Great Am. Ins. Co. v. Johnson, 457

• Decision Date: 15 June 1962
• Docket Number: No. 457,457
• Citation: 257 N.C. 367,126 S.E.2d 92
• Court: North Carolina Supreme Court
• Parties: GREAT AMERICAN INSURANCE COMPANY v. William A. JOHNSON, Commissioner of Revenue, and Charles F. Gold, Commissioner of Insurance, Defendants. EMPLOYERS MUTUAL FIRE INSURANCE COMPANY v. W. A. JOHNSON, Commissioner of Revenue, and Charles F. Gold, Commissioner of Insurance, Defendants.

Page 92

126 S.E.2d 92

257 N.C. 367

GREAT AMERICAN INSURANCE COMPANY v. William A. JOHNSON, Commissioner of Revenue, and Charles F.

Gold, Commissioner of Insurance, Defendants.

EMPLOYERS MUTUAL FIRE INSURANCE COMPANY v. W. A. JOHNSON, Commissioner of Revenue, and Charles F. Gold, Commissioner of Insurance, Defendants.

No. 457

Supreme Court of North Carolina.

June 15, 1962

Joyner & Howison by W. T. Joyner, Jr., and Allen, Hipp & Steed, by Arch T. Allen, Raleigh, for plaintiff appellants.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Lucius W. Pullen, for defendant appellees.

RODMAN, Justice.

The 1957 Legislature, by c. 1420 of the laws of that Session, imposed a tax on purchasers of fire and lightning insurance to provide funds which, with contributions made by firemen, would suffice to create and maintain a fund from which qualified retired firemen would be paid a monthly sum, dependent in amount upon age and service. That act was, in January 1959, held unconstitutional. American Equitable Assurance Co. v. Gold, Comr. of Insurance, 249 N.C. 461, 106 S.E.2d 875.

Plaintiffs who attacked the 1957 statute based their claim of invalidity in part on grounds on which plaintiffs here challenge the 1959 statutes. Since the 1957 statute was manifestly void for the reason given in the opinion, it was not then thought necessary to discuss and pass on the other reasons advanced to invalidate that act.

The 1959 Legislature convened a week after the opinion was filed in American Equitable Assurance Co. v. Gold, Comr. of Insurance, supra. Advocates of the proposal to pension firemen introduced in the House three bills numbered and captioned as follows: H.B. 689, 'AN ACT TO AMEND G.S. 105-228.5 RELATING TO TAXES UPON INSURANCE COMPANIES'; H.B. 690, 'AN ACT CREATING A FIREMEN'S PENSION FUND'; and H.B. 785, 'AN ACT TO APPROPRIATE FUNDS FROM THE GENERAL FUND TO THE NORTH CAROLINA FIREMEN'S PENSION FUND.' Bills 689 and 690 were ratified 19 June; bill 785, the appropriations act, was ratified 20 June. They became cc. 1211, 1212, and 1273, S.L. 1959.

Plaintiffs assert these statutes, although separately enacted, must be treated as a single act enabling retired firemen to receive pensions derived, so far as taxes are considered, solely from moneys which plaintiffs and like corporations must contribute. This is the crucial question for discussion. Before reaching this question, it is proper to dispose of other questions urged to invalidate the several statutes.

C. 1212, S.L.1959, added art. 3 to c. 118 of the General Statutes. Sec. 1 of the act declares its purpose to reduce fire losses by more efficient local fire departments, and, to accomplish that purpose, sets up a fund from which retired firemen may receive pensions. This fund is composed in part of payments made by firemen who wish to take advantage of the statute and in part by appropriations by the State. To be eligible for pensions, firemen must meet specified conditions relating to training, length and continuity of service.

Sec. 2 of the act reads: 'It is the purpose and intent of this Act that the State's contribution to the pension fund created hereby be derived solely from the proceeds of a one per cent (1%) tax imposed by the 1959 General Assembly upon amounts collected on contracts of insurance applicable to fire and lightning. In the event that such tax should not be imposed or that no appropriation be made for said fund, or in the event that such tax should be declared unconstitutional or invalid, then the fund herein established shall be dissolved.'

Plaintiffs contend the maintenance of fire departments is a purely local obligation. Hence the Legislature may not authorize the use of State funds derived from State taxes to pension local firemen, some of whom are volunteers receiving no compensation for their services, some of whom are compensated from sources other than municipal taxes, and some of whom are compensated as regularly paid employees of the municipality. To use State taxes for such purpose would, they say, violate the provisions of Art. V, sec. 3, of our Constitution prohibiting the levy of taxes for other than public purposes.

