upon a state of facts which is contingent or uncertain or until the question as to which a declaration is sought has actually arisen. This rule is similar to the one observed where the guidance of all equity or probate court is sought under the practice which prevails independent of declaratory judgments statutes. In accordance with this vieW, it has been held that the Federal Declaratory Judgments Act cannot be invoked in order to obtain an advisory decree upon a hypothetical state of facts which may never become real." 16 Am. Jur. 293, Declaratory Judgments, 19.
What is written here does not mean that, if the happening of the future event is certain in the order of nature, such as the passing of the seasons, certainty of death at some time, or the assurance that a tax will be levied in some amount, the court may not assume and predicate its decrees on those events as though presently existing.
The remedy of declaratory judgment is open to no litigant who has as complete and adequate a remedy at law or in equity as is afforded by a declaratory judgment, and it is not available where no peculiar facts or circumstances render the remedy of declaratory judgment better adjusted to the situation than other remedies available to the plaintiff. The plaintiff has such remedy in this case by following the procedure prescribed by Code 56-419 and 56-422, providing for application to the Comptroller-General for a license and hearing before that official as to the plaintiff's right to have the license issued to it, and the remedy of mandamus is open to the. plaintiff to compel the Comptroller to issue it a license, provided it is legally entitled to be licensed. Findley v. City of Vidalia, 78 Ga. App. 581 (51 S. E. 2d 542); City of Summerville v. Sellers, 82 Ga. App. 361 (61 S. E. 2d 160).
Prayer (b) of the petition is that the plaintiff be directed as to whether it should pay certain money to the Comptroller. T lie petition does not show that any demand had been made for the money or claim laid to it by the Comptroller named in the suit, or that even a threat to collect it had been made by him. There was no semblance of a controversy in reference to the payment of that money, and the trial court correctly held there was none.
Prayer (d) of the petition seeks direction as to the payment of taxes already paid, the recovery of which, if the defendant has any right to recover then, is amply provided for by statute. Moreover, it does not appear from the petition that any demand has been made for these taxes or that there is any controversy concerning them.
The other prayers of the petition were merely for process and general relief.
The best reason for the trial court's correct decision not to entertain the petition applies to the petition as a whole and all of its prayers. It is well established that it is not necessary that a petition praying for a declaratory judgment set out a good cause of action so as to entitle one who brings it to the relief of either legal or equitable nature, in order to entitle the petitioner to direction by the court. "(a) In cases of actual controversy the respective superior courts of the State of Georgia shall have power upon petition, or other appropriate pleading, to declare rights, and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such. (b) In addition to the cases specified in paragraph (a) of this section, the respective superior courts of the State of Georgia shall have power upon petition, or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, in any civil case in which it appears to the court that the ends of justice require that such declaration should be made, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such." Code (Ann. Supp.) 110-1101 (a) and (b). Nevertheless, a party is not entitled to a declaratory judgment if he has no present right to protect or right to a directive decree to guide him with respect to some future act or conduct which is properly incidental to any of his alleged rights, and which future action without such direction might jeopardize his interest. In this case the plaintiff does not allege that it either has complied or intends to comply with the laws of this State regulating the issuance of licenses to insurance companies, and does not attack these laws as unconstitutional or otherwise invalid. It does claim that the constitutional provision contained in paragraphs I, II, and V, of art. IV, section VI (Code, Ann., 2-2901, 2-2902 and 2-2905) means that no requirements other than the deposit of the $100,000 with "the Comptroller-General of the State in which they are chartered, or of this State, the Insurance Commissioner, or such other officer as nay be authorized to receive it," can be prescribed by statute as a prerequisite to the issuance of a license to it. The plaintiff also contends that the quoted constitutional provision not only authorizes the Comptroller-General to issue it a license, but makes it mandatory upon him to do so. These contentions are palpably unsound, for there is nothing in the Constitution that limits the authority of the legislature to enact, as it has, laws providing for a proper application to the Comptroller for a license to write insurance, and for his examination and determination of whether such license will be granted on the basis of the insurance company's having complied with the laws of this State regulating the business of insurance.
Code (Ann.) 56-418 provides that "The Insurance Commissioner shall consider the application, and if, upon consideration of the facts set forth in the application, the financial statement of the company and such other evidence as he may require, he shall determine that the company has fully complied with the laws of Georgia regulating the business of insurance, and is satisfied that the financial statement of the company is correct, that it is maintaining proper reserves, is solvent, and has invested its reserves in sound assets, and if he is of the opinion that the company's financial condition and affairs arc sound and such that its transaction of business will not be hazardous to its policyholders, its creditors or the public, he shall issue a license to the company to transact business in this State." Section 56-422 provides for a fair hearing before the Insurance Commissioner as to whether a license will be granted a company, and 56-9905 provides for the punishment of those who write insurance in this State for an unlicensed company. The wording of the constitutional provision is so plainly to the effect that the Comptroller-General is authorized but not required to issue a license when only the condition as to the deposit of $100,000 therein required is complied with, that it requires 110 construction. In these circumstances, one who has every question for which he seeks solution plainly answered by our Constitution and statutes needs no guidance in the nature of a declaratory judgment.
The plaintiff in error maintains that it was entitled to have a declaratory judgment rendered by the superior court, directing it as to whether, in vieW of the fact that it had no license for a period of time during which it did actually write insurance and collect premiums, it owed premium taxes on the business done during that time. It contends that this issue relates to events transpiring in the past, upon which the decree of the courts could have been entered without speculation.
The theory might be advanced that this question is not moot, because the plaintiff in error desires direction in reference to its liability to pay taxes in the future if no license is granted it. The complete answer to this is that, where a statute is so plain and unambiguous as not to be susceptible to any logical construction except its unmistakable mandate, there is no need of a declaratory judgment. The requirement of the law contained in Code 92-2509.1 is so palpable and explicit that premium taxes are to be paid by a company doing business in this State, and so lacking in any intention that a company illegally transacting such business should be relieved of the taxes, that it would be vain and useless for the court to have undertaken to construe it.
In view of what is said above, the judge of the superior court did not err in sustaining the general demurrers and in dismissing the petition.
Judgment affirmed. Nichols, J., concurs, and Felton, C. J., concurs in the judgment.
Eugene Cook, Attorney-General, Lamar Sizemore, Assistant Attorney-General, B. D. Murphy, contra.
Alex McLennan, for plaintiff in error.
DECIDED MAY 11, 1954.
Saturday May 23 03:24 EDT


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