Opinion
No. 43462.
March 9, 1953.
APPEAL FROM THE CIRCUIT COURT, COLE COUNTY, SAM C. BLAIR, J.
Stockard Stockard, Jones, Hocker, Gladney Grand and James C. Jones, Jr., St. Louis, for plaintiff-appellant.
J. E. Taylor, Atty. Gen. and Julian L. O'Malley, Asst. Atty. Gen., for respondents.
Missouri Insurance Company appeals from an adverse decree in this its action against the appropriate officers of this state to enjoin the collection of the 2% premium tax prescribed by Section 148.370 RSMo 1949, V.A.M.S., as assessed against it for the year 1951. The amount in dispute is $54,826.56; state officers are parties; and the constitutionality of a statute is involved, for each of which reasons exclusive appellate jurisdiction is in this court under Art. V, § 3, Const. of Mo. 1945, V.A.M.S.
Turning to the question sought to be presented, and referring to the parties as styled in the trial court, we find plaintiff standing on the proposition that the section of the statute, supra, is unconstitutional and void, in its entirety, because it exempts from taxation the intangible personal property of plaintiff, in violation of Art. X, § 6 of the Constitution. That section, as enacted by Laws 1945, p. 1023, provided, in pertinent part, that insurance companies such as plaintiff (among others) "shall * * * annually pay, beginning with the year 1945, a tax upon the direct premiums received by it from policyholders in this state, whether in cash or in notes, or on account of business done in this state, for insurance of life, property or interest in this state, at the rate of two per cent (2%) per annum, which amount of taxes shall be assessed and collected as hereinafter provided, and shall be in lieu of all taxes upon intangible personal property owned by such insurance companies or associations". (Emphasis supplied.)
It is certain that so much of the statute as exempted intangible personal property from taxation (the "in lien" portion, as set out in italics above) was condemned and stricken down as unconstitutional in General American Life Ins. Co. v. Bates, Mo. Sup., 249 S.W.2d 458, 467. Whether the scope of that adjudication is such as to embrace and apply to the entire section is a point of sharp difference between the parties upon the present submission. Such difference seems to stem from a modification of the divisional opinion when adopted by the court en banc, to which the cause had been transferred. The modification consisted of the addition of the three words (italicized below) in this, the concluding paragraph of the opinion: "Accordingly, the judgment is reversed and the cause is remanded with directions to enter judgment holding the 'in lieu' portion of the statute unconstitutional * * *."
Plaintiff contends that, in any event, the excision of the: "in lieu" portion, as thus directed, renders the whole section invalid because such portion or clause "was an integral part of the statute," the attendant presumption being "that the legislature intended that a statute should be effective in its entirety." Defendants, contending to the contrary, urge that the stricken provisions are severable, and that those remaining are valid, and constitute the imposition of an excise tax. It was held in the General American case, supra, that the tax here in question is not a property tax, but is an excise or occupation tax imposed upon the privilege of conducting insurance business. Plaintiff concedes as much. Its complaint is not directed at the efficacy of the section, with the "in lieu" provisions deleted, to impose such a tax. On the contrary, it is vehemently insisted, as showing the interdependency of the several provisions of the statute, that to give effect to those remaining would be to subject plaintiff to the payment of both the premium tax and an intangible property tax — the very contingency, it is asserted, that the legislature, through the "in lieu" provisions of the enactment in question, purposely and designedly sought to avoid.
The particular statute here challenged was the second of two enactments on the same subject by the 63rd General Assembly. It was approved April 19, 1946. Laws 1945, p. 1023, H.B. 871, § 6098a, R.S. 1939. The prior act was approved April 28, 1945, Laws 1945, p. 993, S.B. 74, and § 6098a thereof was in all respects identical with the corresponding section of the second and later measure now under scrutiny, H. B. 871, section 148.370 RSMo 1949, V.A.M.S., except that it did not contain the "in lieu" provisions of the latter, the text of which we have already reproduced. S. B. 74 was in effect 14 months and 3 days, i. e., from April 28, 1945, until July 1, 1946, the effective date of H.B. 871. During this interval, the intangible property tax act was passed, and approved April 19, 1946. Laws 1945, p. 1914, RSMo 1949, Ch. 146, V.A.M.S. H.B. 871 repealed and re-enacted § 6098a as theretofore enacted by S.B. 74 by adding the "in lieu" provisions, as just mentioned.
In the light of this legislative history and the applicable authorities presently to be noticed, whether the constitutionality of the particular enactment here attacked be rejected or upheld is of no consequence as affecting the result in this case. In this situation, and for present purposes, we shall assume (without deciding) that such later and challenged act is unconstitutional for the reason urged by plaintiff. It is apparent that mere repeal of the prior act is not all that was intended. On the contrary, the evident purpose of repealing and re-enacting the section with the change we have pointed out (the addition of the "in lieu" provisions) was to substitute the new section for the old. The applicable rule in such circumstances, as stated in Williams Lumber Mfg. Co. v. Ginsburg, 347 Mo. 119, 123, 146 S.W.2d 604, 605, is that "if the new section is unconstitutional, the repealing clause is likewise invalid and the old section remains in force." Supporting authorities were there cited, among them State ex. inf. McKittrick v. Cameron, 342 Mo. 830, 839, 117 S.W.2d 1078, 1082-1083, where, in treating of a like situation, this court, en banc, said: "The rule is that where the repealing clause is incidental to the rest of the act and the act is unconstitutional, the repealing clause is likewise invalid and the prior general law is left unrepealed. 'In other words, when, as here, the evident purpose of the repeal is to displace the old law and substitute the new in its stead, the repealing section or clause, being dependent on that purpose of substitution, necessarily falls when falls the main purpose of the act." State v. Thomas, 138 Mo. 95, loc. cit. 100, 39 S.W. 481, loc. cit. 482. To the same effect are the following cases: State ex rel. Crouse v. Mills, 231 Mo. 493, 133 S.W. 22, and State ex inf. Barrett, Attorney General v. Joyce, 307 Mo. 49, 269 S.W. 623."
In this view, after having accorded plaintiff's contention the benefit of its maximum potentiality, the prior act of April 28, 1945, would have remained in force, and hence sanctioned the assessment and collection of the tax in question. It follows that the decree should be, and it is, affirmed.
All concur.