Franklin Insurance Co. v. State , 5 W. Va. 349 ( 1872 )

BERKSHIRE, P.

This action is founded on the fourth section of chapter 33 of the acts of 1864, p. 23. On behalf of the appellant, it was claimed that the taxes assessed against insurance and express companies under the provisions of this act are not equal and uniform with the taxes assessed against the property of other companies and individuals throughout the State; nor the property of insurance and express companies taxed according to its value, and also that a higher tax is thus imposed on the property of such companies than is imposed by law on other species of property belonging to-other companies and individuals, of equal value. And that the act, therefore, was in conflict with the first section of the eighth article of the constitution of the State.

The 118th chapter of the acts of 1863, in force at the time of the passage of the act of 1864, prescribed the mode of taxation as to the property of all incorporated joint stock companies as well as of companies not incorporated and individuals, being repealed by the latter act only as to insurance and express companies.

By inspection of the former act, it will be found that no. such taxes were assessed upon the receipts or against the property of any other companies or individuals within the State, and it would seem to follow, therefore, that the taxes levied by the latter act were not equal or uniform, as required by the article of the constitution referred to. And, moreover, it is very clear that, by the act in question, a higher tax was imposed on the property of insurance companies — whether their gross receipts for premiums should be regarded as constituting a part of their personal property, of the value of the amount of them, or not — than was assessed by law against the property of other companies and individuals of equal value. For if, for example, it should be assumed that one thousand dollars of the gross receipts of such companies be equivalent in value to one thousand dollars worth of. other personal property, and certainly it could be of no greater value, then while the latter was taxed less than one-third of one per cent, or three dollars, the former was liable under the statute-we are considering, to a tax of three per cent, or thirty' dollars !

But it seems to me it ’does not necessarily follow that the gross receipts of insurance and express companies, thus taxed, were in fact equivalent, in value, to so much property ■or in reality of greater value than the receipts of other companies and individuals of the same amount which as we have seen, were not taxed at all, or at least only as they went to make up a part of the personal property of such companies and individuals, on which a tax only of thirty cents on the one hundred dollars worth was assessed. And in this respect therefore the taxes imposed on such companies by the ■act in question, would not seem to be assessed against their ■property according to its value.

In my view then, the act under consideration was plainly in conflict with the Constitution of the State and it is our 'duty therefore to declare that it was invalid.

The judgment must be reversed and the suit dismissed.

Judge Moore concurs. Judge Maxwell declined to express any opinion as his name is signed to the declaration as acting for plaintiff.

JUDGMENT REVERSED.