City of Lamar v. Adams

90 Mo. App. 35 | Kan. Ct. App. | 1901

SMITH, P. J.

This cause was transferred here from the Supreme Court. The plaintiff, a city of the fourth class, in February, 1897, passed “an ordinance concerning the licensing, taxing and regulating occupations, trades and business,” by the second section of which it was provided: “No person, company, association or corporation shall within the city of Lamar conduct, exercise, carry on, deal in, or engage in any occupation, profession, trade, business or avocation hereinafter mentioned, named or described, nor deal in, sell or keep any of the articles, things or places hereinafter named, mentioned or described, -without first taking out a city license therefor, as in this' ordinance provided. There is hereby levied a license tax, to be charged and collected as hereinafter provided, on the respective occupations, professions, trades, businesses and avocations hereinafter named, mentioned or described, and on all persons, companies, associations and corporations who shall deal in or sell any of the articles or things hereinafter mentioned, named or described, and on all persons, companies, associations and corporations hereinafter described, named or mentioned, in the respective sums and amounts, and for the term hereinafter stated to-wit: * * * * Eire insurance agents, $5 per annum; fire insurance companies, $15 per annum.” * * * *

And by the twenty-first section of said ordinance it was further provided: “Any person or persons who shall, within the city of Lamar, act as agent or solicitor for any company, firm, corporation, individual or association of individuals before such company, firm, corporation, individual or association of individuals shall have been authorized and licensed by the city, as herein provided, to transact business within the city, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine in any sum not exceeding one hundred dollars.”

The London & Lancashire Insurance Company of Liverpool, England, a corporation organized for the purpose of doing a fire insurance business, was at the time hereinafter mentioned duly authorized under article 4, chap. 89, Revised Statutes 1889, and the acts amendatory thereof, to carry on its business of fire insurance in this State; that during the eleven months preceding February 2, 1898, the defendant acted as the agent and solicitor of the said insurance company within the corporate limits of the plaintiff, and as such agent and solicitor did solicit fire insurance risks therein for said insuranee company, and did issue a policy and receive tbe premium therefor in behalf of said insurance company; that during the time defendant was so acting as agent and solicitor of the said insurance company it had not taken out and did not have a license from the plaintiff city to carry on and transact its insurance business therein. The defendant was prosecuted and convicted for violating the provisions of the ordinance of the plaintiff set forth at the outset. The defendant brings' the case here by appeal.

The question which the defendant by his appeal has brought before us for decision is, whether the said ordinance, under which he was convicted, was enacted in excess of the power conferred on plaintiff by the provisions of its charter, and therefore void ? It has been seen that the tax required by said ordinance is a license tax. The imposition of such a-tax may be referable to the taxing power, the police power, or both; to the police power alone if the object is merely to regulate and the amount received merely pays the expense of enforcing the regulations, and to the taxing power alone if its main object is revenue. St. Louis v. Green, 7 Mo. App. 468; s. c., 70 Mo. 562. We are bound to know that the license fee of fifteen dollars exacted of each insurance company is far in excess of the reasonable expense of enforcement of any regulation, and hence we must conclude that the main object of the tax was revenue. And this conclusion is strengthened by reading ordinance No. 28 of plaintiff in connection with that in question, from which it will be seen that the license taxes provided by the latter are by the former required to be paid into the general revenue fund. Such license fee is nothing more nor less than an occupation tax imposed for revenue.

Adverting to section 84 of the Act of April 11, 1895, p. 65, which is plaintiff’s charter, and it will be seen that cities of the fourth class are there authorized “to regulate and to license and to levy and collect a license tax” on a great variety of occupations, privileges, trades and callings, including insurance companies. It is thus seen that by the express terms of the plaintiff’s charter, the power is conferred to not only license but to tax. And under this power the plaintiff was authorized to levy and collect a tax for revenue by way of a license, unless the exercise of that authority is taken away or forbidden by some other provision of law. Collections of words to be found in other statutes similar to that employed in plaintiff’s charter have been held to confer the power to tax for revenue. Springfield v. Smith, 138 Mo. 645 ; St. Louis v. Weitzel, 130 Mo. 600; St. Joseph v. Ernst, 95 Mo. 360; St. Louis v. Sternberg, 69 Mo. 289; St. Louis v. Green, ante; St. Louis v. Spiegel, 8 Mo. App. 478. We have no doubt that the plaintiff had the power under its charter to exact by ordinance a license tax for revenue on the privilege of carrying on the business of insurance within its limits.

But it is contended that this construction can not be upheld for the reason that by the terms of the second section of the act approved March 20, 1895, it is provided that the two per cent therein required to be paid by all foreign insurance companies on their annual premiums was to be “in lieu of all other taxes,” including the license tax authorized by the said Act of April 11, 1895. It will be seen by reference to the various sections of that act that it deals with and refers exclusively to the subject of taxation on the premiums annually received by insurance companies not organized under the laws of this State. It provided a scheme only for taxing the annual premiums of such insurance companies. No provision is therein made in relation to taxing such companies on the occupation or privilege of carrying on their business of insurance. The manifest object which the Legislature intended to accomplish no doubt was to provide a plan for centralizing the taxation of foreign insurance companies on the annual premiums received by them and to exempt them from the taxation theretofore imposed by counties, cities and towns. R. S. 1889, secs. 5958, 5959, 5961, 5963, 5964. By reference to the emergency clause of the act it will be seen that, after all, the main purpose intended by it was to withdraw from the counties, cities and towns, the power which was conferred upon them under the statute of 1899, supra, to tax foreign insurance companies on their annual premiums, or in other words to eliminate from the then existing statutes the power thereby given to the various local authorities to impose taxes on the annual premiums received by them. And these local taxes so abolished were we think, the “other taxes” referred to in the second section of the act. If we are correct in the foregoing conclusion, it must necessarily follow that the former act does not, by necessary implication, repeal the latter. Repeals by implication are disfavored and are not allowed, except where the obvious and inevitable result of the later act. The purpose of each act here is different from the other. There can be no repeal by implication in such case. Endlich on Interp. Stat., sec. 188; 23 Am. and Eng. Ency. of Law, 483. The provisions of the two acts previously referred to are, as we think, entirely consistent and harmonious. By one the Legislature says to the insurance companies that it will authorize cities of the fourth class, by ordinance, to tax them by license on the privilege of carrying on their business within the limits of such cities; and by the other it declares to such companies that it will require of them the payment of an annual tax of two per cent on the annual premiums received on the business done by them in the State. They do not authorize double but different methods of taxation. The exaction of a license tax for the privilege of carrying on an occupation or pursuit is quite a different thing from a tax on the annual income or premiums received from that business. The distinction is plain. Both may be properly taxed. St. Joseph v. Ernst, supra; St. Louis v. Green, supra. We can not, therefore, agree to the contention that the power conferred by the plaintiff’s charter is as to foreign insurance companies a police power only. The terms of the grant, it seems to us, are such as to confer both the power to regulate and to tax, and that the ordinance, the validity of which defendant calls in question, was within the power and must be upheld.

It results that the judgment will be affirmed.

All concur.