
    No. 11,438.
    State of Louisiana vs. J. Herbert Williams.
    In an open, policy of insurance, in which an aggregate amount is expressed, there-are as many contracts of insurance as there are endorsements on the policy of sepárate shipments of goods.
    If the. open policy contains all the conditions which govern the shipment of goods, specially insured under the policy, and the company reserves the right to reject or accept each special insurance in each shipment, the contract must be considered as made at the domicile of the company issuing the openpolicy.
    Under such a policy the insurance comp any, having no agent in Louisiana, it can not be considered as doing an insurance business in the State.
    There is a clear distinction between the business of an insurance agency, and the conducting of an insurance business.
    . A person who takes out policies in a foreign company having no agent here, and which does no business here, can not be made to pay a license which the company would pay if doing business.
    •It is within the power of the Legislature to define what acts of a person, in issuing and procuring the issuance of insurance policies, may constitute him an insurance agent. But after defining his occupation it is not within its power to make him pay a license for a foreign corporation whose business he undertakes.
    ■Tire-Legislature can not appoint by statute an agent for a foreign insurance company, for any purpose as its legally constituted agent, as it is in violation of Art. 238 of the Constitution.
    The riglit to prohibit foreign corporations from doing- business in the State, without complying with Art. 236 of the Constitution carries with it the right to enforce the prohibition by appropriate legislation.
    A PPEAU from the. Oivil District Oonrt, Parish of Orleans. ^ Rightor, J.
    
    
      ■ E.-H. MoCaleb, Jr., Attorney for Tax Collector, Plaintiff and Appellant :
    An “open policy” of marine insurance, entered into between defendants and certain foreign insurance companies in New York (not located in this State, as required by Act No. 76 of 1886) contains the following provision:
    
      “ No risk is to be insured by this policy until a letter is signed by A. B. and addressed to the president of the company, detailing the name of vessel, particulars of shipment, with description of the-property and amount to be insured, is deposited in the postoffi.ee at New Orleans, which must be done while the property is in-good safety, and, in all cases, prior to the departure of the risk, from New Orleans, a duplicate of such letter to be sent by the following mail.”
    There is no risk covered by said open policy until such letter or application is deposited in the postoific'e at New Orleans.
    Upon the mailing of said letter or application, insurance is effected at the port of New Orleans upon the particular shipment detailed in the letter, and such risk is located in this State. These acts constitute “ a carrying on” of an insurance business within Louisiana from which premiums are derived. Art. 1797 et seq., O. C.; Am. and Eng. Ency. of Law, Yol. 3, p. 857.
    A State may exclude foreign corporations, and -the power of exclusion or prohibition is coextensive with the power of regulation by taxation. And it is very common to subject foreign insurance to special police regulations. Liverpool Insurance Company vs. Mass., 1 Wall. 506; Bank of Augusta vs. Earle, 13 Pet! 519; Doyle vs. Insurance Company, 94 U. S. 535; Pierce vs. People, 106 111. 11; Tiedeman on Police Power, p. 592, and. authorities there cited.
    These contracts are performed, consummated and executed in Louisiana, and the business conducted here by a foreign corporation (which has not complied with the State laws), through the assistance, instrumentality and agency of a person' residing in Louisiana.
    Under a revenue law it is competent for the Legislature to define or determine the status and liability to license taxation 'of any person or firm who assists and conducts the business in Louisiana of a foreign insurance company '(not located here as required by the Constitution and law) . And there is no paramount authority upon definitions in legal matters, save that power which can-make both the law and the definition. Pierce vs. People, 106-111. 11; Moses vs. State, 65 Miss. 60; 3 So. Rep. 140.
    It is well settled that revenue laws are to be liberally construed “And they are remedial in character as intended to prevent fraud, suppress public wrong and to promote public good. They should be so construed as to carry oui the intention of the Legislature in passing them, and more effectually accomplish fhese objects.” United States vs. Hodson, 10 Wall. 395; Taylor vs. United States, 3 How. 210; Cliquot’s Champagne, 3 Wall. 145; Wood vs. United States, 16 Pet. 197; United States vs. Breed, 1 Sumn. 159; Cornwall vs. Todd, 38 Conn. 443; Davy vs. Morgan, 56 Barb. 218.
    This proceeding is due process of law. Hagar vs. Reclamation District, 111 U. S. 701; Kelly vs. Pittsburg, 104 U. S. 87; McMillan vs. Anderson, 95 U. S. 37; Davidson vs. New Orleans, 96 U. S. 97; Cincinnati vs. Kentucky, 115 U. S. 321.
    It is not an attempt to. regulate commerce between the States. Crutcher vs. Kentucky, 141 U. S. 59; Paul vs. Virginia, 8 Wall. 168; Fire Association vs. New York, 119 U. S. 110; Doyle vs. Insurance Company, 94 U. S. 535; also citing Mining Company vs. Pennsylvania, 125 U. S. 181.
    
