Opinion
No. 31808.
March 16, 1936.
1. STATUTES.
Particular terms of statute dealing with special subject control over general statutes dealing with subject in general.
2. INSURANCE.
Where statute provided that mutual insurance company should pay premium tax in lieu of all licenses and taxes except ad valorem taxes on realty, mutual company held not liable for privilege tax authorized by general statute (Code 1930, secs. 5289, 5290; Laws 1930, chap. 88, sec. 103 (a)).
3. INSURANCE.
Statute relating to collection of privilege and premium taxes from insurance companies providing that section covering premium taxes should apply to mutual insurance companies held to authorize collection of privilege tax from mutual company, notwithstanding prior statute providing for payment of premium tax by mutual companies in lieu of other taxes (Code 1930, secs. 5289, 5290; Laws 1932, chap. 89, secs. 111 (a), 111 (b)).
ETHRIDGE, J., and SMITH, C.J., dissenting in part.
ON SUGGESTION OF ERROR. (In Banc. June 1, 1936.) [168 So. 609. No. 31808.]1. EVIDENCE.
Office of Insurance Commissioner is a co-ordinate branch of the state government, and courts will take judicial notice of its records and contents thereof.
2. CONSTITUTIONAL LAW.
Where there was no domestic mutual casualty insurance company licensed and doing business of such character in the state, foreign mutual casualty insurance company admitted into and doing such business in state could not question constitutionality of statute imposing tax on foreign, but not on domestic, mutual casualty insurance companies on ground statute violated equal protection clause of Federal Constitution (Laws 1932, chap. 89, secs. 111, 111 (a), 111 (b); Const. U.S. Amend. 14).
APPEAL from circuit court of Hinds county. HON. J.P. ALEXANDER, Judge.
Lotterhos Travis, of Jackson, for appellant.
The question of whether or not the tax is due for the years beginning March 1, 1929 and March 1, 1930, depends upon the effect of the following statutes:
Laws of 1918, chapter 157, sections 16, 18, 19; chapter 118, Laws of 1926.
The question whether the tax is due for the years beginning March 1, 1931, and March 1, 1932, depends upon the following statutes: Article 15 of chapter 127, Code of 1930, governing mutual insurance companies, which statute as a part of the Code of 1930 was adopted May 19, 1930, and was effective as of November 1, 1930.
Section 5287, Article 15, chapter 127, Code of 1930; section 16, chapter 157, Laws of 1918; section 5289, Article 15, chapter 127, Code of 1930; section 18, chapter 157, Laws of 1918; section 5290, Article 15, chapter 127, Code of 1930; chapter 88, Laws of 1930, sections 1, 103, 103 (a) and 103 (b).
The question whether the tax is due for the years beginning March 1, 1933 and 1934, depends upon the effect of the following statutes:
Sections 5287, 5289 and 5290, Code of 1930; sections 111, 111 (a) and 111 (b), chapter 89, Laws of 1932.
The decision of the court below holding that mutual casualty insurance companies are not required to pay the annual license tax follows the same construction of the statute which was adopted in the opinion rendered by the attorney-general on April 7, 1932, and which is exhibited with the defendant's plea. This opinion recognizes that the taxing statute taken alone appears to impose a privilege tax upon all insurance companies including mutual companies, but the opinion proceeds to construe section 3289 of the Code of 1930 on the theory that the taxing statute is a general law and the said code section is a special law. The opinion states that in case of apparent conflict the special provisions will prevail over the general provisions; and then states that since laws imposing privilege taxes must be liberally construed in favor of the taxpayer and strictly against the claim of the state, and since there was some doubt in the mind of the writer of the opinion as to whether or not a mutual casualty company should pay a privilege tax, therefore, that it was the duty of the attorney-general to resolve the doubt in favor of the alleged taxpayer. For that reason the opinion concluded that mutual casualty companies were not required to pay the privilege tax.
When the applicable statutes are carefully analyzed we think the apparent conflict disappears; however, if there is any doubt existing we submit that the rule to be applied is the doctrine that in case of an exemption from taxation the exemption statute is to be strictly construed against the exemption.
Jackson Fertilizer Co. v. Stone, 162 So. 170.
