ALLIED MUTUAL INSURANCE COMPANY, a Corporation; CENTRAL MUTUAL CASUALTY COMPANY, a Corporation; CO-OPERATIVE CASUALTY COMPANY, a Corporation; EQUITY MUTUAL INSURANCE COMPANY, a Corporation; GLOBE MUTUAL INSURANCE COMPANY, a Corporation, and MISSOURI CASUALTY COMPANY, a Corporation, v. WILSON BELL, Treasurer of the State of Missouri, and EDWARD L. SCHEUFLER, Superintendent of the Insurance Department of the State of Missouri, Appellants.
No. 39029
Division One
February 5, 1945
185 S. W. (2d) 4
This is a sufficient statement of the facts. We will not go into the branch of the case covering the accounting of rents and profits, for appellants’ basic contention is that they could not be required to account because the tract was theirs under their father‘s warranty deed of November 23, 1937. On that controlling issue we think the chancellor‘s decree for respondent is amply supported by the evidence.
Appellants start with a handicap, for it is hard to understand why the father would deed the tract to them outright for $2000 when it was worth over twice that. Their theory is that a $4400 valuation was too high in 1937, and that the other heirs began to assert claims to the land after it increased in value as the economic depression receded. But that is not a strong argument for two reasons: first, it is not in accord with the facts; and second, it cuts both ways. There is ample evidence that the appellants were willing to reconvey in 1937 and changed their minds afterwards; and that the father‘s deed had some connection with obtaining a loan on the land. While we have the power to make our own findings of fact, since this is an equity case, we are content with the conclusions reached by the chancellor.
Some of the questions asked the appellant Walter Miller and Tom Miller were objected to on the ground that they came within the ban of Sec. 1887, R. S. Mo., and Mo., R. S. A., disqualifying parties to a contract or cause of action when the other party is dead or insane. But both did testify in part, and as to matter excluded no offer of proof was made that could affect the result in this case in any way.
On authority of such cases as Williamson v. Frazee, 294 Mo. 320, 242 S. W. 958, the decree below is affirmed. All concur.
Preston Estep and Arthur R. Thompson, Jr., for appellant Edward L. Scheufler, State Superintendent of Insurance; Roy McKittrick,
VAN OSDOL, C.—Action for a declaratory judgment by which the plaintiffs-respondents, Mutual Insurance Companies (other than life and fire) organized under the laws of Missouri, sought to have
House Bill No. 281 was introduced in the House of Representatives of the 60th General Assembly February 10, 1939, being in title and body,
“AN ACT
“To amend Section 5857, Article 7, Chapter 37, Revised Statutes of Missouri, 1929, relating to Mutual Insurance Companies Other than Life and Fire, by striking out after the word ‘state’ in line nine of said section the words ‘deducting amounts paid for reinsurance upon which a tax has been or is to be paid to this state, and.’
“Be it enacted by the General Assembly of the State of Missouri, as follows:
“Section 1. That Section 5857, Article 7, Chapter 37, Revised Statutes of Missouri, 1929, relating to Mutual Insurance Companies other than Life and Fire, be and the same is hereby amended by striking out after the word ‘state’ in line nine of said section the words ‘deducting amounts paid for reinsurance upon which a tax has been or is to be paid to this state, and,’ so that said section as amended shall read as follows:
“Section 5857. The taxable premiums or premium receipts of any mutual insurance company organized in or admitted to this state under this article for the purpose of taxation under any law of this state shall be gross premiums received for direct insurance upon property or risks in this state, deducting premiums upon policies not taken, premiums returned on cancelled policies, and any refund or return made to policy-holders other than for losses.”
The bill was referred to the Committee on Revision, and on April 20, 1939, Committee Substitute for House Bill No. 281 was reported and recommended for passage by that Committee. The substitute bill was passed by the House of Representatives May 1, 1939, and by the Senate June 23, 1939 (Journal of the House, 60th General Assembly, Vol. II, p. 1116; and Journal of the Senate, 60th General Assembly, Vol. II, p. 2122), in the form of title and body as the Committee had recommended,
“AN ACT
“To repeal an Act of the Fifty-fifth General Assembly appearing in the Session Laws of 1929, at pages 234 and 235, and as Section 5857 of the Revised Statutes of Missouri for 1929, relating to the taxation of premium receipts of mutual insurance companies organized in or admitted to this State, and to enact a new Section in lieu thereof and relating to the same subject, and providing that this Bill contains, and is a revision bill within the meaning of
Section 41, Article IV, of the Constitution of Missouri .“Be it enacted by the General Assembly of the State of Missouri, as follows:
“Section 1. That an Act of the Fifty-fifth General Assembly of Missouri appearing in the Session Laws of 1929 at pages 234 and 235 and being Section 5857 of the Revised Statutes of Missouri for the year 1929, relating to the taxation of premium receipts of mutual insurance companies organized in or admitted to this state, be and the same is hereby repealed and a new Section relating to the same subject is hereby enacted in lieu thereof, to be known as Section 5857, and to read as follows:
“Section 5857. Every mutual insurance company or association organized or admitted to Missouri under the provisions of this Article, shall annually pay to the State Treasurer a tax upon the direct premiums received, whether in cash or in notes, in this State, for the insurance of property or risks in this State at the rate of two per cent per annum; provided, that such companies or associations shall be credited with cancelled or return premiums actually paid during the year in this state.