      Branch K. Miller Attorney for Defendant and Appellee:
    Where a buyer ships cotton from New Orleans to a foreign port, and obtains thereon an open policy of insurance from an underwriter located in another State, the obtaining of such policy being necessary to the carrying on of said business, the latter is an instrument by which foreign commerce is carried on, and the State has no power to tax the business of the underwriter conducted in this manner. 96 U. S. 1, 9; 105 U. S. 489; 121 U. S. 450; 122 U. S. 346: 127 U. S. 640.
    Where an insurance company issues an open policy in New York, where the premiums are paid, and where a loss, if any, is payable, such contract is made and performed out of the State of Louisiana and beyond the reach of its taxing power. The fact that the assured in New Orleans is required to mail therefrom a letter of advice reporting each shipment to be covered by the policy does not have the effect of bringing the contract within the jurisdiction of this State. 31 An. 781; 33 An. 10; 43 An. 113; 27 N. E. Rep. 849.
    Section 7 of Act 150 of 1890, so far as it undertakes to make the assured the agent of his underwriter domiciled in another State, and to make the former personally liable for any license tax claimed to be due by the latter, no such requirement being1 made as to underwriters domiciled in this State, or elsewhere,, when represented by agents in this State, deprives the assured of his property without due process of law, and denies him the-equal protection of the laws and is unconstitutional, null and void, both under the Federal and State Constitutions. 6 Neb. 54; 15 Mass. 447.
    
      Thomas J. Semmes for same:
    No one denies the power of the State to exclude foreign corporations-from doing business within its limits, if such corporations are not employed by the Federal Government, or are not engaged-in interstate or foreign commerce. No one denies the power of the State to exact from foreign corporations compliance with such conditions as it pleases, for allowing them to do business in the State. The State may punish by penal enactments those who act in any manner as the agents of an unlicensed foreign corporation. 8 So. Rep. 140; 13 Grattan, 767; 118 Pa. 322; 166 111. 11.
    The power to punish is one thing, the power to tax is another.
    A tax is a rate or sum of money assessed on the person or property of a citizen by government for its use. Cooley, Cons. Lim. 587; Topeka case, 20 Wall. 664. The power to tax is the power to impose on the person taxed a personal obligation. 42 An. 1135; 44 An. 279.
    There is no power in the Legislature to make liable for the license-tax, any other person than the person who pursues the occupation. Const., Art. 206. The Legislature may pass penal laws and subject to prosecution and punishment, those who aid others in violating the law, but it can not make one person responsible for the taxes of another person. This the act of 1890'proposes to do.
    This is, indeed, inflicting punishment by legislative act, and in that sense, such an act will amount to a bill of pains and penalties, which is nothing more nor less than a bill of attainder. Ex parte Milligan, 4 Wall. 323; also citing 51 Pa. St. 16, Tyson vs. School Directors; Town vs. Flatbush, 60 N. Y. 406. Opinion Justice 1 Field in Santa Clara Co vs. Pacific R. R., 18 Fed. Rep. 392.
    This Act of 1890 fastens on the citizen a character which he never' assumed, and imposes on him a liability for a tax levied on his supposed principal.
    
