Nuessle, J.
This action was brought to recover certain tax charges claimed to be due from the defendant to the state of North Dakota on money received as considerations (also hereinafter designated as premiums) for annuity contracts in 1926 and subsequent years. The defendant, answering plaintiff’s complaint, denied that the premiums in question were taxable under the statute, § 4924, Supplement to the 1913 Compiled Laws of North Dakota, on which the plaintiffs rely, and further as to the claimed tax charges on premiums received during the years prior to 1930, pleaded the statute of limitations.
The case was tried to the court without a jury. The court held that the premiums in question were taxable, but also held with respect to the tax on premiums paid prior to 1930, that the statute of limitations had run and that the plaintiffs were not entitled to recover the same. Judgment was ordered and entered accordingly. Whereupon the plaintiffs appealed from the portion of the judgment which was entered in favor of the defendant and the defendant in turn appealed from that portion of the judgment entered in favor of the plaintiffs.
There is no dispute as to the facts which were stipulated by the parties. It appears from this stipulation that the defendant is a foreign corporation, organized as a life insurance company; that in each of the years beginning with 1926 and thereafter up to and including the year 1935, it applied for and received a certificate of authority to carry on and transact business in the state of North Dakota and during
such times engaged in the conduct and transaction of business therein; that in the usual course of its business within the state, it issued insurance policies and received premiums therefor; that during said years in the usual course of its business within the state, it also entered into certain contracts commonly known and described as annuity contracts, and in payment therefor received from the persons to whom such contracts were issued, certain stipulated sums as considerations or premiums; that such annuity contracts were in a variety of forms and that the same were not contracts of life insurance. Forms of these annuity contracts were offered in evidence and the considerations therefor are referred to therein as premiums.
During the several years above mentioned, the defendant, in compliance with § 4915, Comp. Laws 1913, filed its annual statements (see § 4916, Comp. Laws 1913) with the Commissioner of Insurance of the state of North Dakota, and made its annual reports as required by § 4931, Comp. Laws 1913. In addition thereto, the several commissioners of insurance annually required of it and it made its “State ment of Taxable Premiums,” showing in some detail the gross amount of premiums received during the several years on insurance written in North Dakota, and the deductions which it claimed should be made therefrom in computing the amount on which it was liable to taxation pursuant to § 4924, 1925 Supplement to the 1913 Comp. Laws. The forms for these statements were provided by the commissioners of insurance and made no reference to premiums or considerations received for annuity contracts until the year 1936, when the then Commissioner of Insurance amended the form to read:
“Gross premiums received during 19....,
including
$........,
for annuities
............................, $.........”
(The amended portion is italicized.) The commissioner then raised the point that premiums received for annuity contracts were subject to taxation the same as premiums for life insurance contracts, and demanded of the defendant the payment of such taxes upon the annual considerations which had been received by it for annuity contracts in the state of North Dakota in each.of the years from 1926 to 1935, inclusive. This was the first instance in which such taxes were claimed or demanded. When payment thereof was refused by the defendant the instant action was brought.
Section 4924, Supplement to the 1913 Comp. Laws, the section on which the plaintiffs predicate their claim to the taxes in question, reads as follows:
“Every insurance company doing business in this state, except stock and mutual companies organized under the laws of. this state, shall at the time of making annual statement of business done as required by law, pay to the commissioner of insurance two and one-half per cent of the gross amount of premiums received in this state during the preceding year. Upon payment of such sum the commissioner of insurance shall issue the annual certificates provided by law.”
So it will be seen at once that the first .and principal question for •determination in this suit-is as to whether the word “premiums” as contained therein includes the considerations paid by the purchasers for annuity contracts. If this question be determined adversely to the plaintiffs then we need go no further. If, however, it be determined in accordance with their contentions then it will be necessary to pass upon the further question as to whether the taxes claimed on account of premiums for annuities paid prior to 1930, are barred by the statute of limitations.
