City of De Land v. Florida Public Service Co.

• Decision Date: 21 May 1935
• Citation: 119 Fla. 819,161 So. 740
• Parties: CITY OF DE LAND v. FLORIDA PUBLIC SERVICE CO.
• Court: Florida Supreme Court

161 So. 740

119 Fla. 819

CITY OF DE LAND v. FLORIDA PUBLIC SERVICE CO.

Florida Supreme Court

May 21, 1935

En Banc.

Suit by the Florida Public Service Company against the City of De Land. Decree for complainant, and defendant appeals.

Affirmed. Appeal from Circuit Court, Volusia County; M G. Rowe, Judge.

COUNSEL

Hull Landis & Whitehair and D. C. Hull, all of De Land, for appellant.

J. E Futch and Scarlett & Futch, all of De Land, and E. W. & R. C. Davis, of Orlando, for appellee.

OPINION

DAVIS Justice.

This is a companion case to that of City of De Land v. Florida Public Service Co., 161 So. 735, just decided. The court below perpetually enjoined a revenue ordinance of the city of De Land levying a 5 per cent. gross receipts tax on sales of natural or manufactured gas, and on telephone service, with a provision in the ordinance to the effect that the tax so imposed should in no case be passed on by the seller to the consumer and collected from the consumer, and that, in addition thereto, no seller of gas or telephone service in the city of De Land should at any time increase the rates then in effect and being charged to consumers in the city of De Land for such gas and/or telephone service.

The ordinance so enjoined was as follows:

'An Ordinance Levying a Tax on Sales of Gas (Natural or manufactured) and Telephone Service, Providing for the Collection of such Tax and Prescribing Penalties for the Violation of the Provisions of such Ordinance.

'Be It Ordained by the City Commission of the City of DeLand:

'Section 1. That there is hereby levied by the City of DeLand, on each and every sale in said City of Gas (natural or manufactured) or telephone service, a tax equal to five per cent of the charge made by the seller of such gas or telephone service, as the case may be, which tax shall in every case be paid by the seller to the City of DeLand not less often than monthly.

'Section 2. That each and every seller of gas (natural or manufactured) or telephone service, in respect of sales of which a tax is hereby levied, shall keep complete records showing all sales of gas (natural or manufactured) or telephone service in said City, which records shall show the price charged upon each sale, the date thereof and the date of payment thereof, and shall at all reasonable times be open for inspection by the duly authorized agents of said City, who shall have authority to make such transcripts thereof as they may desire.

'Section 3. That the tax hereby levied on sales of gas (natural or manufactured) and telephone service, shall apply to all sales of gas (natural or manufactured) and telephone service, whether delivered through the medium of a meter or other measuring device, or otherwise, to premises located in the City of DeLand.

'Section 4. That in all cases where the seller of gas (natural or manufactured) or telephone service, collects the price thereof at monthly periods, the tax hereby levied shall be computed on the aggregate amount of sales to each consumer during such period, provided that the amount of tax to be paid to the City shall be the nearest whole cent to the amount computed.

'Section 5. That the tax hereby imposed shall apply to sales of gas (natural or manufactured) and telephone service, to the City of DeLand, to the same extent as in the case of any other consumer of gas (natural or manufactured) or telephone service.

'Section 6. That the tax hereby imposed shall be paid by the seller to the treasurer and collector of said City monthly, in the manner following: on or before the 15th day of each month, the seller shall report in writing under oath, to the City Manager of said City of DeLand, an itemized list of all consumers of gas (natural or manufactured) or telephone service, as the case may be, in the City of De Land, giving in each instance the amount paid by each consumer of gas (natural or manufactured) or telephone service, in said City for the preceding month, together with all amounts paid for gas (natural or manufactured) or telephone service, used during the preceding months which were unpaid at the time of rendering previous reports, and said seller, at the respective times of rendering such monthly reports shall in each such case pay to the treasurer and collector of said City the amount shown to be due the City by said report, and the treasurer and collector of said City shall issue receipt therefor.

'Section 7. That any seller of gas (natural or manufactured) or telephone service, or any person, persons, firm or corporation, or any officer, agent or representative of any person, persons, firm or corporation, wilfully failing or refusing to pay the tax hereby imposed, or violating any of the provisions

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