      What makes the matter worse, the acts for which the tax is levied, are illegal, and the illegality can not be removed by legislation, because it is the Constitution which exacts of every foreign corporation,.,as a condition on which it is allowed to do business in the State, that it shall have a place of business here as well as an authorized agent, upon whom process may be served.
    The Legislature can not absolve a foreign corporation from these conditions, or substitute any other kind of agent in lieu of the agent prescribed by the Constitution.
    The Constitution of Georgia granted, certain exemptions to “.the head of a family.”
    The Legislature of that State passed a law declaring that a single person, who at the time of the adoption of the Constitution, or before, lived habitually as a housekeeper to himself, was “ the head of a family,” and as such entitled to the constitutional exemptions.
    The Supreme Court of Georgia held the law to be invalid, because the words “ head of a family,” as used in the Constitution, did not mean a single man who lived by himself, although he kept an establishment with servants, etc. Calhoun vs. McLendon, 42 Gá. 406.
    The Constitution defines a license tax to be a tax on persons pursuing the several trades, professions, vocations or callings, and it is only persons who pursue such vocations or callings, who can be rendered liable to such a tax. This is almost the language of the Constitution, Art. 206.
    The Legislature can not then impose a license tax on an agent, who transacts the business of his principal. The man to whom the business belongs is the man from whom the license tax is to be collected, whether the business is done by himself personally or by others for him. In an “agency business,” the person who conducts it does so for himself and in his own interest. 31 An. 784; 83 An. 18; 40 An. 176; 43 An. 133.
   The opinion of the court was delivered'vby

McEneky, J.

The defendant, is a cotton buyer engaged in .purchasing cotton and shipping it from the port of New Orleans.

The cotton so purchased, is insured in an open policy in the Atlantic Mutual Insurance Company, a foreign corporation having no agent, in the State of Louisiana, appointed as the law requires.

The State Tax Collector proceeded, by rule, against the defendant to compel him to pay, personally, the license which it is alleged is due by said insurance company under the provisions of Sec. 1 of Act 150 of 1890.

This section graduates licenses on each and every insurance company, association, corporation, or other organization or firm or individual doing and conducting an insurance business of any kind * * * whether such company * * * or other organization, firm or individual is located or domiciled here, or operating here through a branch department, resident board, local office, firm, company, or corporation or agency of any kind whatsoever, shall pay a separate and distinct license on said business for each company represented * * * ■on all risks located within the State, and upon risks located in other States or foreign countries upon which no license has been paid. In the proviso to the section, there is a prohibition to any foreign corporation doing business in this State, except through an agent duly Authorized and accredited for the purposes of said business, and for all purposes connected with licenses and taxation and service of process.

The agent is to be appointed by authentic act, a copy of which is to be deposited with the Secretary of State. The proviso further ■states that any person or firm who shall fill up or sign a policy or certificate of insurance, on open marine or fire insurance policy for a ■corporation, association or persons not located or represented in this State shall be considered the agent of such corporation, firm, association or persons, and shall be liable for all taxes, licenses and penalties enforced by the provisions of this act upon such persons, corporation or association, as if represented by a legally appointed agent.

The open policy issued by the Atlantic Mutual Insurance Company is one in which an aggregate amount is expressed in the body of the policy, and the specific amounts and subjects are to be endorsed from time to time in the policy.

There is no dispute as to the fact, that this open policy was consented to in New York, and the policy issued directly from the domicile of the company. It was issued to the defendant, J. Herbert Williams, on account of himself, and to cover cotton in bales purchased and shipped by him, on which drafts are drawn for the purchase, upon whom it may concern.

