New York Life Ins. Co. v. Robertson

• Decision Date: 19 January 1925
• Docket Number: 23918
• Citation: 103 So. 222,140 Miss. 108
• Court: Mississippi Supreme Court
• Parties: NEW YORK LIFE INS. CO. v. ROBERTSON, STATE REVENUE AGENT. [*]

103 So. 222

140 Miss. 108

NEW YORK LIFE INS. CO. v. ROBERTSON, STATE REVENUE AGENT. ^[*]

No. 23918

Supreme Court of Mississippi

January 19, 1925

Suggestion of Error Overruled March 23, 1925.

(In Banc. Suggestion of Error Overruled March 23, 1925.)

1 TAXATION. Dividends apportioned by insurer to and applied by policy holders towards payment of premiums collected held part of gross amount of premium receipts and taxable. Under section 1, chapter 203, Laws of 1916, section 31, chapter 104, Laws of 1920, imposing an annual tax on the gross amount of premium receipts of insurance companies doing business in this state, where the policies of a company provide that "dividends" which consist of a policy holder's share of the surplus remaining after deducting all expenses from the premiums collected might be applied toward payment of premiums, such "dividends" when applied by the policy holders toward payment of premiums collected should be included in the gross amount of premium receipts on which the tax due by the company is to be computed.

ON SUGGESTION OF ERROR.

2 TAXATION. Statute held to preserve right to enforce collection of taxes accruing under or by virtue of any statute repealed or affected by act. Laws 1924, chapter 132 section 29, subd. 2, held fully to preserve right to enforce collection of any taxes which accrued under or by virtue of any statute repealed or in any wise affected (Laws 1916 chapter 203, section 1, as amended by Laws 1920, chapter 104, section 31; Laws 1912, chapter 101, as amended by Laws 1914, chapter 116) by the act, and especially by section 4, and section 11, subd. 10, thereof.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Suit by Stokes V. Robertson, as State Revenue Agent, against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed by divided court.

Affirmed. Suggestion of error overruled.

Wells, Stevens & Jones, for appellants as amici curiae.

The concrete question presented for decision is what constitutes "gross premiums received" as contemplated by the quoted provisions of our statute. The tax payable by appellant was not the two and one-half per cent tax imposed by chapter 203, Laws of 1916, and was not the two per cent tax imposed by section 31, chapter 104, Laws of 1920. It was the minimum tax of one and three-fourths per centum "upon the gross premiums received by it upon the business done within the state during the year."

It was the contention of appellee in the trial court that the gross stipulated premiums, as shown on the face of all policies upon which premiums were collected in any year involved in this suit, constituted the "gross premiums received," while appellant company contends that the term "gross premiums received" means exactly what the term implies, premiums actually received.

It is manifest that the purpose of the law in question is only to tax insurance companies on a basis of premiums received and the term "gross premiums received" means all premiums actually received, and thus a standard of measure is provided by which the tax may be actually computed.

I. Statutes imposing taxes are to be strictly construed as against the state, and liberally in favor of the taxpayer. 37 Cyc. 768; U. S. v. Wigglesworth, 2 Story, 369 Fed. Cas. No. 16,690; American Net and Twine Co. v. Worthington, 141 U.S. 468, 35 F. 821, 12 S.Ct. 55; Spreckles Sugar Ref. Co. v. McClain, 192 U.S. 397, 48 L.Ed. 496, 24 S.Ct. 376.

II. Dividends applied in abatement of premiums should not be computed or taxed under the phrase "gross premiums received." Insurance Company v. Henry, 110 Miss. 402, 70 So. 452; Mutual Benefit Life Insurance Company v. Commonwealth (Kentucky), 107 S.W. 802; Mutual Benefit Life Insurance Company v. Herold, 198 F. 199, affirmed; 201 F. 918; certiorari denied; 231 U.S. 755; New York Life Insurance Co. v. Anderson, 263 F. 527, certiorari denied, May 2, 1921; also see cases of Eaton v. Conn., etc., Co., 223 F. 1022; Northwestern Mutual Life Insurance Co. v. Fink, 248 F. 568, affirmed, 267 F. 968; Commonwealth v. Pennsylvania Mutual Life Insurance Co. 97 A. 677 (1916); State ex rel. Brewster, Attorney General, v. Wilson, 172 P. 41, L. R. A. 1918 D, 955; German Alliance Ins. Co. v. Van Cleave, 191 Ill. 410, 61 N.E. 94; State, ex rel. National Life Insurance Company, v. Hyde, Superintendent (Mo.), 247 S.W. 396; Mutual Benefit Life Insurance Co. v. Richardson (1923), 219 P. 1003;

The case of Penn. Mutual Life Insurance Co. v. Henry, 100 Miss. 402, 70 So. 452, is relied on by the appellee. The case, we submit, is not an authority against the contentions of appellant, or any of the facts which we press upon the court. Two questions were presented to the court in that case, but the first, and the question which is now presented in the case at bar, is not decided.

