Gulley v. Lumbermen's Mut. Cas. Co.

• Decision Date: 16 March 1936
• Docket Number: 31808
• Parties: GULLY, STATE TAX COLLECTOR, v. LUMBERMEN'S MUT. CASUALTY Co
• Court: Mississippi Supreme Court

166 So. 541

168 So. 609, 176 Miss. 388

GULLY, STATE TAX COLLECTOR, v. LUMBERMEN'S MUT. CASUALTY Co

No. 31808

Supreme Court of Mississippi

March 16, 1936

March 16, 1936

(In Banc.)

1 STATUTES.

Particular terms of statute dealing with special subject control over general statutes dealing with subject in general.

2 INSURANCE.

Where statute provided that mutual insurance company should pay premium tax in lieu of all licenses and taxes except ad valorem taxes on realty, mutual company held not liable for privilege tax authorized by general statute (Code 1930, secs 5289, 5290; Laws 1930, chap. 88, sec. 103 (a)).

3 INSURANCE.

Statute relating to collection of privilege and premium taxes from insurance companies providing that section covering premium taxes should apply to mutual insurance companies held to authorize collection of privilege tax from mutual company notwithstanding prior statute providing for payment of premium tax by mutual companies in lieu of other taxes (Code 1930, secs. 5289, 5290; Laws 1932, chap. 89, secs. 111 (a), 111 (b)).

ETHRIDGE, J., and SMITH, C. J., dissenting in part.

ON SUGGESTION OF ERROR.

(In Banc. June 1, 1936.)

[168 So. 609. No. 31808.]

1. EVIDENCE.

Office of Insurance Commissioner is a co-ordinate branch of the state government, and courts will take judicial notice of its records and contents thereof.

2. CONSTITUTIONAL LAW.

Where there was no domestic mutual casualty insurance company licensed and doing business of such character in the state, foreign mutual casualty insurance company admitted into and doing such business in state could not question constitutionality of statute imposing tax on foreign, but not on domestic, mutual casualty insurance companies on ground statute violated equal protection clause of Federal Constitution (Laws 1932, chap. 89, secs. 111, 111 (a), 111 (b); Const. U.S. Amend. 14).

HON. J. P. ALEXANDER, Judge.

APPEAL from circuit court of Hinds county HON. J. P. ALEXANDER, Judge.

Suit by J. B. Gully, State Tax Collector, against the Lumbermen's Mutual Casualty Company. Judgment for defendant, and plaintiff appeals. Affirmed in part, reversed in part, and remanded.

On suggestion of error. Suggestion of error overruled.

Affirmed in part, reversed in part, and remanded.

Lotterhos & Travis, of Jackson, for appellant.

The question of whether or not the tax is due for the years beginning March 1, 1929 and March 1, 1930, depends upon the effect of the following statutes:

Laws of 1918, chapter 157, sections 16, 18, 19; chapter 118, Laws of 1926.

The question whether the tax is due for the years beginning March 1, 1931, and March 1, 1932, depends upon the following statutes: Article 15 of chapter 127, Code of 1930, governing mutual insurance companies, which statute as a part of the Code, of 1930 was adopted May 19, 1930, and was effective as of November 1, 1930.

Section 5287, Article 15, chapter 127, Code of 1930; section 16, chapter 157, Laws of 1918; section 5289, Article 15, chapter 127, Code of 1930; section 18, chapter 157, Laws of 1918; section 5290, Article 15, chapter 127, Code of 1930; chapter 88 Laws of 1930, sections 1, 103, 103 (a) and 103 (b).

The question whether the tax is due for the years beginning March 1, 1933 and 1934, depends upon the effect of the following statutes:

Sections 5287, 5289 and 5290. Code of 1930; sections 111, 111 (a)and 111 (b), chapter 89, Laws of 1932.

The decision of the court below holding that mutual casualty insurance companies are not required to pay the annual license tax follows the same construction of the statute which was adopted in the opinion rendered by the attorney-general on April 7, 1932, and which is exhibited with the defendant's plea. This opinion recognizes that the taxing statute taken alone appears to impose a privilege tax upon all insurance companies including mutual companies, but the opinion proceeds to construe section 3289 of the Code of 1930 on the theory that the taxing statute is a general law and the said code section is a special law. The opinion states that in case of apparent conflict the special provisions will prevail over the general provisions; and then states that since laws imposing privilege taxes must be liberally construed in favor of the taxpayer and strictly against the claim of the state, and since there was some doubt in the mind of the writer of the opinion as to whether or not a mutual causality company should pay a privilege tax, therefore, that it was the duty of the attorney-general to resolve the doubt in favor of the alleged taxpayer. For that reason the opinion concluded that mutual casualty companies were not required to pay the privilege tax.