Section 18 of the Act of 1918 says that mutual companies, whether foreign or domestic, shall not be subject to any other law of this state governing insurance companies "except as provided herein, or as such companies may be hereafter expressly designated in any other law." The words "except as provided herein" necessarily refer to said section 16. Hence, with the exception of the tax laws (and certain others mentioned in section 16) foreign mutual companies are not subject to general insurance laws unless expressly mentioned. But as to all tax laws, they are subject thereto without being expressly mentioned, except to the extent that the lieu provision of section 19 protects them. From this it follows that section 134 of the Act of 1926 is binding on the appellee, and imposes a license tax and a premium tax, which are in substitution for the lieu tax of said section 19.
It will be noted that section 16 is specific as to foreign mutual companies, while section 18 applies to both foreign and domestic mutual companies. Applying the doctrine of White v. Lowry, 162 Miss. 751, 139 So. 874, the particular provision applying to foreign companies will be superior to the general provision applying to both foreign and domestic, especially where the general provision contained in section 18 is in the nature of a broad exemption.
The statute of 1926 not being doubtful or ambiguous on its face, the appellee cannot create a doubt by reference to the prior statute of 1918.
59 C.J., Statutes, section 619.
It is possible that the Legislature, in reenacting the provisions of the Law of 1918 in the Code of 1930, renewed the exemption which mutual insurance companies had enjoyed prior to the privilege tax statute of 1926, but we submit to the court that any doubt as to the existence of this exemption should be resolved in favor of the state. It is to be noted that the privilege tax statute all the way through applies to all foreign insurance companies which would include both mutual and stock companies, whereas, the so-called exemption contained in the chapter on mutual insurance companies applies to all mutual companies whether foreign or domestic. Hence, it may reasonably be considered that the Legislature, in enacting the various statutes of 1930, intended to continue the exemption as to domestic mutual insurance companies, but intended for the exemption not to apply as to foreign mutual companies, which should be treated in like manner as foreign stock companies.
For the tax years beginning in 1933 and 1934, there can be no doubt that the appellee is required to pay the annual license tax and that the plea filed does not constitute a defense.
Chapter 89, Laws of 1932.
We submit that under this express language of the Act of 1932 the appellee is liable to the payment of an annual license tax of three hundred fifty dollars, plus damages. It is inescapable that this was the intention of the Legislature and that the tax must be paid.
Leon F. Hendrick, of Jackson, and Eugene Quay, of Chicago, Ill., for appellee.
The mutual insurance companies Act of 1918, chapter 157, Laws of 1918, as shown both by its title and by the scope of the sections composing the act, was designed to bring together in one statute the whole law of the state of Mississippi on the organization, admission, regulation and taxation of mutual insurance companies. It replaced a statute (Laws of 1912, chapter 171) which covered the whole subject of mutual insurance companies except their taxation, and so demonstrated in a striking way the purpose to take these companies out of the operation of general taxing laws. This special act of its nature deals with matters which, as to others than the single class or group with which it is concerned, are to be found in a great variety of general laws. Such a statute is complete in itself and no principle of construction is better settled than that general language contained in other statutes, prior or subsequent, and which would otherwise include the subject of the particular legislation as well as others, must be interpreted with reference to that particular statute, and the general language of other acts taken as applying to all except those for which the more special provisions has been made in the particular act. The special act is not repealed or affected in any way by an act of general character and language unless the latter makes a specific reference to it.
1 Lewis' Sutherland, Stat. Constr. Secs. 274 and 275.
A comprehensive general act, covering the whole subject of special assessments and containing no express exemptions or limitations as to any properties or classes of property, must be construed as applying only to all properties other than those exempted by an earlier special act.
Dist. of Columbia v. Sisters of Visitation, 15 D.C. App. 300; Vickler v. Union Bank Trust Co., 104 Tenn. 277, 57 S.W. 341.
