City of Vicksburg v. Sun Mutual Insurance

72 Miss. 67 | Miss. | 1894

Whitfield, J.,

delivered the opinion of the court.

The appellee, the Sun Mutual Insurance Company, paid, the privilege tax of $1,000 for the current year required by § 3352, code 1892, directly to the state treasurer, and received license from the auditor of public accounts. Notwithstanding this, the appellant, the Mayor and Aldermen of the City of Vicksburg, under the provisions of the act of March 9, 1882 (Laws, p. 166), imposed a privilege tax of $125 on appellee for transacting business in said city, and was proceeding to enforce its collection, when appellee sued out the injunction in this case, restraining its collection, claiming that the act of 1882 was repealed by the last clause of § 3412, code 1892, which provides that ‘' a tax shall not be levied by . municipal authorities on the privilege tax imposed on insurance companies which shall pay the tax levied as above directly to the state treasurer and receive license from the auditor of public accounts. The appellant moved to dissolve the injunction on the face of the bill, which motion was overruled, and the appellant presents, by its assignment of error, the single question whether the act of 1882 is repealed by the last clause of § 3412, code 1892.

Section 587, code 1880, provided, as does § 3412, code 1892, that, where insurance companies paid the privilege tax therein provided directly to the state treasurer, and received license from the auditor of public accounts, no municipality should levy a tax on such privilege. The act of 1882, section 1, empowered the city “to assess a privilege tax of §125 per an-num on each lire insurance company transacting business in said city. ’ ’ Sections 2 and 3 provide the machinery for the enforcement of the law, amongst other things, exacting from the holders of policies in companies that ‘ ‘ have not paid the state and city taxes, ’ ’ a registration of such policies, and the payment of one fourth of one per cent, of the amount of such policies ’ ’ into the city treasury, ‘ ‘ to be appropriated to the support of the fire department,” imposing penalties on them for failure so to do, and further providing, that, should they not register such policies as required, one fourth of the amounts of such policies, " in case of loss occurring under such policies, ” should be forfeited to the city, and collected by its authorities " for the support of the fire department. ’ ’

Section 4 provided that, “upon the payment, by any company, to the Firemen’s Charitable Association of Vicksburg, of one hundred dollars, such company should be exempt from the said tax of §125.” Section 5 provided that “this act shall extend to all cities and towns in the state where there is a regularly organized fire department, ’ ’ but with the equitable provision that the amount of privilege tax to be levied on each company in each such " other city or town ’ ’ should bear the same proportion to the $125 levied in Vicksburg that the " net premium receipts of each company in each such other city or town bears to the net premium receipts of such company in the city of Vicksburg. ’ ’ The act is entitled an act to ' ‘ confer certain powers on the board of mayor and aldermen of the city of Vicksburg and other cities and towns, to enable them to raise a fund for the firemen’s charitable association. ’ ’

Chapter 108 of the code of 1892, on privilege taxes, contains no reference to the act of 1882, but § 3412 re-enacts § 587, code of 1880, which -was held in Smith v. Vicksburg, 54 Miss., 615, and Ex parte Ferguson, 59 Miss., 13, to be restrictive of the powers of municipalities in regard to levying privilege taxes.

It is said in Railroad v. Weiner, 49 Miss., 725, adopting the language of the supreme court of Massachusetts, ‘'that a subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express -words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former.”

Section 3 of the code of 1892 provides that, " after the first day of November, 1892, all acts and parts of acts the subjects whereof are revised, consolidated and re-enacted in this code, or repugnant to the provisions therein contained, are hereby repealed,” etc.

Appellant insists that the "subject” of the act of 1882 is the creation of a fund for the benefit- of the firemen’s charitable association and the support of the fire department. The substantive thing done by the act of 1882 is the “conferring” upon Vicksburg and all other cities and towns in the state having ' ‘ regularly organized fire departments, ’ ’ the power to impose the privilege tax named in the manner indicated in the act; and, whilst it is true that the purpose for which the power is conferred is the creation of the fund described, it must be held that “the subject” of the act, within the meaning of section 3, is the conferring of such power, and not the purpose or mode of its exercise. The title of the act itself sufficiently indicates this. The language of the title is “an act to confer certain powers, ’ ’ etc., ' ‘ upon the . . . city of Vicksburg and other cities and towns,’’ etc., “to enable them to raise a fund, ’ ’ etc.

But it is urged that the act of 1882 is a local act, and hence within the saving of § 8, code 1892. In determining whether an act is local or general, regard should be had to the substance, and not the mere form given to the enactment. People v. Cooper, 83 Ill., 585. In State v. Spaude, 37 Minn., 322, the court says: " A law, to be general, need not operate alike upon all the inhabitants of the state or on all the cities or all the villages in the state. To require that would be utterly impracticable. A law is general which operates alike upon all the inhabitants or all the cities or all the villages or other subjects of a class of such subjects of legislation. ’ ’ ' A11 that is required of such law, in order that it may be uniform, is that it equally affects all cities in like situations. *’ IIaskel v. Burlington., 30 Iowa, 232; State v. Wilcox, 45 Mo.,458. " So, an act which applies to and embraces all of a class of persons who are, or may come into, like situations or circumstances, is a general law. ’ ’ Phillips v. Railroad Co., 86 Mo., 540; McAunich v. Railroad Co., 20 Iowa, 338. See Mr. Freeman’s exhaustive note, 21 Am. St. Rep., 780, et seq., and Nichols v. Walter, 37 Minn., 264. An excellent statement of the true test is given in the Am. & Eng. Enc. L., vol. 23, p. 148: “If the objects of a statute are distinguished from others by characteristics evincing a peculiar relation to the legislative purpose, and showing the legislation to be reasonably appropriate to the former and inappropriate to the latter, the objects will be considered, as respects such legislation, to be a class by themselves, and legislation affecting such a class to be general.”

It does not appear whether there were any firemen’s charitable associations, or any fire departments, in any other city than Vicksburg; and, whilst the act does not expressly so state, it seems to be its intent that'fire insurance companies doing business in such other cities and towns could secure exemption from the proportioned privilege tax imposed on them in section 5 for doing business therein, by paying to the firemen’s charitable associations, if any existed in such other cities and towns, a correspondingly proportioned part of the $100 required to secure for them such exemption in the city of Vicksburg. The act is crudely drawn, but it sufficiently appears that the scheme it propounded Avas to vest Vicksburg, and all other cities and towns in the state having regularly organized fire departments, with the power to impose such privilege tax, for the purpose of creating a fund for the benefit of firemen’s charitable associations and the support of fire departments in all such cities. If section 5 were omitted, it would, of course, l?e local, but that section extends the benefits of the act, as applied to Vicksburg, nnutatis mutandis, by equitable adaptation, to all other cities and towns in the state having regularly organized fire departments, selecting, thus, for the operation of the act, a class of towns and cities distinguished by this characteristic from all others. The act " deals Avith a condition of things,” as said in IIaskel v. Burlington, 30 Iowa, 232, ‘ ‘ and attaches to it certain consequences, so that Avhenever that condition exists, the consequences follow. ’ ’

The act of 1882 is, therefore, a general act. Its subject— the power of municipalities to levy privilege taxes upon fire insurance companies which have paid the privilege tax provided in | 3352, code of 1892, directly to the state treasurer and received license from the auditor — is revised in § 3412 of said code, and the last clause of said section is repugnant to and repeals said'act of 1882. Wherefore, the decree is

Affirmed.