“Section 2. By reason of the necessity of revising the laws of this State relative to the taxation of premium receipts of mutual insurance companies organized in this State, and this bill being a revision bill, the General Assembly hereby determines this Bill to be a Revision Bill within the meaning of
Section 41, Article IV of the Constitution of Missouri .” See now Laws of Missouri, 1939, pp. 456-7; andSection 5968, R. S. 1939, Mo. R. S. A., sec. 5968 .
No member of either house objected nor was there a written protest noted upon the journal of either house (that any substitution, omission or insertion had occurred or that any particular clause of Article IV, Constitution of Missouri, had been violated in the bill‘s passage) when the considered and passed Committee Substitute for House Bill No. 281 was presented to the presiding officers of the House of Representatives and the Senate for signature. Journal of the House, 60th General Assembly, Vol. II, p. 1808; and Journal of the Senate, 60th General Assembly, Vol. II, pp. 2232-3.
The question of the constitutionality of
But we must make every reasonable intendment to sustain the constitutionality of a statute.
We shall look further into the law existing prior to the enactment of
Except under the provisions of
Provision had been made for the taxation of insurance companies, including mutual insurance companies other than life and fire, organized under the laws of other states by
It is further noticed that the Governor, when he returned (to the Secretary of State, the 60th General Assembly having finally adjourned) the considered and passed Committee Substitute for House Bill No. 281 with his approval, stated in his message under date of July 7, 1939,
“The existing statute repealed by Committee Substitute for House Bill No. 281 permits a deduction of premiums paid for reinsurance provided that the tax on premiums paid for reinsurance is paid to the state by the company reinsuring.
“This language providing for reinsurance in the existing statute, it is thought, might produce in its operation, a conflict with a recent decision of the Federal Supreme Court, which held that if the reinsurance contract was made and the premiums paid outside the state levying the tax, then in such event, the Fourteenth Amendment to our Federal Constitution denies to the taxing state the power to regulate the property and activities of foreign corporations beyond the boundaries of the taxing state.
“Committee Substitute for House Bill No. 281 repeals the existing statute and enacts a new statute, omitting the provisions relative to reinsurance.” Messages from the Governor, Supplement, Journal of the House, 60th General Assembly, Vol. II, pp. 1856-7.
Observe that the Governor did not recognize in his message that Committee Substitute for House Bill No. 281 had the effect of levying a tax upon the premiums of mutual insurance companies. With reference to a possible “conflict with a recent decision of the Federal Supreme Court,” mentioned in the Governor‘s message, supra, see the case of Connecticut General Life Ins. Co. v. Johnson, 303 U. S. 77, 58 S. Ct. 436 (1938).
Now it should not be said that this court would have reached a different result in deciding the question of the constitutionality of the bill involved in that case if, in considering Section 25, supra, in connection with Section 37, supra, the court had viewed the failure of the members of the legislature to make an objection or note a protest to be persuasive (not conclusive) of the nonviolation of Section 25. The language of the court which we have quoted supra must be limited in its application to those provisions of
Surely the framers of the Constitution of Missouri did not contemplate that this court could not declare a statute unconstitutional as violative of
The makers of the Constitution of 1875, wherein Sections 25 and 37, Article IV, first appeared, stated, “To afford security against hasty legislation and guard against the possibility of bills becoming laws, which have not been fairly and considerately passed upon, wholesome
The failure to make an objection or to note a written protest to the change in the purpose of House Bill No. 281 in the case at bar is held persuasive only in indicating the legislators believed the bill as considered and passed did not make a change in existing law, except that change which the bill would have effected as originally introduced.
Defendants also cite the case of State ex rel. Aull v. Field, supra. That case is not helpful to us. In that case the Senate amended the title to a bill which had been considered and passed by the House of Representatives. “No amendment was made save in the title. . . . There is no parliamentary law nor any provision of the constitution requiring that an act shall retain the same title through all its stages in both houses. The title, though performing a most important function, is still not strictly a part of the act proper.” 119 Mo. at pages 608-9. Pertaining to the history of the development of the import of the title of a legislative act, examine Vol. I, Cooley‘s Constitutional Limitations, 8th Ed., pp. 291-2.
In view of the law existing at the time of the enactment of
It is unnecessary to review the assignment of error in the trial court‘s declaration of the unconstitutionality of Section 5968, supra, as violative of
It is so ordered. Bradley and Dalton, CC., concur.
PER CURIAM:—The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All the judges concur.