Aetna Life Ins. v. Coulter

115 Ky. 787

Opinion

Opinion op the coukt by

JUDGE HOBSON

Reversing.

Appellants are foreign life insurance companies doing business in this State. They filed these suits to restrain the board of valuation and assessment from proceeding to assess them for franchise tax for the year 1901, or retro spectively for the previous years since November 11, 1898, under section 4077, Ky. St. 1899, on the ground that such companies are not included in the statute. This is the only question to be determined. The circuit court dismissed their petition.

The statute is in these words: “Every railway company or corporation, and every incorporated bank, trust company, guarantee or security company, gas company, water company, ferry company, bridge company, street railway company, express company, electric light company, electric power company, telegraph company, press dispatch company, telephone company, turnpike company, palace-car company, dining-car company, sleeping-car company, chair-car company, and every other like company, corporation or association, also every other corporation, company or association, having or exercising any special or exclusive privilege or franchise not allowed by law to natural persons, or performing any public service, shall, in addition to the other taxes imposed on it by law, annually pay a tax on its franchise to the State, and a local tax thereon to the county, incorporated city, town and taxing district, where its franchise may be exercised. The auditor, treasurer and secretary of State are hereby constituted a board of valuation and assessment, for fixing the value of said franchise, except as to turnpike companies, which are provided for in section four thousand and ninety-five of this article, the place or places where such local taxes are to be paid by other corporations on their franchise, and how apportioned, where more than one jurisdiction is entitled to a share of such tax, shall be determined by the board of valuation and assessment, and for the discharge of such other duties as may be imposed on them by this act. The auditor shall be chairman of said board, and shall convene the same from time to time, as the business of the board may require.”

In Louisville Tobacco Warehouse Co. v. Commonwealth, 106 Ky., 165, 20 R., 1047, 49 S. W, 1069, 57 L. R. A., 33, the statute was construed and was held not to embrace private trading corporations not Laving or exercising any special or exclusive privilege or franchise not allowed by law to natural persons, or performing any public service. To this conclusion we adhere. The statute names 20 classes of corporations, and then adds, “and every other like company, corporation or association,” thus showing that the Legislature had in mind that other unlike companies, corporations or associations were not included; and that these words were not intended to cover all corporations is further shown by the next words of the section: “Also every other corporation, company or association having or exercising any special or exclusive privilege or franchise not allowed by law to natural persons or performing any public service.” These words show that other companies not having or exercising any special or exclusive privilege or franchise not allowed by law to natural persons, or performing any public service, and not included in the preceding words of the section, were not intended to be embraced by it. It follows that the section was not intended to embrace all corporation but only the 20 classes named, and every other like corporation and every other corporation having or exercising any special or exclusive privilege or franchise not allowed by law to natural persons, or performing any public service. The reasons for this conclusion are elaborated in the case referred to.