On argument and in their briefs, counsel on both sides spent much time on the question of what was meant by the word “premium.” Of course judicial notice must be taken of the meaning of words and phrases in the English language, and of such matters of common knowledge and science as may be known to all men of ordinary understanding and intelligence. See § 7938, Comp. Laws 1913. And § 7325, Comp. Laws 1913, provides: “Words and phrases are construed according to the context and the approved usage of the language; but technical, words and phrases and such others as have acquired a peculiar and appropriate meaning in law, or are defined by statute, are to be construed according to such peculiar and appropriate meaning or definition.” Again the statute provides that “Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly .appears. . . .” Comp. Laws 1913, § 7278. Now the dictionaries and legal encyclopedias give the word “premium” a diversity of meanings. In this connection it is interesting to note that in the' forms of the annuity contracts issued by the defendant which are., in the record,- the considerations for such con
tracts are therein described as “premiums.” And the courts in construing statutes identical with or similar to that here involved have differed in their conclusions. In some cases the word “premium” is given the meaning for which the plaintiffs here argue. See Northwestern Mut. L. Ins. Co. v. Murphy, — Iowa, —, 271 N. W. 899, 109 A.L.R. 1054. Others have held in line with the contentions of the defendant. See People ex rel. Metropolitan L. Ins. Co. v. Knapp, 193 App. Div. 413, 184 N. Y. S. 345, affirmed in 231 N. Y. 630, 132 N. E. 916; Com. v. Metropolitan L. Ins. Co. 254 Pa. 510, 516, 98 A. 1072; Daniel v. Life Ins. Co. (1937; Tex. Civ. App.) 102 S. W. (2d) 256. In view of this confusion in definition it seems to us that the construction of § 4924, supra, must be determined largely by a consideration of this and cognate statutes in the light of their histories. And some weight also must be given to the departmental construction put upon § 4924 by the several commissioners of insurance through the years the statute was in effect prior to the year 1936 when the point now in issue was first raised.
Section 4924, supra, was enacted substantially in its present form as § 40 of chapter 69, Laws of Dakota Territory 1885. It remained in effect until the enactment of the North Dakota Kevised Codes of 1895. The revisors of the Code adopted chapter 69 of the Laws of Dakota 1885 substantially as the same was originally enacted. But apparently through inadvertence § 40 thereof was omitted. The next (1897) legislature, however, the omission having been discovered, re-enacted this section as chapter 94, Session Laws 1897, which provides: “Every insurance company doing business in this state, except joint stock*and mutual companies, organized under the laws of this state, shall at the time of making the annual statement of business done in 1897, as required by law, pay to the Commissioner of Insurance five per cent of the gross amount of premiums received . . . during the year 1897, and two and one-half per cent on the gross amount of premiums received each year thereafter. . . .”
Section 4915, Comp. Laws 1913, provides that: “Every insurance company doing business in this state must transmit to the commissioner of insurance a statement of its condition and business for the year ending on the preceding thirty-first day of December. . . .”
And § 4916, Comp. Laws 1913, prescribes with particularity the
contents of such annual statement. These sections also were included in chapter 69, Laws of Dakota Territory 1885, as §§ 16 and 17 thereof.
Section 4836, Comp. Laws 1913, provides that: “Any number of persons, not less than seven, may form a corporation to carry on the business of insurance, either upon the stock or mutual plan, against loss or damage by fire, lightning, cyclone, tornado or hail, or the risks of inland navigation and transportation, or to make insurance upon the lives of persons and every insurance pertaining thereto, and against accidental injuries including the granting, purchasing and paying of annuities and indemnities and to transact fidelity insurance and corporate suretyship . . . .”
This section was enacted as § 3087, Revised Codes of 1895. It combined the provisions of § 1 of chapter 69, Laws Dakota Territory 1885, which authorized the incorporation of companies “To make insurance . . . against loss or damage by fire, lightning, cyclone, tornado, or hail, and the risks of inland navigation and transportation” and of § 1, chapter 73, Session Laws 1891, providing for the incorporation of companies “to make insurance upon the lives of persons and every insurance pertaining thereto, and against accidental injuries, including the granting, purchasing and paying of annuities and indemnities.” And to these added “and to transact fidelity insurance and corporate suretyship.” Prior to the enactment of chapter 73, Session Laws 1891, there had been no law expressly authorizing the incorporation of life insurance companies, nor had there been any legislative recognition of or reference to the business of writing annuity contracts.