When the applicable statutes are carefully analyzed we think the apparent conflict disappears; however, if there is any doubt existing we submit that the rule to be applied is the doctrine that in case of an exemption from taxation the exemption statute is to be strictly construed against the exemption.

Jackson Fertilizer Co, v. Stone, 162 So. 170.

Section 18 of the Act of 1918 says that mutual companies, whether foreign or domestic, shall not be subject to any other law of this state governing insurance companies "except as provided herein, or as such companies may be hereafter expressly designated in any other law." The words "except as provided herein" necessarily refer to said section 16. Hence, with the exception of the tax laws (and certain others mentioned in section 16) foreign mutual companies are not subject to general insurance laws unless expressly mentioned. But as to all tax laws, they are subject thereto without being expressly mentioned, except to the extent that the lieu provision of section 19 protects them. From this it follows that section 134 of the Act of 1926 is binding on the appellee, and imposes a license tax and a premium tax, which are in substitution for the lieu tax of said section 19.

It will be noted that section 16 is specific as to foreign mutual companies, while section 18 applies to both foreign and domestic mutual companies. Applying the doctrine of White v. Lowry, 162 Miss. 751, 139 So. 874, the particular provision applying to foreign companies will be superior to the general provision applying to both foreign and domestic, especially where the general provision contained in section 18 is in the nature of a broad exemption.

The statute of 1926 not being doubtful or ambiguous on its face, the appellee cannot create a doubt by reference to the prior statute of 1918.

59 C. J., Statutes, section 619.

It is possible that the Legislature, in reenacting the provisions of the Law of 1918 in the Code of 1930, renewed the exemption which mutual insurance companies had enjoyed prior to the privilege tax statute of 1926, but we submit to the court that any doubt as to the existence of this exemption should be resolved in favor of the state. It is to be noted that the privilege tax statute all the way through applies to all foreign insurance companies which would include both mutual and stock companies, whereas, the so-called exemption contained in the chapter on mutual insurance companies applies to all mutual companies whether foreign or domestic. Hence, it may reasonably be considered that the Legislature, in enacting the various statutes of 1930, intended to continue the exemption as to domestic mutual insurance companies, but intended for the exemption not to apply as to foreign mutual companies, which should be treated in like manner as foreign stock companies.

For the tax years beginning in 1933 and 1934, there can be no doubt that the appellee is required to pay the annual license tax and that the plea filed does not constitute a defense.

Chapter 89, Laws of 1932.

We submit that under this express language of the Act of 1932 the appellee is liable to the payment of an annual license tax of three hundred fifty dollars, plus damages. It is inescapable that this was the intention of the Legislature and that the tax must be paid.

Leon F. Hendrick, of Jackson, and Eugene Quay, of Chicago, Ill., for appellee.

The mutual insurance companies Act of 1918, chapter 157, Laws of 1918, as shown both by its title and by the scope of the sections composing the act, was designed to bring together in one statute the whole law of the state of Mississippi on the organization, admission, regulation and taxation of mutual insurance companies. It replaced a statute (Laws of 1912, chapter 171) which covered the whole subject of mutual insurance companies except their taxation, and so demonstrated in a striking way the purpose to take these companies out of the operation of general taxing laws. This special act of its nature deals with matters which, as to others than the single class or group with which it is concerned, are to be found in a great variety of general laws. Such a statute is complete in itself and no principle of construction is better settled than that general language contained in other statutes, prior or subsequent, and which would otherwise include the subject of the particular legislation as well as others, must be interpreted with reference to that particular statute, and the general language of other acts taken as applying to all except those for which the more special provisions has been made in the particular act. The special act is not repealed or affected in any way by an act of general character and language unless the latter makes a specific reference to it.

1 Lewis' Sutherland, Stat. Constr. Sees. 274 and 275.

A comprehensive general act, covering the whole subject of special assessments and containing no, express exemptions or limitations as to all properties or classes of property, must be construed as applying only to...