It remains to determine whether insurance companies are embraced by the words, “guaranty or security company,” or, “every other like company,” or “every other corporation, company or association having or exercising any special or exclusive privilege or franchise not allowed by law to natural persons, or performing any public service,” or by all of these expressions taken together. In construing a statute, the purpose is to effectuate the intention of the Legislature; and to do this, where the words of the statute are not clear, the court may look to the course of legislation and the object aimed at. Section 245 of the Constitution provided that upon its promulgation the Governor should appoint three persons learned in the law as commissioners to revise the-statute laws- of the State, so as to conform them to the Constitution and effectuate its provisions. This commission was appointed, and reported to the Legislature a series of acts for this'purpose —among others, an act regulating private' corporations (chapter 32, sections 538-883a, Ky. St. 1899), and an act in regard to revenue and taxation (chapter 108, sections 4019-4281, Ky. St. 1899), of which section 4077 is a part. These acts are the work of the same Legislature, enacted pursuant to the constitutional provision; and, in determining the meaning of either, it is proper to look to the other acts of that Assembly, without regard to the date at which either act was passed, for the Assembly had before it the revision of the laws of the State. In the act on corporations, an insurance bureau is created, and more than 100 sections of the act are taken up with the subject of insurance. Ky. St. 1899, sections 617-762. The Legislature therefore did not overlook the subject of insurance, and when it named in section 4077, 20 classes of corporations, many of them of much less consequence or capital than insurance companies, the presumption must be that the omission to name insurance companies in section 4077 was not accidental. This conclusion is fortified by the fact that in sections 4227 and 4231 a tax on the receipts of these companies is provided for in the same act. There was no tax on foreign insurance companies in this State previous to the act of March 11, 1843 (Laws 1842-43, p, 87, c. 373). By that all agents representing foreign insurance companies were required to furnish to the auditor a correct list of premiums, verified by oath, and pay the sum of $2.50 on every $100 of premiums received, and in section 7 the principals of the agents were made liable for the tax. Substantially the same provision was carried into the Revised Statutes. 2 Stanton’s Rev. St., p. 246. The law thus remained until the year 1864, when the rate was increased to $5. Myers’ Supp. p. 410; Phoenix Ins. Co. v. Commonwealth, 68 Ky., 80, 96 Am. Dec., 331. In 1870, when the Insurance Bureau was established, the rate was cut down to $2.50, and it thus remained until the act in question was passed. Thus for something like a half century the State had observed a uniform course in the taxation of foreign life insurance companies, and this policy is continued in section 4227, Ky. St., 1899. While the State may impose a tax on premiums, and also a franchise tax, double taxation is not to- be inferred from doubtful words; and, when the legislative policy of the State had so long been followed, we are persuaded, if a change had been intended, it would have been clearly signified. This construction of the statute has been adopted by the executive officers of the State since the passage of the act in contest, until the year 1901, and some force must be given to this contemporaneous construction. The last General Assembly also revised the laws regulating revenue and taxation, making no change in the statute, which had thus been construed by the officers of the State for eight years.

An insurance company is not a guaranty or security company, within the ordinary meaning of that term. What the Legislature meant by guaranty or security company is shown by section 723, Ky. St. 1899, and is such a corporation as may become surety for another; and the reason for its inclusion in the section is that by the statute it may become sole surety in all cases where by law two or more sureties are required, thus having the special privilege not allowed by law to natural persons. An insurance company is not like a guaranty or, security company. It exercises no special or exclusive privilege not allowed by law to natural persons. At common law private persons can make contracts of insurance (21 Am. & Eng. Ency. of Law, 255; Kerr on Insurance, 2021; May on Insurance, section 35); and this common-law right is recognized by section 641, Ky. St. 1899. In determining the meaning of the word “like,” in this section, we must follow the rule ruoscitur a sooiis. All- the 20 named corporations have .special or exclusive privileges or franchises, not allowed by law to natural persons. The word “like” must be read not only in connection with the preceding words, but with the following clause. - The like-mess which the Legislature had in mind is in having or exercising. some special or exclusive privilege or franchise, not allowed by law to natural persons, or performing some public service. In Levi v. Louisville, 97 Ky., 405, 16 R., 872, 30 S. W., 976, 28 L. R. A., 480, this court said that the board of valuation was created “to value every and all corporations, associations or companies having or exercising any exclusive privilege or franchise not allowed by law to natural persons.” And in Board of Councilmen of City of Frankfort v. Stone, 108 Ky., 400, 22 R., 502, 56 S. W., 679, the court said: “The franchise primarily in view under section 4077 is any special or exclusive privilege not allowed by law to natural persons.” In the interpretation of all statutes levying taxes, a cardinal rule is that their provisions are never extended by implication beyond the fair meaning of the terms used, and in every case of doubt they are construed more strongly against the government, and in favor of the taxpayers, because burdens are not to be imposed unless the intention of the Legislature to impose them is distinctly shown. Cooley on Taxation, 201, 202. Under this rule, in the absence of any general words in the statute covering such corporations as insurance companies, we conclude that they were not embraced by it, and that the practical construction of the statute at the hands of the executive and legislative departments of the government should not now be departed from.

