59 Neb. 417 | Neb. | 1899
The legislature of 1899 passed an act, which received executive approval, by its terms, inter alia, creating a state insurance bureau, naming the governor as commissioner in charge of such bureau, charging him with the duty of enforcing the laws relative to insurance and the supervision of insurance companies, and providing for the organization and incorporation of insurance companies, for their admission from other states and counties, and to regulate their conduct. See Session Laws, 1899, p. 207, ch. 47. Prior to said act, for more than a quarter of a century, the state insurance department was under the supervision and control of the auditor of public accounts, which department was by the said act of 1899 attempted to be wrested from the auditor and placed under the supervision of the chief executive of the state. This is an original action in quo warranto, in the name of the state, on the relation of John F. Cornell, auditor of public accounts, against William A. Poynter,
“Section 1. The legislature shall provide such revenue as may be needful, by levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property and franchises, the value to be ascertained in such manner as the legislature shall direct, and it shall have power to tax peddlers, auctioneers, brokers, hawkers, commission merchants, showmen, jugglers, inn-keepers, liquor dealers, toll bridges, ferries, insurance, telegraph and express interests or business, venders of patents, in such manner as it shall direct, by general law, uniform as to the class upon which it operates.
“Sec. 4. The legislature shall have no power to release or discharge any county, city, township, town, or district whatever, or the inhabitants thereof, or any corporation, or the property therein, from their or its proportionate share of taxes to be levied for state purposes, or due any municipal corporation, nor shall commutation for such taxes be authorized in any form whatever.”
Sections 36 and 37 of the act assailed follow:
“Sec. 36. Insurance companies shall pay fees in this state as follows: Domestic companies organized or incorporated under this act, shall pay fifty dollars ($50.00) for charter and all the necessary filings and papers to complete their incorporation. Domestic companies so incorporated, and those incorporated under any act re*425 pealed by this act, or in any way complying with this act, shall pay for filing each annual statement, twenty dollars ($20.00). For each agent’s certificate, fifty cents. Two certificates of publication, one dollar. The company’s annual license, or copy of same, one dollar. Each and every such domestic insurance company shall also be taxed upon the excess of premium received over losses and ordinary expenses incurred within the state during the year previous to the year of listing in the county where the agent conducts the business properly proportioned by the company at the same rate that all other personal property is taxed, and the said agent shall render the list and be personally liable for the tax; and if he refuse to render the said list or to make affidavit that' the same is correct the amount may be assessed accordingly to the best knowledge and discretion of the assessor. The fees and taxes herein provided for shall be in lieu of all fees and taxes, except taxes upon real estate and other taxes, provided in the general revenue law. Also an occupation tax or volunteer fire department tax not to exceed ($5.00) five dollars per annum for each agency, which any city, town or village in this state may impose by ordinance for the support of such fire department.
“Sec. 37. Every other state company shall pay one hundred dollars ($100.00), for depositing copy of charter, statement, and all the papers necessary to comply with this act, and the certificate of admission from the insurance commissioner. For filing copy of amended charter, seventy-five dollars ($75.00). Filing annual statement, fifty dollars ($50.00). Each agent’s certificate, two dollars ($2.00). Companies doing a life and accident business, shall file separate statements for each department of their business, and pay one hundred dollars ($100.00) each year for filing the two statements. Life insurance companies that also transact industrial business, shall file separate statements for each department of their business, and pay one hundred dollars ($100.00) each year for filing the two*426 statements. Miscellaneous companies shall report all their transactions on one statement, and pay the one fee of fifty dollars ($50.00) each year. Every other state insurance company, and every such miscellaneous company shall each year in the month of January, report under oath, to the insurance commissioner, the gross amount of premiums received for the preceding calendar year, upon or on account of life, accident, fire or miscellaneous business, or insurance affected on property located within this state; such report shall be sworn to by the president and treasurer, or other chief fiscal officer. Such companies shall pay two per cent of their gross premiums so reported, as an additional license fee to the state treasurer, and shall not be relicensed for the year, until this payment is made. Provided, Any such life or accident company, which is, under reciprocal provisions in this act, obliged to pay more than two dollars for the annual license hereinafter provided in this section, or is required to pay any sum into the state treasury for the school fund, shall be allowed to deduct such excess over two dollars, from its bill for taxes before paying the same. Every other state company shall annually pay two dollars for two certificates of publication, two dollars for annual license of the company, or copy of same. For every copy of paper filed, as herein provided, the sum of ten cents per folio, and one dollar for certifying the same and affixing the seal of the office thereto. The taxes and fees above provided shall be paid to the state treasurer, and shall be in full of all fees and taxes, except taxes on real estate, which may be imposed by any county; municipality or the state, unless otherwise provided by this act. Provided, That in cities of the first class having more than ten thousand inhabitants and in cities of the second class having more than five thousand inhabitants that maintain a fire department, the city council may by, ordinance impose an occupation tax on all fire insurance companies maintaining an agency in, or doing business in.such city, not to exceed ten dollars per annum; for*427 the benefit of such fire department. Provided further, that in cities of the second class having less than five thousand inhabitants and in villages that maintain a fire department, the city council or board of trustees may, by. ordinance impose an occupation tax on all fire insurance companies maintaining an agency or doing business in such city or village not to exceed five dollars per annum, for the benefit of such fire department.”