Section 4916, Comp. Laws 1913, to which reference has been made, provides that the annual statement required to be filed by insurance companies shall show: (1) the name and location of the company; (2) the amount of capital stock paid in cash; (3) the property or assets of the company, particularizing as to eight classes thereof; (4) the liabilities, specifying the amount of “losses unpaid,” the amount of claims for “losses resisted,” the amount of “unearned premiums on outstanding risks,” the amount of money borrowed and remaining unpaid, the amount of all other existing claims; (5) the income of the company during the preceding year, specifying the amount of interest received, the whole amount of cash premiums received, stating sepa
rately those received on policies written in the state, and the whole amount of income received from all sources; (6) the expenditures during the preceding year, specifying seven items, among which are: the whole amount of “losses” paid during the preceding year, also, separately, the amount of “losses” paid upon “risks” taken in this state, and, finally, the whole amount of all other expenditures; (7) the gross amount of “risks” taken during the year, stating the amount in this state separately, the whole amount of “risks” outstanding, and the whole amount of “losses” incurred during the year, stating separately those incurred in this state. It is to be noted that there is no reference in this statement to annuities or premiums received for annuities. Nor can it be said that there 'is anything in this section which in any way indicates that annuities or the premiums or considerations for annuities were within the contemplation of the legislature when this section was enacted or re-enacted. Rather the only conclusion that can be drawn from it is to the contrary. It would be strange indeed if this were not so. For, in the first place, the statute is a statute of general application. The statement is required of all insurance' companies. In the second place, the section was first enacted long prior to any legislative recognition that annuity contracts were or could be made by insurance companies. In this connection § 4931, Comp. Laws 1913 must also be given consideration. While the statement prescribed by § 4916 is required to’be made by all insurance companies, § 4931, enacted as chapter 141, Sess. Laws 1907, and applicable to life insurance companies’ only, provides that: “In addition to any other matter which may be required by law or pursuant to law by the commissioner of insurance to be stated therein, every annual report of every life insurance company doing business in this state shall contain an accurate, concise and complete statement of the following matters, to-wit: . . .” The section then particularizes as to the matters to be set out in the report, listing them under sixteen heads, showing the company’s assets, its obligations, expenses, business done, money paid, profits and losses, dividends declared, and generally all information pertaining to the business and financial condition of the company. The only mention made of premiums is in paragraph eléven of these specifications wdii’ch requires “A complete statement of the profits and losses upon the business transacted during the year and the sources of such gains and losses,:
and a statement showing separately the margins upon premiums for the first year of insurance and the actual expenses chargeable to the procurement of new business incurred since the last annual statement. . . .” No mention of annuities or annuity contracts is made anywhere in this section.
There is a clear distinction between an insurance policy or contract and an annuity policy or contract. This is implied by the stipulation for it is expressly stated therein that the annuity contracts on account of which this controversy arose are not contracts of life insurance. And the cases which have considered the subject have uniformly recognized the distinction. See Curtis v. New York L. Ins. Co. 217 Mass. 47, 104 N. E. 553, Ann. Cas. 1915C, 945; Re Thornton, 186 Minn. 351, 243 N. W. 389; People ex rel. Metropolitan L. Ins. Co. v. Knapp, 193 App. Div. 413, 184 N. Y. S. 345, affirmed in 231 N. Y. 630, 132 N. E. 916, supra; Hall v. Metropolitan L. Ins. Co. 146 Or. 32, 28 P. (2d) 875; Com. v. Metropolitan L. Ins. Co. 254 Pa. 510, 98 A. 1072, supra; Rishel v. Pacific Mut. L. Ins. Co. (C. C. A. 10th) 78 F. (2d) 881; Carroll v. Equitable Life Assur. Soc. (D. C.) 9 F. Supp. 223; 3 C. J. S. pp. 1374, et seq.
