State Ex Rel. Lane Drug Stores, Inc. v. Simpson

• Decision Date: 26 November 1935
• Citation: 122 Fla. 582,166 So. 227
• Parties: STATE ex rel. LANE DRUG STORES, Inc. v. SIMPSON, Tax Collector.[*]
• Court: Florida Supreme Court

166 So. 227

122 Fla. 582

STATE ex rel. LANE DRUG STORES, Inc. v. SIMPSON, Tax Collector.^[*]

Florida Supreme Court

November 26, 1935

En Banc.

Original proceeding by the State, on the relation of the Lane Drug Stores, Incorporated, against Clyde H. Simpson, as Tax Collector of Duval County, for mandamus.

Alternative writ held insufficient on demurrer.

Judgment affirmed and opinion readopted on rehearing 166 So. 262.

BUFORD J., dissenting in part.

COUNSEL

Thos. B. Adams, Henry P. Adair, John M. McNatt, and Knight, Adair, Cooper & Osborne, all of Jacksonville, for petitioner.

Cary D Landis, Atty. Gen., H. E. Carter and J. V. Keen, Asst. Attys. Gen., and Henry C. Tillman, of Tampa, for respondent.

OPINION

FRANK A. SMITH, Circuit Judge.

This proceeding in mandamus is one of a number of cases pending in this court, all of which attack the validity of chapter 16848, Laws of Florida 1935, and which is commonly known as the 'Chain Store Tax Act,' also as 'Senate Bill No. 724,' which last reference will hereinafter be used for the sake of convenience.

Also because of the necessity for frequent reference threto as a discussion of the case progresses, it is considered well to copy here the following portions of the act, to wit:

'An Act to Provide for the Relief of the Public Free Schools of the State of Florida by Raising Revenue for the County School Fund by Levying and Imposing a Tax Upon the Privilege of Operating a Store or Stores Within this State to Classify Such Stores for the Purpose of Such Taxation and of Graduating the Tax in Accordance with the Number of Stores Operated Under a Single Ownership, Management or Control, to Declare the Public Policy on Which this Act is Founded; to Provide for the Administration and Enforcement of this Act and for the Promulgation and Enforcement of Rules and Regulations to Facilitate Such Enforcement; to Provide for the Creation and Enforcement of a Lien Upon the Property of Persons Liable for the Payment of Such Tax; to Provide Penalties for the Violation of this Act and of Rules or Regulations Lawfully Made Under the Authority Hereof; to Repeal Conflicting Laws, Expressly but on Condition Including Chapter 16071, Laws of Florida of 1933; and to Appropriate the Revenues Derived Hereunder.

'Be It Enacted by the Legislature of the State of Florida:

'Section 1. Declaration of Policy. It is hereby determined and declared that extensive new revenues are required to promote education and to preserve the common school system of the State of Florida; and that in the raising of such revenue it is expedient to levy a privilege tax upon the occupation of engaging in and continuing in the business of operating of retail stores in the State of Florida in lieu of that heretofore provided by Chapter 16071 of the Laws of Florida, 1933, and in addition to all other taxes; and that due to the greater specialization in management and methods, the advantages of mass buying, of intensive selling; of more efficient utilization of capital assets, of the specialized character of their merchandising and the more efficient coverage and results obtained from their advertising, stores operated in multiple units enjoy an advantage over individually owned and operated single stores to the extent that it is fit and proper that such stores should be separately classified for the purpose of such privilege taxation; and further, that the increasing growth of chains and greater multiplication of units of stores tend to foster monopoly and to create unemployment by driving out of business their competitors who do not enjoy such advantages and that therefore the multiplication and extension of such units of chain stores should be discouraged as a matter of public policy. * * *

'Section 4. Tax. For the privlege of continuing in or engaging in the business of a retailer as defined in this Act, there is hereby imposed upon every person, firm, corporation, association or copartnership, trust or joint stock company, and any firm however organized or whatever be the plan or operation, shall under the terms of this Act be required to obtain a permit or license to operate a store in this State, a tax which shall be equal to the amount due under the provisions of Subdivision A, and the amount due under the provisions of Subdivision B of Section 4 of this Act; in order to equitably and properly fix the formula upon which the herein license fees shall be based and so that the factor of number of stores and the factor of amount of business done under the privilege shall be included in the formula. The specific amount to be determined as follows:

'Subdivision A.

