German Washington Mutual Fire Insurance v. City of Louisville

117 Ky. 593 | Ky. Ct. App. | 1904

Lead Opinion

Opinion of the court by

JUDGE BARKER

Affirming.

The appellant is an assessment or co-operative fire insurance company, organized under subdivision 5, c. 32, Ky. St., having its chief office and1 principal place of business in Louisville, Ky. The corporation having refused' to list its personal property for taxation as by law required, the city of Louisville arbitrarily assessed it with the sum of $50,000 for the years 1899, 1900, 1901, and 1902. Appellant having refused to pay the tax so assessed, this action was instituted for the purpose of enforcing payment.

No claim is made by appellant that it did not own the personalty with which it was assessed. It claims, however, that, being a co-operative insurance company, without stock, inasmuch as its various members pay taxes upon the property insured; therefore to tax the personalty of the corporation would be double taxation. It is difficult to understand the reasoning upon which this claim is predicated. Section' 171 of the Constitution provides that “taxes shall be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax.” Section 172: “All property not exempt from taxation by this 'Constitution shall be assessed for taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale. . . .” And section 174: “All property, whether owned by natural persons, or by corporations, shall be taxed in proportion to its value, unless exempt by this Constitution, and all corporation property shall pay the same rate of taxation paid by individual property. Nothing in this Constitution shall be construed to prevent the General Assembly from providing for taxation based on income licenses or franchises.” Section 181 provides that the Legislature “may, by general laws, delegate the power to county, town, city and other municipal corporations, to impose and collect license fees on stock used for breeding purposes, on franchises, trades, occupations and professions.” It will thus be seen tliat the Constitution provides a general system for the taxation of all real and personal property by an ad valorem tax, and also delegates power to the Legislature to authorize the various municipalities to collect franchise and occupation taxes. Because the members pay an ad valorem tax upon the property insured, it does not follow that the imposition of an ad valorem tax on the personalty of the corporation is double taxation. If the personalty of the corporation was in the hands of the individual members, it would still be taxable in addition to their other property. The money sought to be taxed in this case is contributed by the various members for the purpose of indemnifying any member for the loss of his property by fire. • 'Tkisi money, as well as the insured property, is subject to taxation. The money in the hands of the corporation being taxed once, I and the property in the hands ” of the individual members ¡"being taxed once, this is not double taxation. It is simply ¡¡ the enforcement of the constitutional rule that all property, whether real or personal, shall pay a uniform rate of •ad valorem taxation.

It is further contended by appellant that, inasmuch as it was required by an ordinance of the city of Louisville I to pay a license for carrying on the business of a fire in- / surance company for the years wherein the ad valorem tax is sought to be collected, that fact makes the collection of the ad valorem tax double taxation. After the passage of the act for the government of cities of the first class in 1898, the municipality sought to tax certain business by . means of a license, which was to be in lieu of the ad valorem tax prescribed by the Constitution.

In the case of Levi v. City of Louisville, 97 Ky., 394, 16 R., 872, 30 S. W., 973, 28 L. R. A., 480, it was held that this could not be done, that the ad valorem tax must be enforced uniformly, and that the license or occupation tax must be in addition to the ad valorem tax. The court,, in thus overturning the system by which the municipality sought to substitute a system of licenses in lieu of the ad valorem tax, after directing that the ad valorem tax should be retrospectively imposed, said that inasmuch as the license fees, as indicated by their amount, approximated the value of the ad valorem tax,, the former might be deducted from or credited on the latter for the given years. But this was done only because the licenses had been imposed as a substitute for the ad valorem system, and the language of the court has no application where the license is an occupation tax, and is imposed in addition to the ad valorem system. Section 3011, Ky. St., provides: “The general council (of cities of the first class) may, by ordinance, provide for the following licenses to be paid into the sinking fund with added penalties for doing business', for following the calling, occupation, profession, or the using or holding or exhibiting of the articles herein named, without the required license.” Then follows the general list, including specifically the name of every business which the Legislature could call to mind, among which were the following: “Every life, fire, or accident, casualty, and indemnity insurance company. . . . doing business in this city, shall on or before the first day of February of each year pay to the sinking fund not less than two nor more than three dollars on every one hundred dollars of premiums received on business done in the city during the previous year.” In pursuance of this authority, the general council on April 1, 1896, enacted an ordinance entitled “An ordinance providing for certain licenses for the sinking fund of the City of Louisville,” which is as follows: “Be it ordered by the general council of the City of Louisville: Section 1. That hereafter the following licenses shall be paid into the sinking fund of the city of Louisville, for the purpose of the sinking fund, for doing the business, following the calling, occupation and profession, or using, or holding, or exhibiting the articles hereinafter named in the city of Louisville, in addition to the ad valorem tax heretofore levied, or hereafter to be levied on any species of property in the city of Louisville. . . .” Among the occupations required to be taxed by the provisions of this ordinance were the following: “Every life, fire, accident, casualty and) indemnity insurance company doing business in this city shall, on or before the first day of February of each year, pay to the sinking fund the sum of two dollars and fifty cents on every one hundred dollars of premiums on business done in the city during the previous year. . . .” It will be observed that this ordinance specifically provides that the license shall be in addition to the ad valorem tax required by the •Constitution and the charter to be paid on all property within the city limits. That the general council had the right thus to require the payment of the occupation tax in question, in addition to the ad valorem tax, was' clearly settled in the cases of Levi v. City of Louisville, supra, Commonwealth v. Pearl Laundry Company, etc., 105 Ky., 259, 20 R., 1172, 49 S. W., 26, and Fidelity Casualty Company v. City of Louisville (106 Ky., 207, 20 R., 1785) 50 S. W., 35. The opinions in these three cases are conclusive of the right of the municipality ti> levy the occupation tax provided for by the ordinance, in addition to the ad valorem tax required by the Constitution and the charter. They are so exhaustive of the subject, and so plain In their meaning, that it is unnecessary to further attempt to elucidate the proposition. It follows that appellant is not entitled to a credit of the amount of the license tax paid under the ordinance on the ad valorem bills sued on.

The judgment of the chancellor is affirmed.

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Rehearing

Response by

Judge Hobson

to petition for rehearing.

We have read with interest the petition for rehearing, and have reconsidered the questions raised, but are unable to see that any reason exlists' for modifying the opinion which we .rendered herein. The clerical error in appellant’s corporate name did not vitiate the tax bills. The sense is perfectly apparent. The city taxes in the same way as appellant, all iike corporations. The fact that as to other corporations unlike appellant a different system is devised does not affect it, as no injustice is thereby done it.. The Legislature may properly classify taxpayers in devising an equal system of taxation.. No right of appellant under the federal or State Constitution appears to have been violated. This question was considered on the original hearing, but omitted from the opinion.

The petition is. overruled.