We are of opinion that the action for the two per cent, of the gross receipts of the insurance company can not be maintained for the reason there is no existing law justifying it.
In the general law there was formerly a provision (Chap. 24, Sec. Ill, Starr & Curtis,) which declared that “ All corporations, companies or associations, not incorporated under the laws of this State, engaged in any city in effecting fire insurance, shall pay to the treasurer the sum of $2 upon the $100 of the net receipts by their agency in such city, and at that rate upon the amount of all premiums which, during the half year ending on every first day of July and January, shall have been received for any insurance effected or agreed to be effected, in the city or village, by or with such corporations, companies or associations respectively. * * * Provided, that this section shall only apply to such cities a,nd villages as have an organized fire department, or maintain some organization for the prevention of fires.” This is the only authority we have been able to -find justifying the city in passing the ordinance in question, and this is unquestionably repealed and abrogated by Sec. 30 of Chap. 73, passed in 1879, and in force July 1, 1879.
This section provides that “ Every agent of any insurance company * * * shall return to the proper officer * * the amount of the net receipts of such agency for the preceding year, which shall be entered on the tax list * * * and subject to the same rate of taxation, for all purposes, State, county, town and municipal, that other personal property is subject to at the place where located; said tax to be in lieu of all town and municipal licenses, and all laws and parts of laws inconsistent herewith are hereby repealed: Provided, that the provisions of this section shall not be construed to prohibit cities having an organized fire department from levying a tax, or license fee, not exceeding two per cent., in accordance with the provisions of their respective charters, on the gross receipts of such agency, to be applied exclusively to the support of the fire department of such city.”
It is clear to us that the intention of the Legislature in the Act of 1879 was in lieu of every species of municipal tax or license, to subject the net receipts of insurance companies of the agency within the county, town or municipality, to the same rate of taxation as other personal property.
But it is insisted that the provision to this section gives the power to all cities, having an original fire department, to levy a tax or license fee of two per cent, on the gross receipts of the agency.
We can not assent to this view. In Minis v. U. S., 15 Pet. 433, it is said: “ The office of a provision is, generally, either to except something from the enacting clause, or to restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the Legis-' lature to be brought within its purview.” In Boon v. Joliet, 1 Scam. 258, it is said: “ A provision in a statute is intended to qualify what is affirmed in the body of the act, section or paragraph preceding it.”
We hold that Sec. 30 of Chap. 73 repealed Sec. 110 of Chap. 24, and the provision at the end of Sec. 30 only has the effect to save the power of levying the two per cent, upon gross receipts, “in accordance with the provisions of their respective charters,” and is to be construed as saving such power only to those cities whose charters had a special power of the kind in them at the time of the passage of the act; but it was not intended to create or confer such a power upon other cities. In other words, it saved the power to those municipalities expressly having it by their charters, but did not confer it upon others.
The judgment of the Circuit Court will be affirmed.
Affirmed.