The amount of the open policy is two hundred thousand dollars,, covering shipments of cotton from 23d September, 1893, to September 23, 1894, “ to ports in Great Britain direct or via New York for transhipment, and to ports on the Continent between Hamburg and Trieste inclusive, direct or via New York for transhipment; including the risk of fire at New Orleans, while in preparation for, or in process of shipment or awaiting shipment, but no fire risk prior to shipment to be covered, unless the vessel is in port loading or ready to load, or until the cotton is discharged from the railroad cars and at the risk of J. Herbert Williams, premium to be paid by the-assured at the rates of this company.

No risk is to be insured by this policy until a letter signed by J. Herbert Williams and addressed to the president of this company, detailing name of vessel, particulars of shipment, with description of the property and amounts to be insured, is deposited in the postofficeat New Orleans, which must be done, while the property is in good safety, in all cases prior to the departure of the risk from New Orleans; a duplicate letter to be sent by the following mail.

A new and separate policy to be issued for each risk, the premium-on which is to be paid in cash upon the delivery of such policy in New York to J. Herbert Williams. Risks endorsed hereon and subsequently taken off and new and separate policies issued, not to exhaust this policy.

. “ The said goods and merchandise hereby insured are valued, including premiums, at the sums expressed in the letter of advice as provided for herein, but not to exceed the invoice cost and ten per cent.” The policy .requires the notice, or application as it is called' in the testimqny, -to be mailed prior to the shipment, and on its receipt the company has a right to accept or reject the application for insurance on the particular shipment. We presume the.notice is required to inform the company whether or no the conditions pre; scribed by the policy, previously issued in New York, have been complied with. The policy required the premium on the insurance-of any particular shipment of cotton, to be paid on the presentation of the invoice or bill of lading and notice of shipment. The defendant, in pursuance of the terms of the policy, makes an application through his broker in New York, to insure prior to the shipment of' the cotton. His broker pays the insurance.

In the ease of Douville vs. Insurance Company, 12 An. 259, this Court interpreted an open policy similar in all essentials to the one under consideration.

In that case the plaintiff had failed to furnish the defendant company with an invoice of goods, purchased in Paris, which were lost under an open policy.

This Court said, <f On a policy of insurance in this form, there must necessarily exist as many contracts of insurance as there are, endorsements upon the policy of separate shipments of goods. The ■delivery of the policy four years previously did not constitute a contract of insurance upon goods which might be shipped by the Arctic. -Something more was required, viz.: Consent on the part of the plaintiff, a production of her invoices and the payment of the premium on her behalf, and a communication of the unusual manner in which these goods were intended to be brought over, viz., in the •trunks of a partner and an employé of the house, as baggage; and, on behalf of the company, an agreement to take the risk in this form.” The principle announced here will govern this ease. The •company, by the terms of the policy, had the right to have notice of the mode of shipment, and it could accept the policy or reject it if the shipment was by unusual methods, and incurred extra and hazardous risks. The open policy in this case is even stronger in favor of the separate contracts of insurance being completed in the State of New York, by the acceptance of the company, or it would be more accurate to say that each shipment of cotton and the insurance thereon, is part and parcel of the original contract of insurance, as it must be referred to the open policy for construction and interpretation. In that policy is found all the conditions for each separate shipment and insurance of cotton covered by the open policy. In the separate contracts or shipments there is no agreement or condition that is not found in the open policy.

While the open policy is a separate insurance on each shipment of cotton, and the risk is to commence, as stated in the policy, from its loading on shipboard, or awaiting shipment, this is only one incident of the contract, material and important, but does not control the fact as to the place of making the contract. This is to be determined by the final assent to it, when it becomes complete and perfect.

To illustrate: Suppose a resident of New York City takes out a policy of insurance on property owned by him in New Orleans, and the agreement is that the risk is to commence instantly on the issuing of the policy. The entire contract having been made in New York, the assent having been given there and the contract completed,, the risk is only an agreement or stipulation in the contract. So that the stipulation in the open policy, that the risk is to commence from-a certain time in New Orleans, does not make the contract a Louisiana contract.

