Young v. State Life Insurance

45 So. 706, 91 Miss. 710

• Court: Mississippi Supreme Court
• Decided: October 15, 1907
• Status: Published

Opinion

Calhoon, J.,

delivered the opinion of the court.

On May 2, 1906 (note the date particularly), Young, the appellant, executed his promissory note payable to the State Life Insurance Company. This note on its face shows that it was given for an extension of the time of payment of his premium on a life' insurance policy. The result of the proceedings was that the court sustained the insurance company’s demurrer to Young’s second plea. This second plea was on the ground that the contract was void, because in violation of law, in that the privilege tax had not been perviously paid by the insurance company. Subsequently the court gave a peremptory instruction to find for the insurance company, and overruled the motion for a new trial.

Since 1880 up to the date of the Code of 1906, the privilege tax statutes contained a clause making all contracts made in this state of case absolutely null and void. Under this Code of 1906 the whole clause declaring the voidness of contracts is omitted, and the Legislature contented itself with prescribing a fine, or imprisonment, or both, against any person or corporation exercising the privilege without first paying the tax. We held at this term, in White v. Post & Bowles, 45 South., 366, Ante 685, that a note made for premiums, pending the statute containing the clause of nullity, was void, and remained void, even if the statute had been repealed generally, without words declaring otherwise, following Anding v. Levy, 57 Miss., 51; 34 Am. Rep., 435, and Decell v. Lewenthal, 57 Miss., 331; 34 Am. Rep., 449. In the case at bar the Legislature, on page 138 of the Code of 1906, expressly declared that that Code, as to privilege taxes and three or four other chapters, should take effect and be in force from and after April 21, 1906. This puts the case precisely in the category of State v. Hill, 70 Miss., 106; 11 South., 789. It follows, therefore, inasmuch as the note was made after April 21, 1906, that this contract must be determined according to the Code of 1906, which evolves the sole question whether the note is null and void because the statute provides a penalty, although it does not contain, but omits, the clause declaring' such contracts null’ and void. It is practically decided by our state in Bohn v. Lowery, 77 Miss., 426; 27 South., 604, that in cases involving revenue the contract is not void because of the penalty. In this decision this court followed the line of decisions cited in the opinion, and adopted that reasoning discriminating between contracts malum in se and those merely malum prohibitum, and that, of the penalty is merely to protect revenue, the Legislature intended to rely on the penalty only to correct the evil and did not make the contract per se void. See 9 Cyc., 477. This case of Bohn v. Lowery refers to the legislative construction, and we approve of the conclusion in that case. The doctrine of strict construction applies to these statutes, and the mere fact of the omission of the nullity clause so long prevailing is a very strong indication of the legislative intent to do away with' the harsh act making such contracts absolutely void.

Affirmed.