What has been said would seem to apply with particular force where the latter general statute does not represent an entirely new legislative design nor the setting up of a new system. The system of taxes which has been in a sense codified in the Privilege Tax Acts of 1930, 1932 and 1934, and to a large extent the particular taxes found therein, go back at least to the Code of 1906, and doubtless to a much earlier date than that. It will be noticed that these earlier laws (Code of 1906, Laws of 1912, Laws of 1916, and Laws of 1918) made no distinction between stock and mutual insurance companies, although the earlier mutual insurance companies Act of 1912 was passed at the same session which revised the Code of 1906 as to taxation of insurance companies. The mutual insurance companies Act of 1918 (Laws of 1918, chapter 157), therefore, definitely carved out a particular group or class from the whole body of companies taxable under those acts, and removed from the operation of those acts this class of mutual companies which would be clearly taxable under the general language of those taxing acts had they stood alone. The taxing acts continue to operate as to all companies not specifically taken out of their scope by the mutual companies Act of 1918, but without any application to the latter companies. Subsequent reenactment, amendment or revision of those taxing acts in the same general form as the earlier ones can have no different or greater effect in this respect than the earlier acts unless, and to the extent that, the mutual companies act, or one or more of the companies with which it is concerned, be specifically mentioned in the later taxing act. This was recognized in the drafting of Laws of 1930, chapter 88, section 103, which in the same schedule imposes a tax "upon fire insurance companies or associations, $200.00" and "upon mutual fire insurance companies or associations, $100.00." The single group, mutual fire insurance companies, which the Legislature sought to remove from the operation of section 19 of Laws of 1918, chapter 157, is specifically and definitely named in section 103 of the Privilege Tax Act of 1930, and also of 1932 and 1934, sections 111 (a) and 114, respectively.
From 1918 to this date there has been a uniform administrative construction which limited the operation of the general taxing acts to companies not embraced by the mutual insurance companies Act of 1918. "This after the lapse of time, without change of that construction by legislation or judicial decisions, has been declared to be generally the best construction. . . . The construction under such circumstances becomes established law." (1 Sutherland, sec. 472). When the law so construed by the administrative officers charged with its execution is later reenacted without essential change, the legislative adoption of that construction is well nigh conclusive. (2 Sutherland, sec. 403, and see U.S. v. Cerecedos Hermanos y Ca., 209 U.S. 337, 52 L.Ed. 821, approval April 1931 in Burnet v. Thompson Oil Gas Co., 283 U.S. 75 L.Ed. 483). The Insurance Commissioner obtained a ruling from the Attorney General holding mutual casualty companies not liable for privilege taxes.
The imposition in express terms of a privilege tax upon mutual fire insurance companies by section 103 of the Privilege Tax Act of 1930, and the Privilege Tax Acts of 1932 and 1934, if valid, constitute a repeal or amendment of Section 19 of the mutual insurance companies Act of 1918 as to mutual fire companies and as to mutual fire companies alone.
"Subsequent legislation repeals previous inconsistent legislation whether it expressly declares such repeal or not. . . . The intention to repeal, however, will not be presumed, nor the effect of repeal admitted, unless the inconsistency is unavoidable, and only to the extent of the repugnance." (Sutherland, sec. 247.) Moreover every effort must be made to eliminate or minimize by construction any possible contradiction between enactments of the same session of the Legislature, as in our case the enactment of the Privilege Tax Act of 1930 and subsequent acts, and the reenactment of the mutual insurance companies act of 1918, including section 19, in the Code of 1930, sections 5269 to 5290, inclusive.
White v. Meadville, 177 Pa. St. 643, 35 A. 695, 34 L.R.A. 567.
Statutes imposing privilege taxes should be strictly construed as against the state or taxing power and in favor of the taxpayer, and are never to be construed as imposing burdens upon doubtful interpretation.
State ex rel. Collins v. Grenada Cotton Compress Co., 85 So. 137; Sperry Hutchinson v. Harbison, 86 So. 455; Middleton v. Lincoln County, 84 So. 907.
Laws are to be construed favorably to the citizen and no occupation is to be taxed unless clearly within the provision of such laws.
62 Miss. 105; 93 Miss. 767.
By an examination of the foregoing statutes it will be seen that no where does the Legislature even attempt to place a privilege tax on mutual casualty companies. They do have to pay ad valorem taxes on such real estate that they might own, a tax on their premium receipts, a charter or filing statement fee, an annual filing statement fee, an annual publication fee, and an additional premium tax for the fire marshall's department.
