City of Birmingham v. Home Ins. Co. , 240 Ala. 195 ( 1940 )

The general revenue bill was approved July 10, 1935, containing Schedule 160.17 and the proviso in question. Gen.Acts 1935, p. 555, § 348, Schedule 160.17. The last expression of the legislative will as to the Firemen's Pension and Relief Fund is contained in the Act approved September 9, 1935, p. 847, and includes the significant provision that each fire insurance company, whether a mutual company or otherwise, qualified to do business under the laws of the State of Alabama, and doing business in such city, shall annually on or before the first day of March of each year pay into the Firemen's Pension and Relief Fund a sum equal to one-half of one per centum of the gross premiums less return premiums received by such fire insurance company for and on account of business, including all renewals of fire insurance done by it in such city during the preceding year, and it is made unlawful for such fire insurance company or its agents to receive any premium for insurance against fire within the city "unless such fire insurance company shall pay at the time aforesaid to the Firemen's Pension and Relief Fund the amount herein provided to be paid by such fire insurance company."

It cannot be said, then, that the provisions of Schedule 160.17 of the Revenue Act of 1935, supra, and the proviso therein contained (here under consideration), were not modified by the subsequent act of Sept. 9, 1935, and that the construction given on the former hearing was of effect to relieve industrial companies writing in part or exclusively industrial insurance from the payment of the amounts required to be paid into the Firemen's Pension and Relief Fund. In other words, the proviso in question, as a part of the context of Schedule 160.17, supra, must be held to apply to excise tax, and not to the amount to be paid into the Firemen's Pension and Relief Fund.

We should say further that the proviso in question does not relieve industrial companies or those writing industrial insurance from the duty to procure a certificate and license for such agents or representatives, or of the payment of the fee indicated in Schedule 160.14, p. 554, Gen. Acts 1935; or from the payment to the superintendent of insurance of the sum of two-fifths of one per cent of gross premiums less return premiums, for the purpose of maintaining the office of state fire marshal, as required in Schedule 160.17, p. 555 of the Revenue Law, supra.

These are not "license taxes" in the sense dealt with in Schedule 160.17, supra, but are fees imposed on the writing of all fire insurance in the state (including industrial insurance) and are not imposed by the municipality, but by legislative enactments contained in the revenue law, and by the subsequent act providing for the Firemen's Pension and Relief Fund for "regularly organized and paid fire departments" of cities which have a population of as much as two thousand, according to the last Federal Census.

The result is that, in our opinion, this industrial fire insurance plaintiff in the trial court is not entitled to receive the amount paid into the Firemen's Pension and Relief Fund of Birmingham, under the Act of September 9, 1935, p. 847, and to that extent we cannot concur in the opinion of the Court of Appeals. And for that reason, the application for rehearing is granted. The judgment of the Court of Appeals is reversed and the cause remanded to that court so that the judgment of the trial court may be modified pursuant to this holding.

Opinion extended, application for rehearing granted, writ awarded, reversed and remanded.

All the Justices concur in this result.