State ex rel. Fidelity & Casualty Co. of New York vs. Fricke. that it has not been preserved or recognized in our Code. In some jurisdictions the practice has been preserved in its entirety. In others, it has been limited by express statutory enactment, or been held, under the peculiar language of the Code adopted, to exist as a cumulative remedy. Interesting discussions confirmatory of the position we have taken may be found in the following cases: Corry v. Campbell, 34 Ohio St. 204; Brooks v. Howard, 55 N. H. 69; Seguin v. Maverick, 24 Tex. 526; Jacks v. Adair, 33 Ark. 161; Nealis v. Dicks, 72 Ind. 374; Brower v. Cothran, 75 Ga. 9. We express no opinion upon the merits of the defendant's showing of facts as a basis of the relief sought. The questions of diligence, and of the persuasive nature of the circumstances alleged as grounds for relief, are for the determination of the trial judge when the matter is properly planted in court. By the Court. The motion is denied, with $10 costs. THE STATE EX REL. THE FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, vs. FRICKE, Commissioner of Insurance, Respondent. November 23, 1898-February 21, 1899. Accident insurance: License fees: Mandamus: Statutes: Practical construction. 1. The annual license fee of $300, required by sec. 1220, R. S. 1878, to be paid by foreign accident insurance companies desiring to do business in this state, is levied upon the business transacted, and not upon the companies transacting the business. Ch. 105, Laws of 1880, was simply an amendment, which added to the fee previously required a payment of two per cent. upon the gross income received upon accident insurance business during the preceding year. Trav elers' Ins. Co. v. Fricke, 94 Wis. 258, and 99 Wis. 367, followed. State ex rel. Fidelity & Casualty Co. of New York vs. Fricke. 2. From 1880 to 1897 a foreign accident insurance company was licensed to transact business in this state without paying the $300 license fee required by sec. 1220, R. S. 1878. As a condition for renewing its license for 1898, the insurance commissioner required it to pay $300 for each year it had so transacted business, with interest from the time it became due. Held, that since the company's right to transact business in this state is a matter of privilege, and the legislature has authorized the commissioner to revoke a license for past violations, or withhold a license until the company has complied with all legal requirements, a writ of mandamus to compel the issuance of the license without the payment of said arrearages was properly refused. 3. The fact that the statute of limitations may have run as to part of said arrearages would not prevent the commissioner from requiring payment of that part as a condition of the issuance of a new license; nor would the fact that no demand for arrearages was made until November, 1897, render the claim so stale that interest should not be allowed. [4. Whether a foreign corporation doing business in this state under legislative authority may, in a proper case, take advantage of the statute of limitations, not determined.] 5. The statute not being doubtful or ambiguous, the mere silence of the state officials, or their neglect to enforce the plain requirements of the law, is not sufficient to relieve the companies from their obligations, on the ground of practical construction. APPEAL from a judgment of the circuit court for Dane county: R. G. SIEBECKER, Circuit Judge. Affirmed. The relator, The Fidelity & Casualty Company of New York, filed its petition for an alternative writ of mandamus in the circuit court for Dane county, claiming that the defendant, as commissioner of insurance of this state, unlawfully refused to issue it a license to do business in this state for the year 1898. The alternative writ was issued, and due return made thereto. The issue joined was tried by the court, and his findings thereon may be summarized as follows: The relator is a corporation organized under the laws of the state of New York, and authorized to do the business of accident insurance. The company first applied to do State ex rel. Fidelity & Casualty Co. of New York vs. Fricke. business in this state in 1880, and each year since has applied for and received license to transact business in this state, up to March 1, 1898. Each year it has paid to the state treasurer two per cent. of its gross income earned in this state, and has complied with all the requirements imposed by the laws of this state, except that it has not paid the annual license fee of $300 required by sec. 1220, R. S. 1878. No demand was ever made upon said company for such fees prior to November, 1897, at which time the defendant made such demand and required as a condition for renewing its license, which would expire on March 1, 1898, that it pay an annual license fee of $300 for each year it had done business in this state, with interest at the legal rate on each such license fee from the date it became due. The company refused to pay such fees or any part thereof. The amount of such fees on March 18, 1898, with interest, was $9,076.70. The company applied for license for the year 1898, but the defendant refused to issue one, because it had failed to pay the license fees above mentioned. Under this state of facts the court concluded that the relator was an accident insurance company, within the meaning and purview of ch. 105, Laws of 1880, and sec. 1220, R. S. 1878, and not entitled to a license to transact business in this state until it had paid all back license fees before mentioned, with interest, and that upon such payment, and not otherwise, the peremptory writ might issue. The judgment entered upon such findings is sought to be reversed on this appeal. For the appellant there were briefs by Winkler, Flanders, Smith, Bottum & Vilas, counsel, and oral argument by F. C. Winkler. They argued, inter alia, that the payment of $300 being imposed upon foreign life and accident insurance companies as an annual license fee for transacting such business," the imposition by subsequent law upon such a company of any other pecuniary duty "as an annual license fee 66 State ex rel. Fidelity & Casualty Co. of New York vs. Fricke. for transacting its business" would ipso facto supersede the former provision. It could not be held to be "in addition," unless there were adequate words to that effect. Gurr v. Scudds, 11 Exch. 191; U. S. v. Isham, 17 Wall. 496, 502; Partington v. Attorney General, L. R. 4 Eng. & Ir. App. 100, 122; Powers v. Barney, 5 Blatchf. 202; Russell v. Wigglesworth, 2 Story, 369, 373; State v. Pullman's P. C. Co. 64 Wis. 89, 103. Although ch. 105, Laws of 1880, does not say in hæc verba that such companies shall pay two per cent. of their gross premiums "as a license fee," etc., yet in saying that they "shall be subject to the same fees and taxes as are now paid by fire insurance companies," it necessarily means that they shall pay them for the same purposes and with the same effect. That act evinces a purpose to establish equality between accident and fire insurance companies, applying to them the more just and equitable rule of prorating the license fee to the amount of business done. It was the obvious purpose of ch. 105 to allow accident companies to make insurance not only against bodily injuries or death, but also against accidents to property, against dishonesty in persons holding places of trust, and the like, and it would be unjust to require those different classes of companies to pay the same arbitrary sums. There is no plain language in any of these statutes which requires payment of both the $300 and the two per cent., and hence practical construction may be applied to them. John L. Erdall, first assistant attorney general, for the respondent. The following opinion was filed December 16, 1898: BARDEEN, J. The facts at issue in this litigation are very much the same as were involved in the cases of Travelers' Ins. Co. v. Fricke, 94 Wis. 258, and S. C. 99 Wis. 367. In those cases the company had paid the $300 license fee, and not the two per cent. on its gross earnings. In this case the State ex rel. Fidelity & Casualty Co. of New York vs. Fricke. relator had paid the two per cent. on its income, as required by ch. 105, Laws of 1880, but has not paid the $300 annual license fee imposed by sec. 1220, R. S. 1878. In his brief, counsel for relator, after reviewing the facts involved in the former litigation, said, "The question, therefore, whether an accident insurance company organized under the laws of another state was, after ch. 105, Laws of 1880, required to pay $300 per annum in addition to the 'fees and taxes' thereby imposed, although discussed, has not been adjudicated by this court." Pursuant to this statement, counsel has submitted a vigorous and carefully prepared argument in his brief, and pressed the same with great vehemence at the bar, as to the construction this court ought to give to the statutes mentioned. The earnestness of the counsel, and the importance of the questions involved, have induced us to carefully review the former litigation and the questions therein determined. We find it entirely unnecessary to attempt to justify those decisions. They represent the deliberate judgment of the court, after a careful and exhaustive argument and consideration of all of the questions involved. The suggestion of counsel that the construction of the statutes mentioned was not necessary for the determination of those cases is met by casual reading of the opinions filed. The question was certainly presented, carefully argued, and deliberately considered by the court. Speaking of ch. 105, Mr. Justice WINSLOW says: "Although this act was not in terms denominated an amendment to sec. 1220, R. S., its legal effect as such is too plain. for argument. It manifestly added to the license fee required of a foreign company doing an accident business in this state by sec. 1220 the fee required in case of a foreign fire insurance company, which, as we have seen, was two per cent. of its gross earnings upon business transacted within this state during the preceding year. We are unable to see any other construction which can be placed upon the act |