City of Cape Girardeau v. Comer

• Decision Date: 04 October 1938
• Docket Number: No. 24671.,24671.
• Citation: 119 S.W.2d 1005
• Parties: CITY OF CAPE GIRARDEAU v. COMER.
• Court: Missouri Court of Appeals

119 S.W.2d 1005

CITY OF CAPE GIRARDEAU v. COMER.

No. 24671.

St. Louis Court of Appeals. Missouri.

October 4, 1938.

Rehearing Denied October 18, 1938.

Appeal from Cape Girardeau Court of Common Pleas; L. L. Bowman, Judge.

"Not to be published in State Reports."

Action by the City of Cape Girardeau, Missouri, against W. F. Comer for violation of an ordinance of City of Cape Girardeau imposing a license tax of $50 a year upon the privilege of engaging in the occupation, vocation, or business of fire or casualty insurance agent. From a judgment of conviction, defendant appeals.

Affirmed.

Cowgill & Popham, of Kansas City, and Oliver & Oliver, of Cape Girardeau, for appellant.

R. P. Smith and B. Hugh Smith, both of Cape Girardeau, for respondent.

BENNICK, Commissioner.

This is an appeal by the defendant from a judgment of conviction which was entered against him in the Cape Girardeau Court of Common Pleas upon his appeal to that court from a prior conviction in the police court of the City of Cape Girardeau.

Defendant is the Cape Girardeau representative of a reciprocal known and designated as the Farmers Automobile Inter-Insurance Exchange of Los Angeles, California, and as such stands convicted of the violation of an ordinance of the City of Cape Girardeau levying and imposing a license tax of $50 a year upon the privilege of engaging in the occupation, vocation, or business of fire or casualty insurance agent. It is admitted that neither defendant nor any one for him has paid the license tax imposed by the ordinance, and the question at issue is that of the right of plaintiff city to require the payment of such a license tax on the part of a local representative of a reciprocal exchange, and particularly so when the exchange has itself concededly paid the state the license fee of $20 required by Section 5976, R.S.Mo. 1929, Mo.St.Ann. § 5976, p. 4551, as the fee for the issuance by the superintendent of insurance of the annual certificate of authority to the designated attorney in fact by or through whom the policies or contracts for indemnity are exchanged between the subscribers.

In other words, defendant argues that Chapter 37, Article 11, R.S.Mo.1929, Mo. St.Ann. § 5966 et seq., p. 4547 et seq., is specifically made exclusive upon the question of the rights and obligations of reciprocal exchanges engaged in the writing of inter-insurance contracts, and that inasmuch as Section 5976, supra, provides that the fee of $20 paid by the attorney in fact for the issuance of the certificate of authority "shall be in lieu of all license fees and taxes of whatever character in this state", the necessary consequence is to exclude, not only such an exchange, but also its agents as well, from the operation of a local city ordinance which seeks to impose a license tax upon either the exchange or its agents through whom its business is conducted.

It has been heretofore determined that so far...