Section 6458, Comp. Laws 1913, defines insurance as a contract whereby one undertakes to indemnify another against loss or damage arising from an unknown or contingent event. And § 6460, Comp. Laws 1913, says that the most usual kinds of insurance are (1) Marine insurance, (2) Eire insurance, (3) Life insurance, (4) Health insurance, (5) Accident insurance. These sections were in effect at the time of the adoption of chapter 69, Laws of Dakota 1885, to which we have heretofore referred. When chapter 73, Session Laws 1891, supra, was enacted, the legislature evidenced a recognition of the fact that the writing of annuity contracts was not within the scope of the insurance business by specifically providing that insurance companies might write such contracts. Were it otherwise there was no necessity, for this provision. Further legislative recognition of this fact was later evidenced by the -enactment of chapter 142, Sess. Laws 1897 (Comp. Laws 1913, § 5205) which provides for the organization and management of annuity, safe deposit, surety and trust companies. Nowhere in the statute is there a definition of an annuity or an annuity contract. And though § 4836, supra, authorizes the incorporation
of insurance companies with power to grant and pay annuities, there is no statutory direction or regulation as to the character or form of such contracts. On the other hand, the terms and provisions of insurance contracts are meticulously prescribed by §§ 6634, et seq.
Section 4915, Oomp. Laws 1913, requires that the statement contemplated by § 4916, supra, shall be filed with the Commissioner of Insurance. Section 4924, supra, provides that at the time of making the statement pursuant to § 4916, every insurance company doing-business within' this state shall pay to the commissioner the tax imposed by § 4924, and that the commissioner shall not issue his certificate of authority to transact business until such tax is paid. Section 4924, clearly refers to the statement defined by § 4916. The latter section applies to all insurance companies, whether organized for the purpose of writing life insurance or for the writing of the several other kinds of insurance.
Taking all of the foregoing matters into consideration it is obvious that when the legislature provided in- § 4924 that the tax should be reckoned upon the gross amount of premiums received, it had in mind such premiums only as were thus required to be specified in the-statement prescribed in § 4916. It is likewise clear that “premium” or “considerations” for annuity contracts were not among those required to be specified.
The record in the instant case does not disclose when the defendant first began to do business within the state of North Dakota, nor when it first began to enter into annuity contracts. It does appear, however, that it wrote such contracts in the year 1926 and continuously thereafter. Neither does it appear in the record whether or not such contracts were entered into by any other company, state or foreign, prior to 1926, nor whether annuity contracts were ever made by other than insurance companies. But, as we have shown, the legislature did in 1891 authorize the incorporation of insurance companies with the power to engage in the business of granting, purchasing, and paying of annuities. And in 1897 (chapter 142, Sess. Laws 1891, now § 5205, Comp. Laws 1913, supra), the legislature authorized the incorporation of annuity companies. There is, however, no statute requiring that annuity companies shall pay a tax on premiums received similar to that imposed on insurance companies under the provisions of § 4924. And though
annuities were written by the defendant as early as 1926, and continuously thereafter, it was never required to pay a tax on premiums taken for annuity contracts. And clearly no claim of right to tax such premiums was ever made. The special form provided by the several commissioners of insurance for their own convenience in computing the amount of this tax in no case made reference to premiums upon annuity contracts until the amended form was submitted by the then commissioner in 1936. And in that year, when the question arose as to whether such annuity premiums were taxable, the attorney general of the state of North Dakota in a written opinion ruled that they were not. Thus it appears that at all times prior to 1936 the departmental construction was that premiums taken for annuity contracts were not within the contemplation of the legislature when it used the words “gross premiums” in § 4924. In the meantime, different legislative assemblies had enacted legislation dealing with questions of insurance’ and of taxation, but no amendment was made of this statute. This is pertinent in determining the legislative intent. The “legislature is presumed to know the construction of its statutes by the executive departments of the state.” John Hancock Mutual L. Ins. Co. v. Lookingbill, 218 Iowa, 373, 253 N. W. 604. And if that construction is erroneous it can correct the error. We think that under the circumstances as disclosed in the instant case the construction placed upon section 4924, supra, by the insurance department is entitled to great weight in resolving the question of construction now before us and would be determinative were .we in doubt in this matter. While it is true that the rulings of executive officers who have practically construed a law are not conclusive, nevertheless “the ruling of an executive officer upon a point where it is his sworn duty to act, especially where the rulings have been acquiesced in by those whose financial interests were involved, are always given considerable weight in the courts, and when the power is doubtful the uniform rulings in an executive office would be followed, and allowed to turn the scale. Cooley, Const. Linr. 3d ed. marg. pp. 69, 70.” State ex rel. Edgerly v. Currie, 3 N. D. 310, 55 N. W. 858. See also Barrett v. Stutsman County, 4 N. D. 175, 59 N. W. 964; State ex rel. Kinzer v. Hall, 50 N. D. 708, 197 N. W. 770; State ex rel. Gammons v. Sorlie, 56 N. D. 650, 219 N. W. 105; Ford Motor Co. v. State, 59 N. D. 792, 231 N. W. 883.
