Bentley-gray Dry Goods Co. v. City of Tampa

• Citation: 188 So. 758,137 Fla. 641
• Parties: BENTLEY-GRAY DRY GOODS CO. et al. v. CITY OF TAMPA.
• Decision Date: 12 May 1939
• Court: United States State Supreme Court of Florida

188 So. 758

137 Fla. 641

BENTLEY-GRAY DRY GOODS CO. et al. v. CITY OF TAMPA.

Florida Supreme Court, Division A.

May 12, 1939

Suit by the Bentley-Gray Dry Goods Company and others against the City of Tampa for an injunction restraining the enforcement of a license tax ordinance. From an adverse judgment plaintiffs appeal.

Affirmed. Appeal from Circuit Court, Hillsborough County Harrn N. Sandler, judge.

COUNSEL

McKay Macfarlane, Jackson & Ramsey, of Tampa, for appellants.

Alonzo B. McMullen and Ralph A. Marsicano, both of Tampa, for appellee.

OPINION

BUFORD Justice.

The appeal brings for review a final decree, as follows:

'The above cause coming on to be heard upon final hearing and the Court having heard the testimony introduced by the parties to this cause, and having heard argument of counsel for the respective parties, and being otherwise fully advised in the premises, the Court finds that the Plaintiffs and Intervenors have failed to sustain the allegations of the bill of complaint and of the various petitions for intervention, whereupon

'It is ordered, adjudged and decreed:

'(a) That the order entered by this Court on the 15th day of April, A. D. 1938, granting to Plaintiffs and Intervenors an Injunction pendente lite, and the order entered in this cause on the 22nd day of April, A. D. 1938, specially granting an injunction pendente lite to the intervenors J. H. Taylor and P. E. Leak, a co-partnership doing business under the style of and firm name of 'Flagler & Company' and 'Davis-Warner Company', R. D. Ison and James Ison, a co-partnership doing business under the style of and firm name of 'Walker & Company' and C. E. Jarvis and W. L. Van Dyke, a co-partnership doing business under the style of and firm name of 'Mansfield & Harrington', be and the same are hereby vacated and dissolved.

'(b) That the bill of complaint be and the same is hereby dismissed with prejudice as to all parties plaintiff thereto, whether original plaintiffs or subsequent intervenors.

'(c) That the Clerk of the above styled Court be and he is hereby directed to pay over to the defendant, City of Tampa, forty-five days from the date of this decree, the various sums of money deposited in the registry of this Court by the Plaintiffs and Intervenors in this cause, and at such time to deliver to the defendant, City of Tampa, all returns or reports filed with the Clerk coincident with the deposit of such monies.

'(d) That the Clerk of the above styled Court be and he is hereby directed to deliver to the defendant, City of Tampa, forty-five days from the date of this decree, all reports and returns showing basis for computation of license taxes and filed with or attached to the injunction bonds where injunction bonds have been filed by any of the Plaintiffs or Intervenors in this cause.

'(e) The Court further finds that under the evidence in this cause none of the parties plaintiff or subsequent intervenors have shown themselves to be engaged in interstate commerce.

'It is therefore, ordered, adjudged and decreed that Ordinance No. 651-A of the City of Tampa does not impose or seek to impose a tax upon interstate commerce or interstate transactions, and is therefore not invalid upon this ground.

'(f) The Court further finds that under the evidence in this cause it appears that certain of the plaintiffs (Harmon & Hulsey, and others) are engaged in foreign commerce and that such transactions in foreign commerce should not be included in the business or avails of such Plaintiffs upon which the license tax imposed by ordinance No. 651-A is based, but that such transactions are readily severable from the balance of their business.

'It is therefore ordered, adjudged and decreed That as to such Plaintiffs the license tax imposed by said ordinance should be measured by the business or avails of such Plaintiffs respectively after excluding therefrom the business and avails of such Plaintiffs involved in or accruing from any foreign business or imports. So construed the ordinance is valid.'

Appellants have posed six (6) questions for our consideration, as follows:

'1. Quare: Did the City of Tampa have the power under its charter to levy a license tax upon wholesale merchants doing business within said City, based upon their gross sales in the face of the provision appearing in Chapter 18011, Acts of 1937 (1937 License Law) limiting incorporated cities and towns to the imposition of a license tax of the same kind as that prescribed by the Act, namely, a tax based upon the value of stock of merchandise carried by such wholesale merchants?'

