*1 Morgantown Mutual Co. (CC 822) 13, 1955. 10, 1955. September Submitted Decided December concurring. President, Lovins, Largent, plaintiff. H. William for Donley, T. defendant. Robert Judge: Browning, here from Circuit Court

This case is certificate on Monongalia County. plaintiff, of Mor- The gantown, motion municipal corporation, a notice of defendant, Fi- judgment, seeks to recover Philadelphia, Company of delity Life Insurance $695.08, principal Pennsylvania, corporation, sum July, day 1st interest thereon from with alleges sum that this is due of motion notice under the of an ordinance adopted by the Common City Morgan- Council of the August 15, 1950, town on which ordinance “licensed” in- *2 surance engaged or associations in insur- ance City business within the Morgantown, and re- quired such licensed insurance equal annual fee” per “license a sum to one cent of the gross premiums upon policies received them of insur- covering persons ance residing, located, or property City Morgantown. The defendant filed its written judgment, assigning demurrer to the notice of motion for grounds, principally several the notice of motion sought imposed on upon shows its face that the tax to be “privilege” occupa- the. defendant is a and or “business tax”, City tion”- rather than a and that the “license authority upon levy has no a tax companies. The trial court overruled the de- murrer, questions arising and certified thereon to this Court. (i), 4, Chapter 126,

Subsection Section Article being this Act Morgantown, charter of reads: “The may by require city persons council ordinance license for conducting carrying any and on business or vocation in require for which the state or now hereafter a license.” general statute, Code, 8-4-13, upon

The which the Cir- Monongalia County ruling upon cuit Court of based its demurrer, provides: anything, “Whenever for which required, a state license is is to be done within such town may, by law, prohibited require the council unless a municipal therefor, may impose a tax thereon for the use town.” Lewis, Bluefield, In et al. v. et Va. W. upheld validity 188 S. E. Court of a gross

municipal selling on sales tax coal was, effect, theory coke that it a license -However, Shulick-Taylor tax. Company, et al. 2d. Wheeling, al, W. first, pertinent, syllabus point in the Letvis case overruled, syllabus point and the first in the Shulick- Taylor “Code, 8-4-13, case reads as follows: which dele- gates right to municipalities impose ‘any- a tax on thing, required,’ state license is does not municipality pass authorize a providing an ordinance cigarettes, privilege sales tax on Apparently and not pursuant a license tax.” to the de- Shulick-Taylor case, cision at its Extraordinary Session enacted following designated (b): statute, Code, 8-4-13 which it any occupation, which the “Whenever business or imposes thir- an annual tax under article engaged teen, code, chapter eleven of village any city, or carried on within town *3 body may by governing state, ordin- the council or similar law, impose ance, by existing a similar prohibited unless privilege city, tax town thereon for the of the use village: Provided, however, no case shall the That particular a. municipal privilege ac- rate of such tax on imposed by State, of tivity the exclusive exceed rate the * * *” Code, 11-13-3, However, as amended surtaxes. 153, by Chapter Acts of the and re-enacted “* * * pro- provides (a) apply not to: of this Article shall visions Insurance^ Virginia a tax pay of West the State which however, exempt- Provided, said premiums: That of income extend ion shall not use of real for the which is received com- any such property which property, than other State, offices, whether in this pany its office or maintains royalties; rentals or form of be in the such income defendant, including companies, the Obviously, insurance State, exempt are upon premiums to the pay tax by of imposition provision from under this plaintiff Morgantown of a here im- this, tax deny but maintains does not pro- its charter posed is a license based Code, of 8-4-13. visions City Hunt syllabus Hukle et al. v. 1 of the

Point ington, quoted E. 2d. 134 W. Va. 58 S. Bishop, 68 Fairmont v. Va.W. S. municipality pow reads as follows: “A has no inherent taxes; levy only by er to it can do so virtue of the auth delegated legislature. ority by powers to it Its are limited, vesting power it with statute to tax strictly strictly followed; be must construed and in con struing against the statute all doubts should be resolved taxpayer.” and in favor Walker, City Morgantown, In et al. 137 W. E. 2d. this Court held that where a municipal tax ordinance regulatory contained features, no required performed no duties to be the municipality except fees, the collection of license and contained no language indicating proceeds whether thereof were general paid to be into treasury municipality, carrying or were to expense be used out provisions ordinance, a revenue is measure police pow in wise “and levies license tax under the delegated municipality.” er to such provisions

It true that under the 8-4-13, require municipal anything city, whch is to done within the and im pose thing a tax thereon if same a State license required. required by A State license is an insurance company before it can do this State Code, 33-1-8, 33-2-6. as amended *4 Legislature, Regular Acts of “* * * in 1955 reads as follows: For annual fee for ** license, fifty dollars; each *.” Prior to Amend this ment, dollars, the annual license fee was ten Section, prior Amendment, both to and after the 1955 required payment by also insurance certain charges. Code, 33-2-37, provides “Every service company insurance licensed to transact business in this * * * gross annually, make a return State shall * * * premiums amount of collected and received * * tax state; The annual *. done this on business pay required company a insurance licensed equal a under be sum this section shall by it on per gross premiums received to two cent of the State, *. All written or renewed business paid him paid such taxes commissioner shall fund.” treasury the state for the benefit of into the state municipal ordinance (Italics supplied.) That the patterned after question here is amended, 83-2-37, a revenue Code, which is as amended, requiring 33-1-8, insur tax, Code, as and not tax, pay is obvious. a State ance tax, necessary to make ordinance a license elements privilege tax, rule a in accordance with the than rather City Morgantown, Walker, et al. laid down in per present. supra, not The two cent are clearly companies imposed the State is upon insurance measure, ordinance. as is revenue Virginia a tax pay the of West companies which tax, municipal exempt from such premiums are noted. heretofore Chapter 33 of apparent from an examination

