Fuqua v. Hager , 119 Ky. 407 ( 1905 )

Opinion of the court by

JUDGE HOBSO’N

Affirming.

By the statutes of this State foreign insurance companies are required on the 1st day of July in each year to return to the Auditor of Public Accounts a statement under oath of all premiums received since their last report, and at the same time pay into the State treasury a tax of $2 upon each $100 of'premiums received. The Superintendent of Public Instruction, conceiving that a part of the funds arising from .this tax should be paid into the school fund, brought this action against the auditor, charging that something over $130,000 was due on this account to the school fund for the present fiscal year, and praying judgment therefor. The circuit court sustained a demurrer to the petition, and the superintendent appeals.

By section 4019, Kentucky Statutes, 1903, an annual tax of 50 cents is levied upon each $100 of value of all property assessed for taxation: Twenty-two and one-half cents for the ordinary expenses of the government, twenty-two cents for the support of the common schools, five cents for the use of the sinking fund, and one-half of one cent for the Agricultural and Mechanical College. In section 4370, Kentucky Statutes, 1903, in specifying what shall constitute the school fund, after other provisions not here material, are the following: “(5) The annual tax of twenty-two cents on each one hundred dollars of value of all real and personal estate and corporate franchises directed to be assessed for taxation. ((>) Such portions of fines, forfeitures and licenses which may be realized by the State as the amount of taxes for common school purposes bears to the whole State tax other than for the benefit of the Agricultural and Mechanical College.” The money paid into the treasury by the foreign 'insurance companies on account of the tax of $2 upon each $100 of premiums collected by them is no part of the annual tax of twenty-two cents on each $100 of value of real or personal estate or corporate franchises directed to be assessed for taxation, but is an entirely different tax, and therefore subdivision 5 has no application. But it is earnestly argued that this tax is included by the words “fines, forfeitures, and licenses” in subdivision 0, and therefore the portion of the tax indicated in this subsection should be paid into the school fund. It is not contended that the tax is a fine or forfeiture, but it is insisted that it is, in effect, a license tax, and is therefore included within the statute. But it will be observed that the statute does not use the expression “license taxes;” its language is “licenses.” The statute provides for ¿ number of licenses — such as for retailing liquors, selling playing .cards, bowie knives, licenses to pawnbrokers, bowling alleys, circuses, oil depots or wagons, standing a stud, jack, or bud, peddling, rectifying, etc. In all these cases the license must be taken out in advance, and is required to be then paid for. A penalty is imposed if the business is carried on without license. The word “licenses” in the statute before us would aptly refer to this fund, but the fund paid in by the insurance companies is paid in at the end of the year, and is directly a tax upon their receipts or income, and while it is in one sense a license tax we are satisfied it was not contemplated by the Legislature when it used the word “licenses” in the statute above quoted. This mode of taxing foreign insurance companies has been in vogue in this State for about sixty years, and during- all that time no part of the tax had ever been paid to the school fund. This has been the rule followed under several revisions of the statutes, and was necessarily familiar to the Legislature, and if it had contemplated a change of a rule so well understood it must be presumed it would have used language more clearly indicating such an intention. The present act was passed on July 6, 1893, and has been so construed by all the departments of the government from that time until the present controversy arose. The contemporaneous construction of the statute through several administrations is not without force. And, besides all this, the present revenue act was passed by the General Assembly in the year 1902, and in fixing the amount of the school tax and the tax for the general expense fund presumably the Legislature acted in view of the construction of the statute then in force. As shown by the last auditor’s report there was a considerable deficiency in the general expense fund, and, if the money were now taken from the treasury and put into the school fund as sought by appellant, the fiscal affairs of the State would be put in inextricable confusion, and there would be a large deficiency in the general fund, perhaps for the whole time not less than $1,000,000. It can not be presumed that the Legislature in fixing the tax for the general expense of the government intended to fix an amount so inadequate as appellant’s contention would require us to conclude.

Judgment affirmed.