As we have heretofore stated, statutes almost identical with § 4924 have been considered and construed in other states where the same contentions have been made that are made in the instant case. The plaintiffs cite and particularly rely upon the case of Northwestern Mut. L. Ins. Co. v. Murphy, — Iowa, -—, 271 N. W. 899, 109 A.L.R. 1054, supra. At first blush it appears that this authority tends strongly to sustain their position. But an examination of the opinion in that case discloses that the Iowa statute involved required that “Every insurance company . . . shall, at the time of making the annual statements as required by law, pay into the state treasury as taxes two and one-half per cent of the gross amount of premiums received by it for business done in this state, including all insurance upon property •situated in this state and upon the lives of persons resident in this state ■during the preceding year.” The Iowa court, construing this statute, held that premiums received for annuity contracts should be included ■in reckoning the amount of the tax to be paid. The court, in so holding, said: “That these words 'business done in this state’ were inclusive of the granting and selling of annuities was made definitely certain by legislative enactment prior to the year 1934. That is, the legislature had identified the granting and selling of annuities as a part of the business permitted and anticipated to be done in this state by insurance companies in the enjoyment of their business licenses. Beference is to chapter 147 of the Acts of the Forty-fifth General Assembly, which added to chapter 398 of the 1931 Code; § 8673-a, which provides that 'any life insurance company organized on the stock or mutual plan may grant and sell annuities.’ This act was applicable to insurance companies of the class to which plaintiff belongs.” So the holding is bottomed on the proposition that there was legislative recognition that the granting and selling of annuities was a part of the business of insurance companies, and that the tax was imposed upon all premiums received for business done in the state. It is to be noted that the words of the Iowa taxing statute are “gross amount of premiums received by it for business done in this state, including all insurance upon property situated in this state and upon the lives of persons resident in this state during the preceding year.” On the other hand, the defendant particularly cites and relies upon People ex rel. Metropolitan L. Ins. Co. v. Knapp, 193 App. Div. 413, 184 N. Y. S. 345, affirmed in
231 N. Y. 630, 132 N. E. 916, and Com. v. Metropolitan L. Ins. Co. 254 Pa. 510, 98 A. 1072, supra. These cases arose under statutes practically identical with § 4924, and their holdings are, without equivocation, exactly in line with the contentions of the defendant in the instant case to the effect that premiums taken for annuity contracts were not within the legislative intent when § 4924, supra, was enacted. See, also, Daniel v. Life Ins. Co. (1937; Tex. Civ. App.) 102 S. W. (2d) 256, supra.
The judgment of the district court is reversed and the ease is remanded with directions that judgment be entered for the defendant.
Hutchinson and It. G. McFarland, Dist. JL, concur.
Christianson, Oh.- J., and Morris and Burr, JJ., disqualified, did not participate. Honorable Wm. H. Hutchinson, Judge of the Third Judicial District, Honorable It. G. McFarland, Judge of the Fourth Judicial District, and Honorable A. J. Gronna, Judge of the Fifth Judicial District, sitting in their stead.