It is thereto since amendments the several companies placed insurance has That corporations. from other separate category companies. foreign insurance domestic of both true privilege tax per cent pay a two required to are now Both satisfy companies must all premiums, and Commissioner, created office was whose the Insurance enforcing regulating the laws purpose of sole qualified they companies, are applicable to insurance they can transact license before for a State paid, license must be for such Certain fees this State. will be actually a license constitute which fees 31-1-8, observed expense paying the used thereof proceeds department. Commissioner’s operating the Insurance are companies which re- licensed It is gross premiums, per under cent on quired two *5 410 provisions Code, 33-2-37, by Chapter Regular Legislature, Acts of the here- quoted.

tofore foreign question corpora of whether a insurance required tion is qualify Secretary with the Auditor, complying stringent addition to with the regulations Chapter Commissioner, was determined this Court Sims, 1954, Ins. v.Co. 140 W. Va.

49, 82 S. E. 2d. 312. In the Court’s written Judge Lovins, question nega was answered in the foreign tive: “Are required qualify under 80, Chapter Code 31-1-79 and Section Regular Legislature, 1939, Acts of the (Michie’s Session, Code, 1949, 935), Serial Section as well as under Code 33-2-5, 6, corporations; as insurance *?” To avoid the “chaos and confusion” which result from a care authority, less citation it should be noted that the ref erence to “Code 31-1-79” is inaccurate since this section by Chapter 29, was amended Legislature, Regular Session, at by Chapter 108, materially changed Judge Lovins, of “Code 33-2-5”. concurring opinion Trussler, Superin in his Cochran Upshur County Schools, tendent 141 Va.W. 306, succinctly “Hitherto, 89 S. E. 2d. stated that: practice usage by has been the Court accur ately designate statutes as Acts of the when adoption have such statutes been enacted after the only official Code of the State of * *”* Virginia. West “The Bench and the Bar of this State are entitled to accurate citations of the authorities opinion. By accuracy, cited in an chaos con Otherwise, fusion been avoided. citation careless * *” * of such authorities results confusion. authority, Since has come, it could source from which impose insurance com- Virginia West a tax panies, which the State of *6 premiums, ordinance, upon relies the judg- proceeding in of motion for recover notice do, ment, invalid, attempts in far it toso is so notice motion for to the demurrer the defendants judgment been decision should have sustained. controlling question upon the makes it unneces- this Court questions which were certified. sary to discuss other Monongalia County in Court of of the Circuit The action overruling demurrer is reversed. defendant’s

Ruling reversed. concurring: President, Lovins, case, I do but in this I reached concur in result “ * * * language: following use not concur Sims, 1954, 140 W. Ins. Co. v. Mutual Life writ In the Court’s 49, 312. 82 2d Va. in the answered Judge Lovins, question was ten companies required to foreign negative: ‘Are 80, Chapter and Section Code 31-1-79 qualify under Regular Session, (Michie’s Acts of 935), Code, 1949, well under Code Serial Section * ** corporations; ?’ avoid 33-2-5, 6, To as insurance a care result from and confusion’ which the ‘chaos authority, it should be noted less citation since this sec 31-179’ inaccurate to ‘Code is reference Legisla by Chapter 29, tion Regular Session, ture, at the 1951. by Chapter 108, materially 1951 Judge Lovins, changed of ‘Code 33-2-5’. concurring Super opinion Trussler, Cochran v. his Upshur County Schools, 1955, intendent Va.W. ‘Hitherto, succintly E. 2d 89 S. stated practice usuage by has been this Court ac curately designate statutes as Acts adoption when such statutes been enacted after the of the 1931 official which is Code of the * * * Virginia. State of West ’. ‘The Bench and the Bar of this are entitled to accurate citations of the opinion. By accuracy, authorities cited in an chaos and confusion have Otherwise, been avoided. a care in confusion. results authorities citation

less ^[*] ^[*] clearly dic- obiter above language quoted

First, in- decision unnecessary for therefore tum in the inclusion its Second, attribute I can case. stant except vindictiveness. reason other opinion to instant pro- opinion is instant the writer I infer the case of concurring note in I filed voked because Upshur County Superintendent Trussler, Cochran Third, E. 2d 89 S. Schools, 141 W. designed create evidently quoted thing and do writings, say one I, my inference that intention. I have no such another. *7 anything I concur- wrote

I not recede do I reiterate Trussler case. in the ring me note filed reemphasize there written. what was designate improperly oversight me to It was an Code when it Official of the 31-1-79 as Code Legislature, of the Chapter Acts was Chapter 26, again by Acts Regular Regular Session. failing properly it should have cite 33-2-5 when designated been Session. accept primary responsibility

I erroneous designations. secondary responsibility for such As oversights error, explicitly say. I These could do not opinion my attention have been called to before Sims, supra, Ins. Co. filed. simple correcting A in the instant statement citations, would sufficed. object Since the opinion which I inis I result, of this Court wherein concur in the I am left except concurring no alternative to file this note. engaging deprecate I controversy ain of this nature public print, many things and while there are said, say I could will no more. I write this con- curring my position. note to state