Chapter 88, Laws of 1930, was enacted during the calendar year of 1930 and after respondent and all other mutual fire and casualty companies doing business in the state had been licensed for the year ending October 31, 1930. This act if applicable to these companies cannot be given a retroactive effect.
Hanover Fire Ins. Co. v. Carr, 272 U.S. 494, 71 L.Ed. 372, 49 A.L.R. 713.
Even were it held that Laws of 1930, chapter 88, was not repealed insofar as it conflicted with the Code of 1930, it would be invalid insofar as it might attempt to levy a new tax upon foreign mutual companies, because of the exemption of domestic mutual companies contained in section 3 of that act.
Hanover Fire Ins. Co. v. Carr, 272 U.S. 494, 71 L.Ed. 372, 49 A.L.R. 713.
Argued orally by Fred Lotterhos, for appellant, and by Leon F. Hendrick, for appellee.
Appellee is a mutual casualty company admitted to do business in this state. It has never paid a privilege license tax, although regularly having paid its premium taxes. Appellant sued for the privilege license taxes for the years 1929 to 1934, inclusive, but the trial court dismissed the suit.
Under chapter 157, Laws 1918, mutual insurance companies were fully dealt with and set apart into and under a separate and special law, and section 18 of the act expressly so provided. This chapter, without substantial change, was re-enacted as article 15, c. 127, Code 1930 (section 5269 et seq.) and the particular section above mentioned was brought forward as section 5289, Code 1930.
In the original act, section 19, brought forward as section 5290, Code 1930, and thus kept in full effect until 1932, there was this provision in respect to mutual companies: "Such mutual insurance companies shall pay into the state treasury through the commissioner of insurance in lieu of all licenses and taxes, state, county, municipal and levee board, except ad valorem taxes on such real estate as may be owned by the company the following fees: Two and one-half per centum upon its premium receipts," etc. There could hardly be any broader language than that used, to-wit: "In lieu of all licenses and taxes, state, county, municipal and levee board, except ad valorem." And since this is a special and particular statute dealing with a special or particular branch of the insurance field, its particular terms, as to the special subject, control over general statutes dealing with the subject in general. Greaves v. Hinds County, 166 Miss. 89, 99, 145 So. 900.
But by the concluding sentence of section 111 (b), c. 89, Laws 1932, the general schedule of premium taxes therein laid upon insurance companies was for the first time made expressly to apply to mutual companies, so that thereupon for the first time any taxation distinction between mutual companies and others was put aside; and since the language of the preceding section, section 111 (a), is broad enough to cover mutual companies, and since there was left no existing special provision by which we can consistently withhold mutual companies from that general section, we must declare that the appellee is liable for the privilege tax of the years under the Laws of 1932, but not theretofore (Laws 1930, c. 88, sec. 103 (a).
Affirmed in part, reversed in part, and remanded.
Upon consideration of the suggestion of error, the court requested briefs on this question: When a foreign casualty insurance company has been admitted into and is doing business in a state, does a statute thereafter enacted, imposing a tax on foreign casualty insurance companies but not on domestic casualty insurance companies, violate the equal protection clause of the Fourteenth Amendment to the Federal Constitution, as applied to foreign casualty insurance companies then doing business in the state? The request has been complied with.
In the original opinion appellee was held liable for the annual privilege license tax under chapter 89, Laws 1932. The statute (section 111) imposes an annual license tax on all foreign insurance companies of every kind doing business in this state, and expressly exempts from such license tax domestic insurance companies and burial associations. In section 111 (a) the schedule of licenses is set out, ranging from twenty-five dollars to two hundred dollars. The last paragraph of section 111 (b) provides that the statute shall apply to mutual and reciprocal insurance companies or associations. Therefore, beginning with the effective date of chapter 89, Laws 1932, foreign insurance companies are required to pay an annual privilege tax, while domestic insurance companies are exempt therefrom, and this provision applies to all mutual, including mutual casualty, companies.
It is argued that this inequality between foreign and domestic casualty companies denies to appellee the equal protection of the laws guaranteed by the Fourteenth Amendment to the Federal Constitution. To sustain that position appellee mainly relies on Hanover Fire Ins. Co. v. Carr, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed. 372, 49 A.L.R. 713. It was held in that case (headnote 1) that: "A foreign insurance company is unconstitutionally denied the equal protection of the laws, by imposing upon it a tax upon the full amount of its net receipts at the rate to which other personal property is subject, where the tax is not imposed upon domestic corporations, and personal property is assessed at only a small percentage of its value."
