Regarding the relief of school corporations which are unable to maintain their schools for the minimum term fixed by law.

256 The above case is exactly similar to the present except that. the Tennessee statute levied the tax as "gross premium receipts." According to the Indiana law the tax is computed on the "gross amount of all receipts received in the state of Indiana." This makes the decision even stronger in favor of excluding from the latter act such companies as have withdrawn in good faith, and which receive premiums not in, but from residents of the state. In accord with the above conclusion, compare: Vaughn Co. v. Lighthouse, 64 App. Div. (N. Y.) 138, 141-2, 71 N. Y. Supp. 799; Frawley v. Penn. Co., 124 Fed. 259; Beale on Foreign Corps., §§201, 207. There is a dictum contained in Mutual Life Ins. Co. v. Sprat- ley, 172 U. S. 602, 611, and statements in Smyth v. Assurance Co., 35 How. Pr. 126, and Price v. St. Louis Co., 3 Mo. App. 262, 268-9, indicating a different view; but I consider that expressed by the case in 106 Tennessee as preferable. It need scarcely be said that if a company has entered the state, solicited business, written policies and has then withdrawn, as a mere trick to evade the tax laws, while it continues to reap the benefit of its Indiana business, the above statute applies in all its force; for no such evasion would be tolerated. I have assumed throughout the foregoing opinion that the withdrawing company has left no agent within the state, and that all premiums are forwarded to it from Indiana policy holders by mail or express, and are not paid to any representative of the company in this state. SCHOOL FUND-FOR RELIEF OF CORPORATIONS UNABLE TO MAINTAIN SCHOOLS FOR MINIMUM TERM FIXED BY LAW. July 19, 1907. Hon. John C. Billheimer. Auditor of State: Dear. Sir-In your letter of July 17th you state there is a bal- ance of $53,885.02 in the state treasury to the credit of the spe- cial fund provided by the act of 1905 (Acts 1905, p. 34) for. the relief of school corporations which are unable to maintain their schools for the minimum term fixed by law: that this balance rep- resents the unused portion of the levy of 1905, after paying out re- lief during the school year of 1906-1907. You also state that un- der the levy of 1906 there has been paid into the state treasury $58,368.87 for the benefit of this special fund, being the first half of the total amount payable in 1907. You ask whether, at the end of the present fiscal year, the balance first above mentioned will become merged into the common school tuition fund of the state, or whether this balance, together with the instalment col- lecled in 1907, will so revert at that time. The act of 1907, page 450, contains this amendment to the law of 1905: 'Whatever unused surplus shall remain of the fund pro- vided in section 3 (the special fund here involved) of the act hereby amendd at the close of any fiscal year shall be and remain a part of the common school tuition fund of the state." My opinion is that the legislature intended all of the special levy made in a given year, to be available during the whole of the ensuing'school year; that is, the levy of 1905, payable in 1906, was available throughout the school year of 1906-1907; that of 1906, payable in 1907, is available during the school year of 1907- 1908. This is apparent from the original appropriation, made in 1905, of $75,000 for this special fund. Section 8 of the act of 1905 states that this sum is set apart "for use in the school year beginning in September, 1905." Pre- sumably, this $75,000 would be exhausted by September, 1906; at which time a part of the proceeds of the first levy (that of 1905, payable in 1906) would be available. Again: Upon the same day (March 11, 1907) that the act above cited was approved another statute was approved, increas- ing the total levy from 11.6 to 13.6, and adding a poll tax of 50 cents. The act of 1905 forbade school corporations utilizing the special fund, unless they had levied a local tax of 40 cents on $100 of taxable property. The act of-1907 decreased this to 25 cents on the $100, except where a seven months' term of school is maintained. From these changes it appears the legislature anticipated and encouraged larger demands upon the special fund than had formerly been made. Accordingly, a construction which would reduce this fund by one-half during that part of the school year subsequent to October 1st, ought not to be adopted. I am, therefore, of the opinion that the sum of $53,855.02 only is to be carried to the common school tuition fund on September 30th. [17-19395]