'Class 1.--Upon one store, the flat of sum of $10.00.

'Class 2.--Upon chains of more than one but not more than three stores, the flat sum of $50.00 for each said store.

'Class 3.--Upon chains of more than three but not more than six stores, the flat sum of $100.00 for each said store.

'Class 4.--Upon chains of more than six but not more than ten stores, the flat sum of $200.00 for each said store.

'Class 5.--Upon chains of more than ten but not more than fifteen stores, the flat sum of $300.00 for each said store.

'Class 6.--Upon chains of more than fifteen stores the flat sum of $400.00 for each said store.

'Subdivision B.

'Class 1.--Upon one store, also an amount equal to one-half of one per cent of the gross receipts from all sales as defined in this Act.

'Class 2.--Upon chains of more than one but not more than three stores, also an amount equal to one per cent of the gross receipts from all sales as defined in this Act.

'Class 3.--Upon chains of more than three but not more than six stores, also an amount equal to two per cent of the gross receipts from all sales as defined in this Act.

'Class 4.--Upon chains of more than six but not more than ten stores, also an amount equal to three per cent of the gross receipts from all sales as defined in this Act.

'Class 5.--Upon chains of more than ten but not more than fifteen stores, also an amount equal to four per cent of the gross receipts from all sales as defined in this Act.

'Class 6.--Upon chains of more than fifteen stores, also an amount equal to five per cent of the gross receipts from all sales as defined in this Act.

'The tax imposed under Subdivision B of this section shall be calculated upon the gross receipts of the total number of stores in each respective chain concerned at the rate prescribed in the applicable 'class' bracket of the foregoing schedules.

'If the tax in Subdivision B of this section be, for any reason, held invalid and inoperative, then the taxes in each of the six classes of stores enumerated in Subdivision A of this Section shall be twice the amount set forth in said Schedule A, in lieu of the rates therein prescribed. * * *.

'Section 7. Amount of Tax. The taxes levied and imposed by subdivision A of Section 4 of this Act shall be due and payable on the first day of July of each and every year, at which time the Comptroller of the State of Florida shall issue the license after ascertaining from the applicant therfor the facts with reference to the number of stores owned or controlled by said applicant. The taxes levied and imposed by subdivision B of Section 4 of this Act shall be paid monthly and for the purpose of ascertaining the amount, every person coming within the provisions of this Act, on or before the fifteenth day of August, 1935, and on or before the fifteenth day of every calendar month thereafter, individually or by duly authorized officer or agent, shall make and file with the Comptroller a written return, in the manner and form designated or prescribed by said Comptroller, and upon blanks furnished by him showing the amount of gross receipts from sales by such person during the preceding calendar month and the amount of tax for which such person is liable for the current calendar month, and with such written return such person shall remit to the Comptroller the amount of said tax due from such person.

'(a) In case of credit and time sales the amount thereof shall be included in the gross receipts for the month in which payments are received by the person, without any deduction therefrom on account of the cost of the property sold, the cost of the materials used, labor or service cost, interest paid, losses or other expense whatsoever.

'(b) If the amount due by any person as the tax imposed by this Act is not paid on or before the date prescribed for its payment, there shall be collected, as a part of the tax, interest upon said unpaid amounts, at the rate of two per centum (2%) per month from the date prescribed for its payment until it is paid.

'(c) It shall be the duty of every person required to make a report and pay any tax under this Act, to keep and preserve suitable records of the gross proceeds of sales taxable under this Act, and such other books of account as may be necessary to determine the amount of tax due hereunder; and it shall be the duty of every person to keep and preserve, for a period of two years, all invoices and other records of goods, wares or merchandise purchased for resale; and all such books, invoices and other records shall be open to examination, at any time, by the Comptroller or any one of his duly authorized agents.

'(d) Any permit holder may take credit on any tax payable for the privilege of doing business under Section 4 of this Act on tax due under subdivision A or in the months of August or September, 1935, due under subdivision B for the proportional unexpired portion of the amount paid for any license heretofore obtained by him under the provisions of Chapter 16071, aforesaid. * * *

'Section 9. Time of Payment. At the time of transmitting the return required...