Fire Dept. of City of Oshkosh v. Tuttle

• Decision Date: 07 January 1880
• Citation: 4 N.W. 134,48 Wis. 91
• Parties: THE FIRE DEPARTMENT OF THE CITY OF OSHKOSH v. TUTTLE
• Court: Wisconsin Supreme Court

4 N.W. 134

48 Wis. 91

THE FIRE DEPARTMENT OF THE CITY OF OSHKOSH v. TUTTLE

Supreme Court of Wisconsin

January 7, 1880

Argued December 17, 1879

APPEAL from the Circuit Court for Winnebago County.

Plaintiff appealed from an order sustaining a demurrer to the complaint. The case is stated in the opinion.

Reversed and cause remanded.

H. B Jackson, for the appellant.

The cause was submitted for the respondent on the brief of Finch & Barber.

HARLOW S. ORTON, J.

OPINION

ORTON, J.

This action is brought against the defendant as the agent of certain foreign and domestic fire insurance companies doing business in the city of Oshkosh, to recover the two per cent of premiums received for insurance under the provisions of chapter 56, Laws of 1870, as amended by chapter 299, Laws of 1873. By the charter of the city, found in chapter 501, P. & L. Laws of 1868, this tax is to be paid by foreign insurance companies only, and on premiums received on business done within the city, and to the city treasurer. The general law authorizes the tax to be paid to the treasurer of the fire department by the agents of both foreign and domestic fire insurance companies doing business in any city or village of the state.

The only question raised by the demurrer to the complaint is, whether these provisions of the general insurance law apply to and are in force in the city of Oshkosh, to the exclusion of the provisions of the city charter upon the same subject; or, in other words, whether the general law repeals these provisions of the city charter. The general law and the charter, in these respects, cannot stand together without imposing a double tax, and prescribing different and conflicting modes of collecting it. We think there is abundant reason for holding that all special provisions of city and village charters relating to this subject are repealed by the general law.

First. The general law upon this subject has application only to cities and villages; and as many, if not most, of the cities and villages of the state are incorporated, and have special provisions upon this subject, the general law could have but very limited force and effect if it did not repeal and supersede such special provisions.

Second. The general law embraces both foreign and domestic fire insurance companies, and imposes a tax upon all of the business done by their agents, both in and without the city or village.

Third. The...