166 So. 733 (Fla. 1936), Lee v. Bond-howell Lumber Co.

Citation:166 So. 733, 123 Fla. 202
Opinion Judge:WHITFIELD, Chief Justice.
Party Name:LEE, State Comptroller v. BOND-HOWELL LUMBER CO. et al.
Attorney:Cary D. Landis, Atty. Gen., H. E. Carter and J. V. Keen, Asst. Attys. Gen., and Henry C. Tillman, of Tampa, for appellant. Thomas B. Adams, Henry P. Adair, John M. McNatt, and Knight Adair, Cooper & Osborne, all of Jacksonville, for appellees.
Case Date:March 10, 1936
Court:Supreme Court of Florida
 
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Page 733

166 So. 733 (Fla. 1936)

123 Fla. 202

LEE, State Comptroller

v.

BOND-HOWELL LUMBER CO. et al.

Florida Supreme Court

March 10, 1936

Suit by the Bond-Howell Lumber Company and others against J. M. Lee, as State Comptroller. From orders, defendant appeals.

Order permitting filing of supplemental and amended bill of complaint affirmed without prejudice, and order refusing to modify injunction reversed, with directions.

ELLIS, P.J., dissenting. [123 Fla. 202]Appeal from Circuit Court, Leon County; J. B. Johnson, Judge.

COUNSEL

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

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

OPINION

WHITFIELD, Chief Justice.

The facts of the case are stated in the opinion of Mr. Justice DAVIS filed in connection herewith.

Section 18, art. 3, Constitution, provides that:

'No law shall take effect until sixty days from the final adjournment of the session of the Legislature at which it may have been enacted, unless otherwise specially provided in such law.'

Chapter 16848, Laws of Florida 1935, Senate Bill No. 724, provides:

'Section 20. This Act shall become effective immediately upon its becoming a law.'

The act was approved by the Governor June 1, 1935, and became a law upon such executive approval. Section [123 Fla. 203] 28, art. 3, Constitution; Parker v. Evening News Pub. Co., 54 Fla. 482, 44 So. 718.

The taxes levied by subdivision A of section 4 of the act 'shall be due and payable on the first day of July of each and every year.' Section 7. 'The taxes levied and imposed by subdivision B of section 4 of this Act shall be paid monthly * * * on or before the fifteenth day of August, 1935, and on or before the fifteenth day of every calendar month thereafter.' Section 7. There is nothing in the act authorizing the courts to change the effective date of the statute that is 'specially provided in such law' under the Constitution, or to change the dates on which statutory taxes 'shall be due and payable' by the express terms of the law. When a statute pursuant to the Constitution specifically states the time when the 'law shall take effect' or 'shall become effective,' the courts are without legal power or authority to change the time.

Section 18 of chapter 14848, Acts 1935, provides that, if any portion 'of this Act' be 'held or declared to be unconstitutional, inoperative or void, such holding or invalidity shall not affect the remaining portions of this Act; * * * and the remainder of this Act after the exclusion of such part or parts shall be deemed and held to be valid as if such excluded parts had not been included herein.' Such provisions authorize the court to consider as excluded from the act any part thereof held to be 'unconstitutional, inoperative or void,' and it is enacted that the 'remainder of this Act * * * shall be deemed and held to be valid.' There is no authority given to change any words used in the act or to substitute other provisions for those contained in the act.

The provisions of the act imposing taxes are specific, affirmative, and severable, not indefinite or misleading; [123 Fla. 204] and distinct, severable portions of such tax provisions are held to be constitutional. As such valid provisions have not heretofore been adjudged invalid by this court, such severable valid portions of the act are constitutional from the date of enactment, and are enforceable as specifically provided in the statute. The circuit court, in granting a temporary injunction, held the entire act to be unconstitutional, but that decree was subject to appeal, and is here appealed. This litigation is not a criminal prosecution, nor is it for the collection of penalties. The question is not one of indefiniteness and construction,

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but of the constitutionality of the whole of the severable parts of the specific, plain, and positive provisions of the acts which impose the taxes.

Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264, was a habeas corpus proceeding in a criminal prosecution, under a regulatory statute which was indefinite in defining the oblightion it imposed upon the petitioner, Smith. In Pierce Oil Corporation v. Hopkins, 264 U.S. 137, 44 S.Ct. 251, 68 L.Ed. 593, questions of whether the act was unconstitutional and whether its alleged uncertainty was removed by construction were treated as wholly different matters.