We do not decide this question; we do not reach it, because appellee is not in a position to raise it. We have not now, nor have we had during the period in question, any domestic mutual casualty insurance company licensed and doing business of that character in the state. The Old Colony Mutual Insurance Company, a domestic corporation, is authorized by its charter to do that character of business but has never applied for and secured a license for that purpose; furthermore, this company was only organized in January of the present year. Those facts are shown by the records in the office of the Insurance Commissioner. The office of Insurance Commissioner is a co-ordinate branch of the state government. The courts take judicial notice of its records and the contents thereof. Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692; Swann v. Buck, 40 Miss. 268; Witherspoon v. State, 138 Miss. 310, 103 So. 134.
Appellee, therefore, has been, and is now, without a domestic competitor in this state. One who is not prejudiced by the enforcement of an act of the Legislature cannot question its constitutionality or obtain a decision as to its validity on the ground that it impairs the rights of others; it must be his rights that are impaired. 6 R.C.L. sec. 87, p. 89; Brown v. Smart, 145 U.S. 454, 12 S.Ct. 958, 36 L.Ed. 773; Red River Valley Nat. Bank v. Craig, 181 U.S. 548, 21 S.Ct. 703, 45 L.Ed. 994; Hooker v. Burr, 194 U.S. 415, 24 S.Ct. 706, 48 L.Ed. 1046; Dunn v. Love, 172 Miss. 342, 359, 155 So. 331, 92 A.L.R. 1323, and New Orleans, M. C.R. Co. v. State, 110 Miss. 290, 305, 70 So. 355, 360. In the latter case, in discussing this question the court used this language: "One must be hurt before he complains."
Suggestion of error overruled.
I concur in that part of the majority opinion which allows a recovery from the year 1932 to the date of the suit; but I dissent from the holding that amounts prior to 1932 cannot be recovered. I take it that but for section 5289, Code of 1930, the appellant could recover for each of the years sued for. I do not understand the majority to hold that the recovery could not be had in the absence of a section like 5289, which reads as follows: "Except as provided herein, or as such companies may be hereafter expressly designated in any other law by express use of the word or description 'mutual,' no insurance companies organized or admitted to do business in this state under this article shall be subject to any other law of this state governing insurance companies." This section of the Code was brought forward from chapter 157, Laws 1918.
I do not think the section should be construed so as to prevent future laws enacted on the same subject from applying, under the ordinary rules of construction, to the subject-matter; and that the last law will be given full effect when its terms are inconsistent with the act, or when the language used, given its usual and ordinary meaning under the rules of construction, embraces the taxes here involved. The act should be construed only to take the mutual companies out of the operation of statutes then existing, and should not be applied so as to divert the state's revenue laws enacted subsequent to the enactment of that statute. To construe it as has been done by the majority opinion, in my judgment, puts a limitation or restriction on a future legislature, or on future legislation. This, I think, is clearly beyond the power of the Legislature. It is not a case of a legislature passing a law defining words, which definition may be applied to future laws, but it is a statute concealed in the great body of the laws designed for the purpose of giving a special class of insurance companies privileges and immunities not enjoyed by other companies doing a like business; and it is familiar knowledge that one legislature cannot bind future legislatures. In construing enactments passed after the said section was enacted, the court must give to the new law the full force and effect of the language used, giving to that language its natural and proper meaning.
In Stingily v. City of Jackson, 140 Miss. 19, 104 So. 465, it was held that a provision of a statute, if it was clear and unambiguous, "will be enforced although it conflicts with one of the provisions of a prior statute, and the later statute not only contains neither a special nor a general repealing clause, but expressly provides that it 'shall not repeal any other statute relating to the subject-matter hereof.'"
In the case of Musgrove v. Vicksburg Nashville R. Co., 50 Miss. 677, it was held that "the legislature has plenary power to enact laws or repeal them, unless prohibited expressly or by implication by the state or federal constitution. The power to repeal a law is as complete and full as the power to enact it. The repeal of a statute terminates all proceedings under it, unless rights have accrued which cannot be divested." This case is cited with approval in French v. State ex rel. Felding, 53 Miss. 651, 653, and Bradstreet Co. v. Jackson, 81 Miss. 233, 236, 32 So. 999.
