The taxing statute relied on requires that "all life insurance companies or associations shall pay annually a tax of two and one-fourth (2 1/4) per centum of the gross amount of premium receipts in this state."
The annuity policies are covered in the agreed statement of the facts, a portion of which has been copied in the majority opinion. The decision should turn on the question whether these annuity contracts are life insurance policies. If they are not, then the considerations paid for them are not insurance premium receipts.
The dictionaries in ordinary use, such as Webster and Century, define the word "premium" as meaning the consideration paid for a contract of insurance, and the law dictionaries, such as Bouvier and Anderson, give the same definition. Our statute, Sec. 5131, Code 1930, defines a contract of insurance in these words: "A contract of insurance is an agreement by which one party for a consideration promises to pay money or its equivalent, or to do some act of value to the assured, upon the destruction, loss or injury of something in which the assured or other party has an interest, as an indemnity therefor . . ."
Under the foregoing definition, the annuity policies embraced under either of the first three classes mentioned in the agreed statement of the facts are not policies of life insurance. The obligations of the company do not arise because or on account of death and as an indemnity *Page 847 therefor, but as has been tersely expressed, the purpose of such a contract is a provision for life, not for death. The large majority of the courts have so held, some of them after elaborate discussion. For such elaborations reference may be had to the following cases: State of Wyoming ex rel. v. Hamm, 54 Wyo. 148,88 P.2d 484; Wellman v. Board of Commissioners, 122 Kan. 229, 252 P. 193; Hall v. Metropolitan Life Ins. Co., 146 Or. 32,28 P.2d 875; In re Thornton's Est., 186 Minn. 351, 243 N.W. 389; People v. Knapp, 193 A.D. 413, 184 N.Y. Supp. 345, affirmed231 N.Y. 630, 132 N.E. 916; Com. v. Metropolitan Life Ins. Co.,254 Pa. 510, 98 A. 1072; Carroll v. Equitable, etc., Society, D.C., 9 F. Supp. 223; Daniel v. Life Ins. Co. (Tex. Civ. App.),102 S.W.2d 256; Old Colony, etc., Co. v. Commissioner, 37 B.T.A. 435; State of North Dakota v. Equitable, etc., Society,68 N.D. 641, 282 N.W. 411. Contra, Northwestern Mut. Life Ins. Co. v. Ray Murphy, 223 Iowa 333, 271 N.W. 899, 109 A.L.R. 1054; New York Life Ins. Co. v. Sullivan, 89 N.H. 21, 192 A. 297; State ex rel. Holt v. New York Life Ins. Co., 198 Ark. 820,131 S.W.2d 639; Mutual Benefit Life Ins. Co. v. Com., 227 Mass. 63,116 N.E. 469. The four minority cases above cited are those, and those only, upon which the controlling opinion in the present case relies.
We ought to ascribe the usual and ordinary meaning to the use of the word "premium" in the statute, and there has been shown what that meaning is. But when everything is said that could be said, except by mere assertion, in favor of the contention that annuity considerations are premiums, the question is fairly advanced no further than to put the meaning in doubt, and this would bring into the solution two principles both of which are definitely settled in this state. And the first is that tax laws are interpreted strictly in favor of the taxpayer and any doubt must be resolved against the state. McKenzie v. Adams-Banks Lbr. Co., 157 Miss. 482, 128 So. 334, and the cases therein cited. *Page 848
The second principle, and the facts are such that it ought to be controlling here, is that where the executive and administrative officers of the State charged with the execution and administration of a particular statute have for a long and unbroken period of time uniformly construed and administered it as not imposing the tax now lately claimed, and the same statute in the same or exactly similar language has been re-enacted long after the adoption of the departmental construction, the statute as re-enacted will be considered as having accepted that departmental construction as a part of the enactment. Miller v. Yazoo M.V.R. Co., 160 Miss. 603, 132 So. 597; White v. Miller,160 Miss. 734, 133 So. 146; Gully v. Jackson International Co.,165 Miss. 103, 145 So. 905.
In Section 1, Chap. 227, Laws 1912, the language is the same as that of the statute quoted in the opening paragraph of this opinion. Likewise in the next act dealing with the subject, Section 1, Chap. 203, Laws 1916. So in each succeeding enactment: Section 31, Chap. 104, Laws 1920; Section 134, Chap. 118, Laws 1926; Section 103(b), Chap. 88, Laws 1930; Section 111(b), Chap. 89, Laws 1932; Section 115, Chap. 118, Laws 1934, and the quoted section, Sec. 108, Chap. 20, Laws 1935, Ex. Sess. During all those years all of the departments charged with the collection of taxes due by insurance companies construed the statute to mean, else they would have proceeded otherwise, that the so-called premiums on the annuities of the three classes above referred to were not liable for the tax. The stipulation upon the facts recites: "That during all the years prior to 1936, during which the annual statements made by defendant to the Commissioner of Insurance of the State of Mississippi were accepted and filed by said Commissioner, no demand or request of the defendant was ever made by the Commissioner of Insurance of the State of Mississippi or by the State Tax Collector of said State for the payment of a tax on considerations or receipts for annuity contracts and that defendant during that time never paid such a *Page 849 tax." It was not until July, 1936, after a period of more than twenty years, that the then Insurance Commissioner raised the question, and the matter having been submitted to the Attorney General, he ruled on September 25, 1936, that these annuity considerations were not liable. At the next ensuing regular session of the legislature by Section 10, Chap. 117, Laws 1938, the law was re-enacted in precisely the same language, and it may be of interest to add that the new privilege tax code, adopted only a few weeks ago, carried the same verbiage. The departmental construction, as evidenced by the course actually pursued now for nearly thirty years, when taken together with the numerous re-enactments in the same language, ought to be considered as having foreclosed the question, and the decree of chancery court adjudging that there is no liability for the tax now demanded, ought to be affirmed.
The majority go around the two foregoing long and firmly established rules of adjudication by declaring that the interpretation which they adopt is not open to doubt. They adopt an interpretation contrary to the standard lay and law dictionaries, contrary to the holdings of the large majority of the courts of the country, and contrary to the generation-old departmental construction; and yet say their position is one free from doubt. It seems to me that it would be better for the law that in such a situation that attitude should not be taken.
Smith, C.J., joins in the foregoing dissent.