¶1The opinion of the court was delivered by
¶2The relator is a private corporation of this state, subject to be taxed at the full amount of its capital stock paid in and accumulated surplus.
¶3What constitutes its accumulated surplus gives rise to this controversy. The company insists that this term includes only moneys received for interest on investments and earned premiums on expired risks; while on behalf of the city receiver it is claimed to comprehend all premiums which have been received by the company.
¶4The policy of the tax law will be effectuated by bringing within its operation all property to which it can be fairly applied. The term surplus, as applied to an insurance company, is the fund it has in excess of its capital stock after payment of its debts.
¶5*483Such fund is the accumulation of interest received and premiums for insurance.
¶6It is liable to the contingency of loss upon the policies issued, but it is as much the property of the company, and as fully under its control, as the capital stock paid in. It is asserted that the company does not actually own these premiums, because they are subject to the risks taken until the policies expire by limitation, and that this constitutes a liability in the nature of an indebtedness against the company.
¶7This consideration cannot affect the character of the fund as an accumulated surplus.
¶8The liability is contingent; it may or may not actually attach, and if it does, it will reach to and affect the capital stock and such premiums as have been received on expired risks, as fully as those received on unexpired risks.
¶9If it is an essential element of accumulated surplus that it be free from liability to pay losses, an insurance company can never have such surplus, and the aggregate amount insured will always be far in excess of its capital and premiums received.
¶10There was no present loss at the time of the assessment complained of, to effect diminution of the fund, and non con-stat that there ever would be.
¶11The act under which the tax was imposed was designed to promote equal taxation, and to that end to reach so much of the property of these corporations as is not represented by their capital stock.
¶12The premiums in question have been invested on bond and mortgage, and to that extent exempt from taxation the borrowing debtors. There is no reason why these bonds which in other hands could claim no immunity from the public burthen, should, in the ownership of this prosecutor, go free.
¶13The capital stock of the company is §50,000, and the premium and interest account §68,449.20, amounting together to the sum of §118,449.20; of this, §63,000 is invested in *484non-taxable securities, leaving a balance of $55,449.20, to which sum the assessment must be reduced.
¶14Rule entered accordingly, and affirming the assessment as valid on the reduced amount above stated.
¶15[Note. — This case was decided at the November Term, 1870, but through accident the opinion was not received in time for insertion in its proper place.]
¶16Affirmed, 6 Vr. 575.