In 12 C.J., page 806, sec. 238 (Constitutional Law), it is said: "The power to amend and repeal legislation as well as to enact it is also vested in the legislature, and a legislature cannot restrict or limit its right to exercise this power by prescribing modes of procedure for the repeal or amendment of statutes; nor may one legislature restrict or limit the power of its successors."
In 59 C.J. 900, sec. 501, subtitle Modes of Repeal, it is said: "In the absence of any constitutional restraint, a state legislature may exercise the power of repeal in any form in which it can give a clear expression of its will. There are two ways of repealing a statute or part thereof; one is by express terms, the other is by necessary implication. While ordinarily the legislature may be expected to employ express terms to give effect to its intent to repeal a statute, it is under no obligation to do so, and in a proper case a repeal may be effected by implication. The question of repeal is one of intent, and must be solved by determining as near as may be the intent of the legislature."
In 59 C.J. 900, sec. 502, title Statutes, it is said: "An express repeal is the abrogation or annullment of a previously existing law by the enactment of a subsequent statute which declares that the former law shall be revoked and abrogated. A statute, or portion thereof, may be repealed directly by an express provision or declaration in a subsequent statute, provided the repealing statute conforms to the procedure prescribed by the constitution of the state. However, an express repeal has no more force and effect than an implied repeal. Also a clause in a statute purporting to repeal other statutes is subject to the same rules of interpretation as other enactments, and the intent must prevail over literal interpretation. Even words of absolute repeal may be qualified by the intention manifested in other parts of the same act; and, according to some authorities, an express declaration that a particular statute is repealed will not be given effect, where it is apparent that the legislature did not so intend; but according to other authorities, where a statute is specifically repealed a court will not inquire whether the legislature intended its repeal."
At page 904 of the same volume, section 508, it is said: "An implied repeal is one which takes place when a new law contains provisions which are contrary to, but do not expressly repeal, those of a former law. A statute, or a provision thereof, may be repealed by implication. Whether it has been so repealed is a question of legislative intent. While such a repeal is not favored, nevertheless it must be recognized and accorded effect where it is apparent that it was intended. Conversely, there is no room for repeal by implication where no legislative intent to repeal is indicated or expressed or an intent not to repeal is apparent or manifest. It has been held that repeals of statutes by implication are not to be worked piecemeal; but as hereinafter shown, repugnancy may effect an implied repeal only pro tanto to the extent of the repugnancy."
In Hart v. Backstrom, 148 Miss. 13, 113 So. 898, it was held that "Statutes which amend other statutes by implication are not within this provision [section 61, Constitution]; and it is not essential that they even refer to acts or sections which by implication they amend." At page 34 of this Mississippi Report of this case, at page 901 of 113 So., the court said: "We think chapter 231 of the Laws of 1920, although amendatory of section 2933, Code of 1906 (section 5268, Hemingway's Code), is a complete scheme within itself, so far as the subject of legislation therein treated is concerned. It provides, in substance, that no reports of tax sales of land purchased by the state or individuals shall be made to the land commissioner until after the expiration of two years from the date of sale, or time allowed for redemption shall have expired; that all redemptions shall be attended to by the clerks of the chancery courts of the respective counties, and the sums received therefor paid into the county treasury, and disposed of as now provided by law; that, after a period of two years' time from the date of such sales, it shall be the duty of the chancery clerk to report all sales made of state lands which have not been redeemed, to the state land commissioner, to be dealt with as now provided by law."
It was held that the statute there involved repealed a former statute by implication.
In State ex rel. Knox, Atty. Gen., v. Wyoming Mfg. Co., 138 Miss. 249, 103 So. 11, it was held in the third paragraph of the syllabus, "Where the Legislature in a later act covers the entire scheme dealt with in former acts, the former act will be repealed by the later act, although there is some difference in the provisions of the two statutes. A subsequent statute not repugnant in its provisions to the former one, but clearly intended to prescribe the only rule in the case provided for, repeals the former statute. Mobile O.R. Co. v. Weiner, 49 Miss. 725, 739."
