City of Vicksburg v. Sun Mut. Ins. Co.

• Decision Date: 15 October 1894
• Citation: 72 Miss. 67,16 So. 257
• Court: Mississippi Supreme Court
• Parties: CITY OF VICKSBURG v. SUN MUTUAL INSURANCE COMPANY

16 So. 257

72 Miss. 67

CITY OF VICKSBURG v. SUN MUTUAL INSURANCE COMPANY

Supreme Court of Mississippi

October 15, 1894

FROM the chancery court of Warren county. HON. CLAUDE PINTARD Chancellor.

The case is stated in the opinion.

Affirmed.

Booth &amp Anderson, for appellant.

While the subject of the act of 1882 is, in a general sense taxation, it is taxation of a peculiar kind, and under certain express limitations and for purely local purposes, and we submit that its subject-matter is not revised by the provisions of the code of 1892. The whole question is whether the act is a general or a local law, and whether, in any event, the subject-matter was revised by the code.

Shelton & Brunini, for appellee.

1. The subject of the act of 1882 was the power of cities to levy a privilege tax on insurance companies which had paid the state privilege tax. This subject was revised in § 3412, code 1892, and hence the act was repealed. The two statutes are directly repugnant. See French v. State, 52 Miss. 759; Railroad Co. v. Weiner, 49 Ib., 725. Counsel for appellant mistake the purpose for which the act was passed for the subject-matter.

2. Section 5 of the act of 1882 applies to all cities and towns having a regularly organized fire department; this makes it a general act. In determining whether an act is general or local, regard must be had to the substance rather than to the form. 6 Ohio 269; 83 Ill. 585. A law which operates on all standing in a certain relation or condition, is general. 39 Iowa 112. And so is an act which applies to or embraces all of a class of persons who are or may come into like circumstances or conditions. 86 Mo. 540; 85 Ib., 64; 77 Penn., 338; 84 Cal. 226; 21 Am. St. R., 780.

OPINION

WHITFIELD, J.

The appellee, the Sun Mutual Insurance Company, paid the privilege tax of $ 1,000 for the current year required by § 3352, code 1892, directly to the state treasurer, and received license from the auditor of public accounts. Notwithstanding this, the appellant, the Mayor and Aldermen of the City of Vicksburg, under the provisions of the act of March 9, 1882 (Laws, p. 166), imposed a privilege tax of $ 125 on appellee for transacting business in said city, and was proceeding to enforce its collection, when appellee sued out the injunction in this case, restraining its collection, claiming that the act of 1882 was repealed by the last clause of § 3412, code 1892, which provides that "a tax shall not be levied by . . . municipal authorities on the privilege tax imposed on insurance companies which shall pay the tax levied as above directly to the state treasurer and receive license from the auditor of public accounts. The appellant moved to dissolve the injunction on the face of the bill, which motion was overruled, and the appellant presents, by its assignment of error, the single question whether the act of 1882 is repealed by the last clause of § 3412, code 1892.

Section 587, code 1880, provided, as does § 3412, code 1892, that, where insurance companies paid the privilege tax therein provided directly to the state treasurer, and received license from the auditor of public accounts, no municipality should levy a tax on such privilege. The act of 1882, section 1, empowered the city "to assess a privilege tax of $ 125 per annum on each fire insurance company transacting business in said city." Sections 2 and 3 provide the machinery for the enforcement of the law, amongst other things, exacting from the holders of policies in companies that "have not paid the state and city taxes," a registration of such policies, and the payment of one fourth of one per cent. of the amount of such policies" into the city treasury, "to be appropriated to the support of the fire department," imposing penalties on them for failure so to do, and further providing that, should they not register such policies as required, one fourth of the amounts of such policies, "in case of loss occurring under such policies," should be forfeited to the city, and collected by its authorities "for the support of the fire department."

Section 4 provided that, "upon the payment by any company, to the Firemen's Charitable Association of Vicksburg, of one hundred dollars, such company should be exempt from the said tax of $ 125." Section 5 provided that "this act shall extend to all cities and towns in the state where there is a regularly organized fire department," but with the equitable provision that the amount of privilege tax to be levied on each company in each such "other city or town" should bear the same proportion to the $ 125 levied in Vicksburg that the "net premium receipts of each company in each such other city or town bears to the net premium receipts of such company in the city of Vicksburg. " The act is entitled an act to "confer certain powers on the board of mayor and aldermen of the city of Vicksburg and other cities and towns, to enable them to raise a fund for the firemen's charitable association."

Chapter 108 of the code of 1892, on privilege taxes, contains no reference to the act of 1882, but § 3412 re-enacts § 587, code of 1880, which was held in Smith v. Vicksburg, 54 Miss. 615, and Ex parte Ferguson, 59 Miss. 13, to be restrictive of the powers of municipalities in regard to levying privilege taxes.

It is said in Railroad v. Weiner, 49 Miss. 725, adopting the language of the supreme court of Massachusetts, "that a subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former."

Section 3 of the code of 1892 provides that, "after the first day of November, 1892, all acts and parts of acts the subjects Whereof are revised, consolidated and re-enacted in this code, or repugnant to the provisions therein contained, are hereby repealed," etc.

Appellant insists that the "subject" of the act of 1882 is the creation of a fund for the benefit of the firemen's charitable association and the support of the fire department. The substantive thing done by the act of 1882 is the "conferring" upon Vicksburg and all other cities and towns in the state having "regularly organized fire departments," the power to impose the privilege tax named in the manner indicated in the act; and, whilst it is true that the purpose for which the power is conferred is the creation of the fund described it must be held that "the subject" of the act, within the meaning of section 3, is...