German-American Fire Insurance Company v. City of Minden

• Decision Date: 03 June 1897
• Docket Number: 8962
• Citation: 71 N.W. 995,51 Neb. 870
• Parties: GERMAN-AMERICAN FIRE INSURANCE COMPANY v. CITY OF MINDEN
• Court: Nebraska Supreme Court

71 N.W. 995

51 Neb. 870

GERMAN-AMERICAN FIRE INSURANCE COMPANY v. CITY OF MINDEN

No. 8962

Supreme Court of Nebraska

June 3, 1897

ERROR from the district court of Kearney county. Tried below before BEALL, J. Reversed.

Reversed.

Greene & Breckenridge, for plaintiff in error.

L. W Hague and Stewart & Munger, contra.

OPINION

IRVINE, C.

The petition of the city of Minden against the German-American Fire Insurance Company alleged that Minden is a city of the second class maintaining a volunteer fire department, and that the defendant is a corporation engaged in the business of fire insurance in said city; that on the 6th of January 1896, the mayor and council enacted an ordinance requiring all fire insurance companies doing business in said city to pay a license tax of $ 3 per annum, due and payable on the 1st day of May of each and every year; that the defendant failed and refused to pay the tax. The prayer was for judgment for the sum of $ 3 and interest. Made a part of the petition was a copy of the ordinance, as follows:

"An ordinance to impose a special license tax on fire insurance companies doing business in the city of Minden, Nebraska, for the support and maintenance of the volunteer fire department of said city.

"Be it ordained by the Mayor and Council of the City of Minden, Nebraska:

"Section 1. That for the use, support and maintenance and benefit of the volunteer fire department of the city of Minden, Nebraska, regularly organized under the laws of the state of Nebraska, a license tax of three dollars per annum be and the same is hereby levied upon each and every fire insurance company, corporation, or association doing business in the city of Minden, Nebraska.

"Section 2. Such license tax shall be due and payable on the first day of May of each and every year, and upon payment thereof to the city treasurer, and presentment of his receipt to the city clerk, a license shall be issued by the city clerk authorizing the insurance company paying same to do and transact business in the city of Minden for one year.

"Section 3. It shall be unlawful for any fire insurance company, corporation, or association to write, or cause to be written, any policy of fire insurance without first paying the license tax and procuring license as hereby provided.

"Section 4. It shall be unlawful for any agent or solicitor for any fire insurance company, corporation, or association to solicit, write, or cause to be written any policy of fire insurance for or in the name of any fire insurance company, corporation, or association unless the said fire insurance company, corporation, or association for which said insurance shall be or may be solicited, written, or caused to be written by such agent or solicitor, shall have first paid the license tax and have procured the license herein required.

"Section 5. The license tax herein required shall be due and payable on the first day of May of each and every year thereafter.

"Section 6. Any person, firm, corporation, association, solicitor, or agent violating any of the provisions of this ordinance shall be deemed guilty of misdemeanor, and upon conviction thereof shall pay a fine of not less than five dollars and not more than one hundred dollars.

"Section 7. This ordinance shall be in force and take effect from and after its passage and publication as by law provided."

A general demurrer to the petition was overruled, and the defendant electing to stand on the demurrer, judgment was entered for the city. The defendant prosecutes this proceeding, assigning as error the overruling of the demurrer, and the question involved is the validity of the ordinance.

The city is governed by chapter 14, article 1, Compiled Statutes, and by subdivision 28 of section 39 of that article is authorized "to procure fire engines, hooks, ladders, buckets, and other apparatus, and organize fire engine, hook and ladder, and bucket companies, and to prescribe rules of duty and the government thereof, with such penalties as the council may deem proper, not exceeding one hundred dollars, and to make all necessary appropriations therefor." By subdivision 8 of section 69 of the same article such cities are empowered "to raise revenue by levying and collecting a license tax on any corporation or business within the limits of the city or village, and regulate the same by ordinance; all such taxes shall be uniform in respect to the classes upon which they are imposed." In 1895 there was passed (Session Laws, 1895, ch. 38) "An act authorizing the municipal authorities of cities of the second class and villages to enact an ordinance to impose a special license tax on insurance companies for the support and maintenance of volunteer fire departments." By this act it was provided that such cities and villages shall have authority by ordinance "to impose a license tax of not more than $ 5 per annum on each fire insurance corporation, company, or association doing business in such city or village, for the use, support, and benefit of volunteer fire departments, regularly organized under the laws of the state of Nebraska regulating the same." The ordinance in question was undoubtedly enacted with a view to complying with the act of 1895. The plaintiff in error attacks the validity of both the act and the ordinance. The applicability of the act of 1895 may be briefly disposed of by the suggestion of a dilemma. The general statute, already quoted, in existence at the time this act was passed, conferred authority to impose a license tax on any occupation for the purpose of raising revenue. If the act of 1895 did not in any manner extend or modify that power, it was at most declaratory of the existing law, and may be disregarded. If, on the other hand, its purpose was to extend or modify the existing grant of power, it failed to comply with that portion of section 11, article 3, of the constitution which requires that "No law shall be amended unless the new act contain the section or sections so amended, and the section or sections so amended shall be repealed." It is claimed that the act can be sustained as one complete in itself, but this is not true. It has for its manifest object merely the definition of the power of a certain class of municipal corporations on a particular subject, and that subject already covered by another statute. While it does not purport to be an amendatory act, it is clearly one in effect, and the legislature may not evade this constitutional provision merely by casting the act in the form of new legislation, if it be in fact amendatory in character. (Board of Education of Aurora v. Moses, 51 Neb. 288, 70 N.W. 946.)

We therefore proceed to consider the ordinance solely in the light of the charter provisions already quoted. It is conceded on all sides that in order to give efficacy to the ordinance it must be supported as an occupation tax, and not as a license. The authority of the legislature to empower municipal corporations to levy occupation taxes, and the validity of such taxes when so levied in pursuance of legislative authority, have been frequently affirmed. (State v. Bennett, 19 Neb. 191, 26 N.W. 714; City of Columbus v. Hartford Ins. Co., 25 Neb. 83 41 N.W. 140; State v. Green, 27 Neb. 64, 42 N.W. 913; Magneau v. City of Fremont, 30 Neb. 843, 47 N.W. 280; Templeton v. City of Tekamah, 32 Neb. 542, 49 N.W. 373; Western Union Telegraph Co. v. City of Fremont, 39 Neb. 692, 58 N.W. 415.) It is true that in State v. Wheeler, 33 Neb. 563, 50 N.W. 770, an act of 1889 attempting to accomplish the same object as the act of 1895 was declared unconstitutional, and it is also true that while the opinion states that its validity was attacked for a number of reasons, it does not show clearly for what particular reason the court held it bad; but by comparing the opinion, the syllabus, and the briefs in the case it is quite evident that it was held bad because it was an attempt by the legislature, not to empower municipal corporations to impose a tax for corporate purposes, but to impose by the legislature itself a tax for corporate purposes on the inhabitants and property of the municipal corporation, this being forbidden by section 7, article 9, of the constitution. This case in nowise implies any restriction on the power of the legislature to...