The opinion
SCHAUER, J.
I dissent. The taxing statute (Ins. Code, § 1530) is applicable to the exchange as an entity, not to the individual subscribers. It provides that the “exchange shall pay ... an annual tax upon all sums paid in the preceding calendar year by subscribers in this State by reason of the insurance exchanged, whether termed premium deposit, membership fee, or otherwise, after deducting therefrom premium deposit returns or cancellations, consideration for reinsurance and all amounts returned to subscribers and/or credited to their accounts as savings. . . .’’ (Italics added. ) The stipulation of facts upon which the case is presented recites that “plaintiff exchange did credit . . . apportioned amounts as savings to subscribers’ accounts on the books of plaintiff exchange; that the aggregate of such sums credited was $197,-702.04; that thereafter plaintiff paid by check to subscribers, 95 per cent of the sum credited to each subscriber and paid *779 to said attorney in fact five per cent thereof.” (Italics added.)
It is upon this five per cent of the savings that the controversy centers. Plaintiff claims that such five per cent is exempt as a part of the duly credited savings while defendants contend that it is not a part of the savings.
• It appears to me that the five per cent so paid to the-attorney. in fact was paid for the accounts of the respective subscribers. "It was, in effect, a payment to them. The obligation was their obligation, not that of the exchange. The payment was a disposal of the subscribers’ money; the exchange had completed its function and effected the savings. The savings had be.en duly , credited to the subscribers and under the unambiguous terms of the statute such savings, so credited, were deductible from the taxable base.
Accordingly it is my view that the trial court reached the proper conclusion. I am satisfied that the opinion of 'the District Court of Appeal, First Appellate District, Division Two, prepared by Mr. Presiding Justice Nourse (reported in 152 P.2d 37 ) in affirming the judgment, correctly disposes of the issues involved. Reference' is made to that opinion for its more complete statement of the essential facts and discussion of the applicable principles of law and logic.
Shenk, J., and Edmonds, J., concurred.
Respondent’s petition for a rehearing was denied August 27, 1945. Shenk, J., Edmonds, J., and Schauer, J., voted for a rehearing.