City of Pensacola v. Fillingim

• Decision Date: 02 June 1950
• Citation: 46 So.2d 876
• Parties: CITY OF PENSACOLA v. FILLINGIM et al.
• Court: Florida Supreme Court

Page 876

46 So.2d 876

CITY OF PENSACOLA v. FILLINGIM et al.

Supreme Court of Florida, Division B.

June 2, 1950.

Rehearing Denied June 28, 1950.

F. Churchill Mellen, Pensacola, for appellant.

Grover C. Robinson, Jr., Pensacola, for appellee.

William Fisher, Pensacola, and Ralph A. Marsicano, Tampa, for amici curiae.

SEBRING, Justice.

The City of Pensacola has appealed from an adverse decree rendered in a declaratory judgment suit brought by a taxpayer to determine whether the city may lawfully pledge revenues derived from a cigarette tax imposed pursuant to Chapter 26320, Laws of Florida, Extraordinary Session 1949, for the payment of revenue certificates to finance the construction of a recreational auditorium and pier within the city.

The decree appealed from found and decreed:

'(1) That the tax set forth and described and authorized under Chapter 26320, being Chapter 210, 1947 Cumulative Supplement, Florida Statutes of 1941, is a State Tax and not a Municipal Tax, and that, therefore, the City of Pensacola, a municipal corporation, cannot pledge the credit, income, revenue or tax belonging to the State of Florida, nor any portion thereof which the State of Florida might deliver unto the City of Pensacola under the provisions of said statute.

'(2) * * * that the construction of a Recreational Pier and auditorium of the type described in the testimony presented to this Court in the above cause, is not a proper State nor County function nor does the establishment, maintenance or operation of the same come within the purview of a proper State and County function, and that, therefore, no funds derived by the City of Pensacola, under the provisions of the said statute, may be spent for the purpose of constructing a Recreational Pier and Auditorium.'

We find no error in the holding of the trial court that the construction of the pier and auditorium of the type described in the record is not a proper State or County function.

Section 210.03, Florida Statutes, 1941, F.S.A., as amended by Chapter 26320, Acts Extraordinary Session 1949, empowers any municipality in the State to impose an excise or privilege tax upon the sale, receipt, purchase, possession, consumption, handling, distribution, and use of cigarettes sold or to be sold at retail within the territorial limits of such municipality; but limits the use to be made of the funds realized from the tax as follows:

'(5) Amy funds received under and by virtue of this chapter by municipalities shall be used and expended for the following purposes only, which said purposes are hereby found to be and are hereby designated as state functions and purposes within this state:

'For the future cost, purchase, building, designing, engineering, planning, repairing, reconditioning, altering, expanding, maintaining, servicing and otherwise operating any of the following:

'Streets, bridges, storm sewers, curbs, drains, gutters; water supplies, sanitary facilities and services for the preservation, protection or improvement of the public health and safety, including hospitals, fire stations and fire fighting equipment, sanitary sewers, sewerage disposal systems, sewerage disposal plants and facilities, garbage and refuse collection and disposal services, facilities and equipment, incinerators and other facilities and...