In Wiseman v. Phillips (Ark.) 84 S.W.2d 91, the following statute of that state was applicable:

'Whenever, by the decision of any circuit court, a construction may be given to any penal or other statute, every act done in good faith in conformity with such construction after the making of such decision, and before the reversal thereof by the Supreme Court, shall be so far valid that the party doing such act shall not be liable to any penalty or forfeiture for any such act that shall have been adjudged lawful by such decision of the circuit court.'

[123 Fla. 205] There is no statute of that nature in this state.

As required by the Constitution, chapter 16848, Acts 1935, expressly provides that the act 'shall become effective immediately upon its becoming a law' (section 20), which was upon the approval of the act by the Governor June 1, 1935. The statute also expressly provides that the annual taxes imposed by subdivision A of section 4 of the act shall be due and payable July 1st 'of each and every year,' and that the gross receipts taxes imposed by subdivision B of section 4 of the act 'shall be paid monthly * * * on or before the fifteenth day of August, 1935, and on or before the fifteenth day of every calendar month thereafter.' Such express provisions of the statute as to when the taxes 'shall be due and payable' are not adjudged to be unconstitutional.

All of the taxes imposed by subdivision A of section 4, and the monthly gross receipts tax imposed by class 1 'upon one store,' a several portion of subdivision B of section 4 of the act, are held to be constitutional; and this court has no authority to suspend or postpone the operation of the valid portions of the statute from the dates in 1935, expressly fixed therein, until February 25, 1936.

The foregoing views are concurred in by Mr. Justice TERRELL and Mr. Justice BROWN, who, with the writer, have reached the conclusion that the injunction granted below should be so modified or dissolved as to permit the terms of chapter 16848, Acts 1935, as construed and upheld to be valid in part by this court, to be enforced as of July 1, 1935, in accordance with its terms. The views of Mr. Justice ELLIS are stated in the separate opinion prepared and filed by him. The views of Mr. Justice DAVIS, which are concurred in by Mr. Justice BUFORD, are set forth in the separate opinion prepared and filed by Mr. Justice DAVIS.

[123 Fla. 206] This court being evenly divided as to instructions or directions that should be given to the circuit court with reference to the orders appealed from, Mr. Justice DAVIS concurs in the conclusion that the injunction granted June 18, 1935, against the enforcement of the act should have been dissolved upon the motion of the state comptroller, and that the cause should now be remanded to the circuit court with specific direction to the chancellor to grant such dissolution.

Order refusing to modify or vacate injunction reversed, with directions to dissolve the injunction as prayed for. Order permitting filing of supplemental and amended bill of complaint affirmed, but without prejudice to assertion of appropriate motions or defenses to same.

TERRELL and BROWN, JJ., concur.

BUFORD and DAVIS, JJ., concur in the conclusion stated.

ELLIS, P.J., dissents.

CONCURRING

DAVIS, Justice (concurring in conclusion stated).

This suit was instituted in the circuit court as an attack upon the validity of Senate Bill No. 724, now chapter 16848, Acts 1935, Laws of Florida. The circuit court rendered an opinion holding the act unconstitutional and void in its entirety, and granted a temporary injunction against its enforcement. That order was not appealed from.

Subsequent to the institution of this suit in the circuit court, certain original proceedings were filed in this court wherein and whereby it was decided that Senate Bill No. 724, supra, was not altogether unconstitutional, but was only unconstitutional in so far as it undertook to impose upon chain

Page 735

stores a graduated gross receipts tax. As a result of such a decision by the Supreme Court, chapter 16848, Acts 1935, Laws of Florida, is now held to be an enforceable law in so far as it provides for the collection [123 Fla. 207] of the taxes specified in section 4, classes 1 to 6, inclusive, subdivision A, and class 1, subdivision B. See State ex rel. Lane Drug Stores v. Simpson, 166 So. 227; State ex rel. Adams v. Lee, 166 So. 249; State ex rel. X-Cel Stores, Inc., v. Lee, 166 So. 262; State ex rel. Cunningham v. Davis, 166 So. 289, opinions filed at the present term of this court.

The appeal now before this court for consideration is from an order granting leave to the complainants below permitting them to file a supplemental and amended bill of complaint in the cause therein pending, wherein the temporary injunction had been granted restraining the enforcement of chapter 16848, supra, as unconstitutional in its entirety. It is also from an order denying a motion by the appellant, comptroller of the state of Florida, to modify the temporary injunction theretofore granted by the circuit court so as to make it conform...

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