Before entering upon a discussion of the constitutional question to which we have alluded, it is important that there ever be kept in view that the judiciary will not declare an act of the legislature unconstitutional, unless it is clear that such act is inhibited by the fundamental law. If a reasonable doubt exists, it must be solved in favor of the validity of the statute. See Turner v. Althaus, 6 Nebr., 55; State v. Lancaster County, 4 Nebr., 537; Pleuler v. State, 11 Nebr., 547; Board of Directors Alfalfa Irrigation District v. Collins, 46 Nebr., 411; Davis v. State, 51 Nebr., 302. With this principle firmly implanted in our mind, we proceed to the consideration of the constitutional question.
The provisions of the constitution already quoted, which are invoked by the relator, are plain, and the language employed free from ambiguity. Their meaning is involved in ho doubt. The public revenues are required to be raised by the imposition of a tax by valuation, “so that every person and corporation shall pay a tax in proportion to the value of his, her or its property and franchises.” See Constitution, art. 9, sec. 1. To the legislature is committed the power of determining the manner for ascertaining the assessed value of property, as well as the authority to tax certain business interests and persons belonging to the avocations enumerated in said section 1, article 9, of the constitution. The rule of uniformity vouchsafed by said section forbids the enactment of any law exempting the property of any person or corporation from taxation, except such as enumerated in section 2, article 9, of the constitution. The property
By section 4, article 9, of the constitution the legislature, in plain and unequivocal language, is inhibited from enacting any law releasing or discharging any individual or corporation or property from their or its proportional share of taxes to be levied for state or municipal purposes. This court recognized and applied this provision when it held that the lawmaking body could not authorize the sale of tax certificates for sums less than the amount due. See State v. Graham, 17 Nebr., 43; Lancaster County v. Trimble, 33 Nebr., 121; State v. Berka, 20 Nebr., 375; Lancaster County v. Bush, 35
But it is argued by counsel for respondent that section 1, article 9, of the constitution was borrowed from the state of Illinois, and, having been previously construed by the supreme court of that state, we adopted the provision with the construction placed thereon. It is true our section 1, article 9, is substantially section 2, article 9, of the constitution of 1848 of Illinois, and the supreme court of that state in 1855, in Illinois C. R. Co. v. County of McLean, 17 Ill., 291, decided that it was within the constitutional power of the legislature to exempt property from taxation, or to commute the general rate for a fixed sum. The decision can not have the extra-territorial force for which counsel contend, for various reasons. The constitution of Illinois of 1848 was not in force at the time our constitution was adopted, it having been superseded by the constitution of that state of 1870; and the superseded instrument did not contain a provision corresponding to our section 4, article 9, which, in express terms, forbids the release, discharge or commutation of taxes. The absence from the constitution of 1848 of a provision similar to our section 4, article 9, alone makes the decision in Illinois C. R. Co. v. County of McLean, supra, inapplicable. Besides, such decision is in direct opposition to the decisions of this court, to which we have already called attention. Again, the supreme court of Illinois, both prior and subsequent to rendering of the decision in the case of Illinois C. R. Co. v. County of McLean, had placed a different construction on section 2, article 9, of the constitution of 1848 of Illinois. Thus, in construing that section in Trustees v. McConnel, 12 Ill., 138, it was ruled that it was not within the power of the legis
• A similar question was passed upon recently by the supreme court of Iowa in Hawkeye Ins. Co. v. French, 80 N. W. Rep. [Ia.], 660. The legislature of that state had passed a law which imposed a tax of one per cent on the gross earnings of certain insurance companies, to be paid into the state treasury, and exempted them from the payment of all other taxes, state or local, except taxes on real estate and special assessment. It was held that said legislation was invalid, since it contravened section 2, article 8, of the constitution of Iowa, which requires the property of all corporations for pecuniary profit be taxed the same as that of individuals. Deemer, J., in the course of the opinion of the court, observed: “It is the provision of the act relieving companies who have paid a tax on gross income from all other state and local taxes that is in issue. Under our law the individual pays taxes for state purposes, for county purposes, for city or municipal purposes; and for the support of the schools. If section 1333 is valid in all its provisions, insurance companies are not required to contribute anything to the county, the city, or the school district. These burdens are removed from their shoulders, although they may have large interests which require protection at the hands of the county and the city. It contributes to the state fund alone, and no part of its contribution ever reaches the smaller subdivisions of government. The objects of the tax are not the same as that collected from individuals, and the burdens are not equally distributed. This is so plain that no amount of argument or exposition will add anything to the statement. Property of corporations is not subject to taxation the same as individuals when the individual is compelled to pay taxes on his property to the county, the city, and the school district, and the corporation is not. Again, it is manifest that the personal property of corporations engaged in the business of insur-'
It remains to be considered what effect the unconstitutional provisions of said sections 36 and 37 have upon the remainder of the act of which they formed parts. The
Judgment accordingly.