'2. Quare: Did the City of Tampa have the authority under its charter, having already levied a license tax upon wholesale merchants, to levy a second, extra and additional license tax upon such wholesale merchants, based upon their gross sales?'

'3. Quare: Did the City of Tampa have the authority under its charter to impose a license tax upon wholesale merchants based upon their gross sales including gross sales of merchandise made by such wholesale merchants outside of the corporate limits of the city to persons residing and having a place of business outside of the corporate limits of the City, where the only transactions with reference to such sales took place in the City, were making out of bills, the receipt of the consideration for the merchandise sold, and the making the necessary book entries to reflect the transaction?'

'4. Quare: Were the plaintiffs, or most of them, engaged in Interstate Commerce and did Ordinance 651-A of the City of Tampa, which imposed a license tax upon wholesale merchants based upon their entire gross sales, impose a tax upon Interstate Commerce in violation of the Federal Constitution?'

'5. Quare: Was the tax imposed upon wholesale merchants by Ordinance 651-A imposing a license tax upon such wholesale merchants based upon their gross sales, arbitrary, unreasonable and discriminatory under all of the circumstances disclosed by the record in this case?'

'6. Quare: Was the Court warranted, in view of the evidence submitted and the questions of Law presented, in entering a Final Decree dissolving the temporary injunction and dismissing the Original and Amended Bills of Complaint?'

The first, second, third and sixth questions were answered by the Chancellor in the affirmative, while the fourth and fifth questions were answered in the negative.

The suit was one seeking injunction against the City of Tampa restraining the enforcement of a license tax ordinance known as Ordinance 651-A.

The Ordinance fixes license taxes for a period of one year. Some of the pertinent features of the ordinance are: The Ordinance contains a schedule of various occupations and the license tax applicable to each and appended to this schedule is a provision to the effect that existing license ordinances are not repealed, but that the license tax imposed by Ordinance 651-A 'shall be deemed as cumulative to any license taxes otherwise imposed' unless the contrary plainly appears.

Section 2 of the Ordinance sets out certain definitions, among which are:

'Wholesale merchant shall mean any merchant who sells to another for the purpose of re-sale.'

'Sale shall mean the transfer of ownership, title or possession, transfer, exchange or barter, whether conditional or otherwise for a consideration.'

'Gross Sales shall mean the gross sales' price at which all sales were made, whether for cash, on time or for credit and shall not contemplate any deductions for any purpose not specifically provided for herein, and shall mean all sales regardless of the ultimate distribution, place of delivery, or purpose of use, of such merchandise.'

Section 3 of the Ordinance contains the following provision:

'Where it is required in this Ordinance that a license tax be based on gross sales or on commissions, it shall be in addition to any license paid under any classifications contained in this or required under any other Ordinance and the gross sales or commissions as used for the determining of such license as required by this Ordinance shall be based on the gross sales of all merchandise sold whether classified licenses are also required or not.'

The Ordinance authorizes inspection of 'the place of business and records of the person required to pay a license' by the Tax Collector or this deputies to the extent necessary to verify any returns.

It requires the filing of returns showing the amount of gross sales within thirty days subsequent to October 1, 1937, makes the failure of any person subject to the terms of the Ordinance to comply therewith an offense, and each day of failure a separate offense, and imposes a penalty of five hundred dollars ($500) or imprisonment for sixty days for each offense.

As to wholesale merchants, the Ordinance provides:

'Merchants--Wholesale. The license tax on every wholesale merchant shall be measured by the amount of gross sales made by such merchant and shall be figured and arrived at as follows:

'Returns shall be made by each wholesale merchant to the City Tax Collector, showing amount of gross sales for the 12 month period ending September 30, 1937, and on each $1,000.00 of gross sales made during the said 12 months period or as otherwise provided herein the license tax shall be . . . $ .60. The foregoing shall be in addition to any other license tax required by any subsection of this schedule or required by any other ordinance. Except that no license tax shall be collected hereafter from wholesale merchants based on the volume or value of the stock carried.'

The Appellant contends:

'First That a large part of the sales made by plaintiffs respectively during the twelve month period ending September 30, 1937, were...