To support their contention that an appropriation by the State to a fund for the retirement of firemen is not a public purpose, plaintiffs cite and rely on Commonwealth v. National Fire Ins. Co. of Hartford, 161 Va. 737, 172 S.E. 448; Aetna Fire Ins. Co. v. Jones, 78 S.C. 445, 59 S.E. 148, 13 L.R.A.,N.S., 1147; Henderson v. London & Lancashire Ins. Co., 135 Ind. 23, 34 N.E. 565, 20 L.R.A. 827; Trustees of Exempt Firemen's Fund v. Roome, 93 N.Y. 313, 45 Am.Rep. 217. Because of differing constitutional and statutory provisions, we think the cited cases are not here controlling on the question of public purpose.

Municipal corporations are specifically authorized to organize and maintain fire departments and to fix the compensation of the persons so employed. G. S. § 160-235. The organization and operation of a fire department is a governmental, not a private or proprietary function. Mabe v. Winston-Salem, 190 N.C. 486, 130 S.E. 169; Howland v. Asheville, 174 N.C. 749, 94 S.E. 524, L.R.A.1918B, 728.

A pension paid a governmental employee for long and efficient service is not an emolument which, by Art. I, sec. 7, of our Constitution, cannot be paid. To the contrary it is a deferred portion of the compensation earned for services rendered. Bridges v. Charlotte, 221 N.C. 472, 20 S.E. 2d 825; Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241, 81 A.L.R.2d 939; Hinton v. Lacy, 193 N.C. 496, 137 S.E. 669; Brumley v. Baxter, 225 N.C. 691, 36 S.E.2d 281, 162 A.L.R. 930; Bowler v. Nagel, 228 Mich. 434, 200 N.W. 258, 37 A.L.R. 1154; 70 C.J.S. Pensions § 1, p. 423; 40 Am.Jur. 961.

In fact plaintiffs concede the local community might use local tax funds to pension local employees.

'A municipal corporation, city or town, is an agency created by the State to assist in the civil government of a designated territory and the people embraced within these limits.' Smith v. Winston-Salem, 247 N.C. 349, 100 S.E.2d 835; Green v. Kitchin, 229 N.C. 450, 50 S.E.2d 545; Mabe v. Winston-Salem, supra.

No good reason has been advanced which would prohibit the State from aiding its local agent in performing its governmental function by the allocation of part of general tax revenues. Unchallenged historical practice gives approval to such use of State funds. Statutes illustrative of the policy of providing assistance to local governments from State funds are: G.S. § 105-213, directing distribution of the intangible taxes collected by the State; G.S. §§ 136-41.2, 136-41.3, directing distribution of a part of the gasoline tax to cities for the maintenance of their streets not part of the State Highway system; G.S. § 143-236.1, aiding in the construction of armories, Morgan v. Spindale, 254 N.C. 304, 118 S.E.2d 913; G.S. § 131-120, assisting in the construction of local hospitals. The State contributes to the salaries paid county farm agents and others locally employed.

The 1959 legislation, unlike the 1957 statute, does not penalize the purchaser of insurance because he chooses to buy from one insurance company rather than another. Here the tax is imposed on the insurance companies. It is merely a part of their cost of doing business. Of course the premium charged must suffice to take care of necessary expenses and provide a fair profit. But the Legislature levying privilege taxes for a permissible purpose may make reasonable classifications of those subject to the tax. Lenoir Finance Co. v. Currie, 254 N.C. 129, 118 S.E.2d 543, app. dis., 368 U.S. 289, 82 S.Ct. 375, 7 L. Ed.2d 336; Charlotte Coca-Cola Bottling Co. v. Shaw, Comr. of Revenue, 232 N.C. 307, 59 S.E.2d 819.

C. 1211 (H.B. 689) amended G.S. § 105-228.5 by inserting as the sixth paragraph from the last the following provision: 'The amounts collected on contracts of insurance applicable to fire and lightning coverage (marine and automobile policies not being included), a tax at the rate of one per cent (1%). This tax shall be in addition to all other taxes imposed by G.S. § 105-228.5; provided, that this tax shall not be levied on contracts of insurance written on property in unprotected areas.' Appellants insist that this statute is void because the proviso makes the statute so indefinite as to be unenforceable. True, there is no definition of the words 'unprotected areas.' Nonetheless we think the phrase has a wellunderstood meaning when dealing with property protected by fire insurance. In re North Carolina Fire Ins. Rating Bureau, 245 N.C. 444, 96 S.E.2d 344.

The statute does not purport to be based on benefits accruing to the insurance companies required to pay the tax. It is not, therefore, open to the objection that some who benefit from an efficient fire department are required to bear the burden without participation by others receiving equal benefits.

The reasons so far considered are not sufficient to invalidate the statutes. We are thus brought to the question on which plaintiffs place principal reliance. That question may be stated thus: May the Legislature by statute impose a tax on one group for the sole purpose of paying the...