But it is said that by sections 172 and 174 of the Constitution all property in the State is subject to taxation, and)' can not be exempted, either by omission in the act or by express legislation, for to allow the property to be exempted by the failure of the Legislature to act would be to allow it to accomplish by indirection what it can not do directly. The answer to this is that the board of valuation and assessment is the creature of the Legislature, and in creating it the Legislature had authority to confer upon it such power as it saw fit. Power to assess the franchises of insurance companies not having been conferred on it by the Legislature, the board is without jurisdiction to act in the premises, and the question of the power of some other authority to act is not here presented. The Constitution of Kentucky is not peculiar in respect to taxation. The same principle is expressly stated or necessarily implied from the provisions of the Constitution of most of the States; but in something like 40 States the same mode of taxation is followed as provided by section 4227, Ky. St. 1899, and in the remaining States there is a license tax or a tax on policies. Section 4077 does not impose upon the corporations named in it any greater taxtion than is imposed on other taxpayers. It is a part of the act providing for the payment of a uniform tax on all property directed to be assessed for taxation by the owner, person, or corporation assessed. • Ky. St. 1899, section 4019. Personal property of every kind is separately valued, and if there be no appropriate column in the tax book, it is placed in the column headed “Miscellany.” Section 4050. It is the duty of the assessor to take the tax list of all persons, whether natural or corporate, including therein their tangible and intangible property. The purpose of section 4077 is to provide another mode for the assessment of certain intangible property of the corporations referred to in it, which could not be so intelligently assessed by the county assessor. But when the board has acted in the case of these corporations, it has only completed the assessment of their property, part of their assessment being made by the county assessor, and part by the board, while in the case of other taxpayers the assessor makes the entire assessment. The Legislature has not seen fit to take life insurance companies out of the class whose assessment is to be made by the county assessor. How and by whom property shall be assessed for taxation is a matter to be regulated by the General Assembly. It is a sovereign power to impose taxes, and to direct how they shall be laid and ^collected. The Legislature must also determine by what rule the situs of personal property for taxation shall be governed. Thus personal property in this State, although having an actual situs in another county, can be taxed only at the residence of the owner. Wren v. Boske (24 R., 1780), 72 S. W., 279; Lexington v. Fishback’s Trustee (109 Ky., 770, 22 R., 1392), 60 S. W., 727. And in the absence of legislative authority, intangible property of a nonresident of the State can not be taxed here. Baldwin v. Shine, Judge, 84 Ky., 502, 8 R., 496, 2 S. W., 164; City of Covington v. Wayne (22 R., 826), 58 S. W., 776. So money lent by a nonresident, and secured by mortgage on property in this State, has been held not taxable in this State until the Legislature shall provide for its taxation by giving it a situs. Board of Councilmen, City of Frankfort, v. Fidelity Trust & Safety Vault Co. (111 Ky., 667, 23 R., 908), 64 S. W., 470.

It is incumbent on appellants to list with the assessor all their property, real or personal, subject to taxation in the respective counties of the State. German National Ins. Co. v. Louisville (21 R., 1179), 54 S. W., 732. This they allege they have done, paying the taxes thereon, in addition to the $2 on each $100 of premiums, as provided by section 4227, Ky. St. 1899. If they own any intangible property in this State, that should justly bear its part of the public burdens, and is not reached by the assessor because having no situs in the county, the Legislature must act, and give it a situs, and provide where and by whom it shall be assessed for taxation. Until the Legislature acts, and gives it a situs in the State, such intangible property of appellants would seem to stand as the intangible property of other nonresidents of the State, or money lent by them -on mortgages here.

Judgments reversed and causes remanded, with directions to overrule the demurrers, and for further proceedings consistent herewith.

Whole court sitting.