The original policy and the special insurances effected under it, are New York contracts, as the policies were issued from the domicile of the foreign corporation and assented to there. Claflin vs. Meyer, 41 An. 1048. We have decided that a foreign insurance company, which issues policies directly from its .domicile, who has no agent here, and who only agrees to accept risks placed for them by a person residing here, can not be compelled to pay a license. New Orleans vs. Rhenish Lloyds, 31 An. 781.

The Atlantic Mutual Insuranoe Company, not having done any business in this State, the defendant can not, even under the pro - visions of Act 150 of 1890, Sec. 7, be considered as its agent.

That part of Sec. 7 of Act 150 of 1890, quoted above, constitutes, the person making these special contracts of insurance, under an-open policy, the agent of the company, as though he had been duly appointed by law. If snoh is the effect of the act, and the agent thus appointed becomes the agent of the company, upon what principle can he be made personally liable for the debt of the principal ?

“A clear distinction exists in law as well as in fact, and must be observed by courts, between the business of an insurance agent and that of a person or firm or corporation, conducting or doing an insur- • anee business.” State vs. Woods, 40 An. 175; 31 An. 781; 33 An. 11.

If the defendant is liable at all, it is because of his agency for an insurance company domiciled out of .the State.

We think it is within the power of the General Assembly to declare what acts of a party in issuing, or procuring the issuing of insurance policies may constitute him an insurance agent, and subject him to the license required of such agents. But after defining his occupation it is not within its power to make him personally liable-for the license of a foreign corporation whose business he undertakes. The business of an insurance agent is a separate and individual industry or occupation and only taxable as such. 31 An. 781.

In the case of State vs. Woods, 40 An. 177, this Oourt said: “ The attempt of the State, by means of this proceeding, is to make them personally liable for the license which is contemplated for the companies or corporations which they represent, and to subject their own property to the privilege, created in favor of the State, against the property of the parties who may owe the license provided by the-statute.

“Such a proposition - finds no sanction in reason or justice, and much less in the very law under which the proceeding has been instituted.” '

In that case the proceedings were instituted against certain insur-' anee agents to make them liable for licenses for' conducting an insurance business. The licenses exacted were for the amount of business done by the corporations in this State which they represented.

The suit was instituted under the provisions of Act 101, Sec. 7, of 1886, which are identical with those of Act 150 of 1890, Sec. 7, except the proviso in the latter act. The present proceedings in effect-are the same, as in that suit, to make the agent responsible as one who conducts an insurance business. . No law can make a person answerable for a debt which he does not owe. The defendant does not do an insurance business, and he can not be made to pay a license for that occupation. The Constitution, Art. 236, requires the-foreign corporation, which desires to do a business in this State, to appoint its own agent, therefore the Legislature can not appoint one for it.

It is safe to say that the Legislature can not appoint an agent for an insurance company to represent said company, for any particular purpose, as its legally appointed agent in violation of Art. 236 of the Constitution. We do not mean to be understood that the Legislature can not designate persons who transact the business of a corporation domiciled out of the State, and having no agent here-as proper persons upon whom process may be served. Nor do we wish to be understood to announce, that the State is powerless to prevent the evil attempted to be suppressed by Sec. 7 of Act 150 of 1890.

The right to prohibit foreign corporations from doing business in the State, unless they comply with its regulations, can not be denied, and this right carries with it the power to enforce the prohibition by appropriate legislation. Moses vs. State, 3 So. Rep. 140.

The State can, therefore, prohibit its own citizens from conducting the business of taking out an open policy covering special contracts of insurance in a foreign insurance company, which has not complied with constitutional and statutory regulations, as it has the exclusive right, by virtue of its sovereignty, to regulate the conditions, capacity and state of all persons within it; the validity of contracts and other acts done within its limits; the resulting rights and duties growing out of those contracts and acts, and the remedies and modes ■of enforcing justice, and subjection to its will. Story Oonf. Laws, paragraph 18.

Judgment affirmed.  