To the same effect is Bell v. State, 118 Miss. 140, 79 So. 85; Vicksburg v. Sun Mutual Ins. Co., 72 Miss. 67, 16 So. 257; Ascher Baxter v. Edward Moyse Co., 101 Miss. 36, 57 So. 299; Board of Sup'rs of Clay County v. Board of Sup'rs of Chickasaw County, 64 Miss. 534, 1 So. 753; Mobile O.R. Co. v. Weiner, 49 Miss. 725; Myers v. Marshall County, 55 Miss. 344; Plummer v. Plummer et al., 37 Miss. 185; Commercial Bank of Natchez v. Chambers et al., 8 Smedes M. (Miss.) 9; Gibbons et al. v. Brittenum et al., 56 Miss. 232.
Measured by this rule, even if section 5289 was applicable to privilege taxes, it was repealed by implication by chapter 118, Laws 1926, section 134. It was brought forward in the Code by section 5289, but at the same session of the Legislature of 1930 there was enacted chapter 88, sections 103, 103a, and 103b, which imposed the tax here sought to be collected, and in which act the language is clear and unambiguous.
The majority opinion proceeds upon the idea that the Code section prevailed over this act of 1930; but it appears to me that it was not intended to be affected or repealed by the Code section. Section 15 of the act (Laws 1930, c. 210) adopting the Code provides: "The Mississippi Code of 1930 shall take effect and be in force from and after the first day of November, 1930, and all laws of a general character not brought forward or embodied in said Code, except laws granting exemptions from taxation for a period of years, shall be thereafter repealed; but this shall not apply to any act of the present legislature which is not incorporated in said code."
It is plain, therefore, that the Act of 1930, referred to, is not repealed, and must be given its natural legal effect measured by the language used by the Legislature therein.
Section 8 of the act adopting the Code provides: "There shall be printed with the Mississippi Code of 1930 the laws of a general nature passed by the regular 1930 session of the legislature inserted in the proper places, the index thereto, suitable cross references, the annotations and historical notes, this act of adoption, the constitution of the United States, with the amendments, and index thereto, the constitution of the state of Mississippi, with the amendments and index thereto. . . . Said matters to be inserted in said code in the order in which the same now appear in the Dummy Code, or as herein provided, or as the person appointed to supervise the publication of said code, or the attorney general, may direct. The title page of said code shall be in words and figures the same as that of the Dummy Code."
Section 13 of the act provides: "The acts of the legislature passed at this session shall take effect and be in force as prescribed in each of said acts, whether or not the same are inserted in this code, except as may be otherwise provided in said acts, and shall be printed in the session acts of this year."
It is manifest from these provisions that the privilege tax acts of 1930, above mentioned, were to remain in force and effect, and were not to be affected by section 5289, which deals solely, in my opinion, with the general insurance laws, as indicated in the original act, and not with the levying of privilege taxes for doing business in the state. Statutes such as section 5289 should be restricted by construction to the general purpose indicated by the act, and not extended to all laws that might affect such causes. The design of the Legislature in enacting chapter 157, Laws 1918, was to provide a scheme of supervision, and admission to do business in the state, and was not to affect the state's revenue acts thereafter provided.
Pursuing the same course of reasoning contended for and adopted by the majority opinion, such insurance companies would become the beneficiary of any legislative oversight in amending the insurance laws, or any laws that might directly or indirectly affect mutual insurance companies. The statute is contrary to the principles, at least, of section 87 of the Constitution, prohibiting the suspension of general laws for the benefit of individuals and corporations. It is unjust and unfair to permit such concealed exemptions and exceptions, hidden in the body of the voluminous statutes of the state, to give them special favors. There are seven thousand three hundred sixty-eight separate statutes in the Codes, and it is manifest that members of the Legislature cannot have them all constantly in mind in passing upon legislation. The equal protection of the law, and the bearing equally the burdens of government, are favored processes of the law. I therefore think that section 5289 has no effect to exempt the appellee from the taxes involved in this suit.
I am of the opinion that the appellee is liable for the privilege taxes here in question for the years 1929 and 1930 and for the years 1933 and 1934, but I am in doubt as to whether it is liable for such taxes for the years 1931 and 1932.