51 Neb. 870 | Neb. | 1897
The petition of the city of Minden. against the GermaaAmerican Fire Insurance Company alleged that Minden is a city of the second class maintaining a volunteer fire department, and that the defendant is a corporation engaged in the business of fire insurance in said city; that on the 6th of January, 1896, the mayor and council enacted an ordinance requiring all fire insurance companies doing business in said city to pay a license tax of $3 per annum, due and payable on the 1st day of May of each and every year; that the defendant failed and refused to pay the tax. The prayer was for judgment for the sum of $3 and interest. Made a part of the petition was a copy of the ordinance, as follows:
“An ordinance to impose a special license tax on fire insurance companies doing business in the city of Min-den, Nebraska, for the support and maintenance of the volunteer fire department of said city.
“Be it ordained ly the Mayor and Council of the City of Minden, Nebraska:
“Section 1. That for the use, support and maintenance and benefit of the volunteer fire department of the city of Minden, Nebraska, regularly organized under the laws of the state of Nebraska, a license tax of three dollars per annum be and the same is hereby levied upon each and every fire insurance company, corporation, or association doing business in the city of Minden, Nebraska.
“Section 2. Such license tax shall be due and payable on the first day of May of each and every year, and upon payment thereof to the city treasurer, and presentment of his receipt to the city clerk, a license shall be issued by the city clerk authorizing the insurance company paying same to do and transact business in the city of Minden for one year.
*872 “Section 3. It shall be unlawful for any fire insurance, company, corporation, or association to write, or cause to be written, any policy of fire insurance without first paying the license tax and procuring license as hereby provided.
“Section 4. It shall be unlawful for any agent or solicitor for any fire insurance company, corporation, or association to solicit, write, or cause to be written any policy of fire insurance for or in the name of any fire insurance company, corporation, or association unless the said fire insurance company, corporation, or association for which said insurance shall be or may be solicited, written, or caused to be written by such agent or solicitor, shall have first paid the license tax and have procured the license herein required.
“Section 5. The license tax herein required shall be due and payable on the first day of May of each and every year thereafter.
“Section 6. Any person, firm, corporation, association, solicitor, or agent violating any of the provisions of this ordinance shall be deemed guilty of misdemeanor, and upon conviction thereof shall pay a fine of not less than five dollars and- not more than one hundred dollars.
“Section 7. This ordinance shall be in force and take effect from and after its passage and publication as by law provided.”
A general demurrer to the petition was overruled, and the defendant electing to stand on the demurrer, judgment was entered'for the city. The defendant prosecutes this proceeding, assigning as error the overruling of the demurrer, and the question involved is the validity of the ordinance.
The city is governed by chapter 14, article 1, Compiled Statutes, and by subdivision 28 of section 39 of that article is authorized “to procure fire engines, hooks, ladders, buckets, and other apparatus, and organize fire engine, hook and ladder, and bucket companies, and to prescribe rules of duty and the government thereof, with such pen
We therefore proceed to consider the ordinance solely in the light of the charter provisions already quoted. It is conceded on all sides that in order to give efficacy to the ordinance it must be supported as an occupation tax, and not as a license. The authority of the legislature- to empower municipal corporations to levy occupation taxes, and the validity of such taxes when so levied in pursuance of legislative authority, have been frequently ■ affirmed. (State v. Bennett, 19 Neb., 191; City of Columbus v. Hartford Ins. Co., 25 Neb., 83; State v. Green, 27 Neb., 64; Magneau v. City of Fremont, 30 Neb., 843; Templeton v. City of Tekamah, 32 Neb., 542; Western Union Telegraph Co. v. City of Fremont, 39 Neb., 692.) It is true that in State v. Wheeler, 33 Neb., 563, an act of 1889 attempting to accomplish the same object as the act of 1895 was declared unconstitutional, and it is also true that while the opinion states that its validity was attacked for a number of reasons, it does not show clearly for what particular reason the court held it bad; but by comparing the opinion, the syllabus, and the briefs in the case it is quite evident that it was held bad because it was an attempt b.y the legislature, not to empower municipal corporations to impose a tax for corporate purposes, but to impose by the legislature itself a tax for corporate purposes on the inhabitants and property of the municipal corporation, this being forbidden by section 7, article 9, of the constitution. This case in nowise implies any restriction on the power of the legislature to authorize municipalities to themselves im
We now reach the question of the validity of this particular ordinance. Is it an attempt, and a valid one, to execute the power granted to impose an occupation tax, or is it in effect an attempt to impose a license? In Pleuler v. State, 11 Neb., 517, Judge Lake, in an elaborate and learned opinion, distinguished between license fees and taxes, and the court there held that in general a tax must be imposed solely for the purposes of revenue, while a license is imposed in the exercise of the police power, and has for its object the restriction or regulation of a certain occupation, the income derived from the license
Reversed and dismissed.