Hunter v. Memphis

Caldwell, J. This is an agreed case between the city of Memphis on one side, and E. B. Hunter and E. W. Smith on the other side, involving the ’question of the liability of insurance agents to municipal privilege taxation. The Circuit Judge decided the question in favor of the city, and Hunter and Smith appealed in error. The Legislature of 1879 laid an annual municipal privilege tax of $200, for each company represented, upon agents of foreign insurance companies having offices and doing business in the Taxing District of Shelby County. Acts 1879, Ch. 84, Sec. 7,, [573] Sub-sec. 54. The amount of that tax was reduced to $100 per annum in 1881. Acts 1881, Ch. 96, Sec. 18. The Taxing District of Shelby County having been abolished, ample taxing power, and the benefit of all laws imposing privilege taxes in her favor, were expressly conferred upon the city of Memphis, as her successor, by Sections 4 and 5, Chapter 84, Acts of 1893. Subsequently, the general revenue bill of 1893 was passed; and, by the fourth section thereof, it was provided that each insurance agent or firm doing business in this State, in counties of 50,000 inhabitants or over, shall annually pay the sum of $20 as a State privilege tax, “in lieu of all other tax.” Acts 1893, Ch. 89, Sec. 4, pp. 123 and 134. The plaintiffs in error have offices and do business in the city of Memphis, as agents of foreign insurance companies, Hunter representing two companies and Smith representing one. As such agents, each of them, in pursuance of the requirement of Section 4, Chapter 89, Acts of 1893, paid to the Treasurer of the State the sum of $20, as a State privilege tax for the year 1894. Thereafter, the city of Memphis demanded of them a municipal privilege tax of $100 for each company represented, for the same year, 1894. This demand was made by virtue of Section 18, Chapter 96, Acts of 1881, already mentioned. Hunter and Smith refused to pay the tax thus demanded, upon the ground, as contended by them, [574] that the law under which it was claimed had been repealed by the subsequent provision, under which they had paid the $20 each to the State. The Act of 1893 cannot operate as an express-repeal of the Act of 1881, for the reason that it does not recite in its caption, or otherwise, the title or substance of the latter Act, as required by Section 17, Article II., of the Constitution. Such recital is essential to the validity of every express repeal; but not in case of implied repeals, the latter not falling within the constitutional requirement. -If there be any valid repeal in the present instance, it must be implied. To constitute a repeal by implication, there must-be such repugnance or-conflict between the positive and material provisions of the different Acts-that they cannot stand together. There is no such repugnance or conflict where one Act simply lays-a municipal privilege tax, and another' lays a State privilege tax, without more, upon the same person or business. Such Acts may co-exist without the slightest interference the one with the other, the two taxes being separate and distinct. The imposition of the one tax is not, of itself, an exemption from the other. It is entirely competent, if not usual, for the Legislature to require the same person or business to pay a municipal privilege tax and also a State privilege tax for the same period of time, or by the year. Indeed, both may be imposed by the same Act, or by different Acts. The Act of 1881 laid a municipal tax, the Act575 of 1893 a State tax; and, if that were all, both would certainly be collectible. But that is not all. The Act of 1893 did not stop with the mere imposition of a tax in favor of the State; it went further, and said that the State tax thereby imposed should be “ in lieu of all other tax.” If, “in lieu of all other tax” (meaning privilege tax), then no other tax, previously laid, was thereafter authorized or valid. It is true that there is not any repugnance- or conflict between a mere municipal tax and a mere State tax; but there is the greatest possible repugnance and conflict between a municipal tax and a State tax in lieu of all other tax. They cannot coexist. A State privilege tax or a municipal privilege tax, .upon a particular person or business, in lieu of all other tax, covers the whole domain of privilege taxation that the Legislature intends shall be occupied, and excludes every other privilege tax,, as to such person or business, until further legislation with respect thereto shall be had. The-phrase, “ in lieu of all other tax,” is a positive exclusion of every other privilege tax. It has no-other office or meaning. It follows, therefore, that .the municipal privilege tax laid upon insurance agents by the Act of 1881 was impliedly repealed by that part of the Act of" 1893 which imposed upon them a State privilege tax “ in lieu of all other tax.” The doctrine of repeal by implication has been. [576] recognized and applied in several decisions of this Court. Home Insurance Co. v. Taxing District, 4 Lea, 644; Maney v. The State, 6 Lea, 221; Knoxville v. Lewis, 12 Lea, 181; Ballentine v. Pulaski, 15 Lea, 633; The Druggist Cases, 85 Tenn., 450; Poe v. The State, Ib., 495; Terrell v. The State, 86 Tenn., 523; etc. In the first case mentioned, it was held that the words, “which shall be in lieu of all other taxes,” occurring in the Act of 1875, were themselves impliedly repealed by the Act of 1879, which imposed an additional tax. Reverse, and enter judgment here for plaintiffs in error.