Our own court in the Simmons case, and other cases, has declared that double taxation is to be avoided, and that no statute will be construed to manifest a legislative purpose to tax twice the same thing. Dividends declared by a mutual company, and used by the policy-holders from year to year in abatement of premiums would be doubly taxed if the contentions of appellee are sanctioned by this court. Inequalities would result as between mutuals and stock companies. In fact the privileges and immunities guaranteed to every citizen by article 4, section 2 of the Federal Constitution would be infringed. These returns are in no sense income, and should not be regarded as premiums, and therefore enter into a computation of the tax now under review. Both equity and the positive provisions of the statute are with the appellant in this case, and the court should unhesitatingly so declare.

A. H. Longino, R. B. Ricketts, and Green, Green & Potter, for appellants.

I. All prior existing laws imposing upon insurance companies excise taxes measured by the premium receipts of such companies on their Mississippi business were repealed, and without saving cause, by the enactment of chapter 132, Laws of 1924.

There will be a repeal by implication when two statutes are so repugnant and inconsistent that they cannot stand together, giving each a fair construction. Commercial Bank v. Chambers, 8 S. & M. 9. Every affirmative statute is a repeal by implication of a precedent affirmative statute to the extent that it is contrary to such former statute.

Where a later statute covers the whole subject-matter of earlier statutes and embraces new provisions and plainly shows that it was intended, not only as a substitute for the earlier statute, but to cover the whole subject and to prescribe the only rules in respect thereto, it repeals all former statutes on the subject. Ascher v. Moyse, 101 Miss. 36, 25 R. C. L. (Statutes, page 915, sec. 167); Knox, Attorney-General, v. Wyoming Manufacturing Co., 138 Miss. 249, 103 So. 11.

As in the case of the statutes under examination in the case of Knoz v. Wyoming, etc, there is in our case a new statute clearly covering the same subject-matter dealt with by the statutes under which are supposed to have arisen the claims for which the revenue agent has sued. This court has announced again the rule which we contend for as correct. We submit that our case comes clearly within the rule so laid down and that there has been a complete repeal, without any saving clause, of the statutes under which suit has been brought against the appellant.

Let us now apply the rule to the instant case. First, it is clear that chapter 132, Laws of 1924, is intended to cover the same subject-matter as the laws upon which this suit is founded. Both the Act of 1924 and the laws imposing the taxes sought to be collected in the present suit are of one class--excise laws. The taxes imposed by them are clearly of the same kind--excise taxes.

For a general definition of the term excise tax and a statement as to what taxes are included within the term we refer the court to 29 R. C. L. 236 (Taxation, sec. 209); Henry, Ins. Commr., v. Alexander, 94 So. 846 at 848; Hattiesburg Gro. Co. v. Robertson, 88 So. 4.

It may be contended that the tax imposed by the Law of 1924 is merely an additional tax. If so, it is an additional tax of exactly the same kind as the former taxes and one that is measured upon or by exactly the same thing. One act may say that the tax is to be measured by "gross premiums received" and the other act may say that the tax is to be measured by or based on "income" but that can make no difference. If the premiums received by the appellant on its Mississippi business are incomes now under the new law, they constituted income under the former laws. The name is changed but the thing itself remains the same. To attempt to treat the acts as concurrent would involve the court in upholding a case of double taxation. This court has clearly held in the case of Panola Co. v. Carrier, 92 Miss. 148, that double taxation will not be allowed. To hold that the former laws are still in force--laws that imposed taxes of the same kind (excise) and measured by the same sort of income (gross premium receipts or income)--would be nothing else than an approval of double taxation.

The Act of 1924 contains no saving clause as to pending suits or existing liabilities. The result is that the pending suit must fail. There is, again, no reason for going abroad for authority. This court has made the rule absolutely clear. Crow v. Cartledge, 99 Miss. 281 (283).

There is another reason why this court will be slow to hold that the Act of 1922 and the Act of 1924 impose concurrent taxes. This court has held that laws imposing privilege taxes approximate an abridgment of the liberty of the citizen guaranteed to him by the Fourteenth...