Florida Packing & Ice Co. v. Carney

• Decision Date: 18 April 1905
• Citation: 38 So. 602,49 Fla. 293
• Court: Florida Supreme Court
• Parties: FLORIDA PACKING & ICE CO. v. CARNEY, Tax Collector.

38 So. 602

49 Fla. 293

FLORIDA PACKING & ICE CO. v. CARNEY, Tax Collector.

Florida Supreme Court, Division B.

April 18, 1905

Appeal from Circuit Court, Marion County; William S. Bullock, Judge.

Bill by the Florida Packing & Ice Company against E. L. Carney, tax collector. Decree for defendant, and plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. A court of equity will never interfere to restrain by injunction a levy upon and sale of personal property, unless the same is of such peculiar and intrinsic value to the owner that its loss cannot be compensated adequately in damages. The ordinary remedy in such cases is at law by an action of trespass, or other appropriate remedy in the courts of law.

2. Where it is apparent to an appellate court upon the face of a bill that it does not state a case cognizable in a court of equity, it will dismiss such bill for want of equity, even though the question of equitable jurisdiction was not presented by the pleadings or raised before the appellate court.

COUNSEL R. L. Anderson, for appellant.

W. H Ellis, Atty. Gen., for appellee.

OPINION

TAYLOR, P.J.

The appellant filed its bill in equity in the circuit court of Marion county against the appellee as tax collector of said county, alleging, in substance, that said defendant, as such tax collector, had levied upon certain enumerated personal property of the complainant to enforce the collection of the license tax imposed upon wholesale dealers in fresh meats by section 16, p. 9, of chapter 5106 of the Laws of Florida of 1903. The bill alleges that the complainant never did at any time deal at wholesale in fresh meats, but deals exclusively in meat that has been cured by being salted, pickled, smoked etc., and that the complainant is not, therefore, subject to the tax for the collection of which said levy was made. The bill prays that the provisions of the law aforesaid may be adjudged to be inapplicable to the business engaged in by complainant, and that it cannot be lawfully required to pay the license tax thereby imposed. The bill also prays that the defendant be enjoined from ever seizing, levying upon holding, advertising, or selling any of its property, or from attempting so to do, in satisfaction of said tax, and from collecting or attempting to collect such tax.

The defendant demurred to said bill substantially upon the following grounds: (1) That said bill is without equity. (2) That said complainant has not by said bill shown itself to be entitled to the relief there prayed. (3) Because it appears from the facts set forth in said bill that the complainant is liable for the tax, the collection of which is sought by the bill to be enjoined. (4) Because it appears that the complainants were and are wholesale dealers in fresh meats packed or refrigerated, within the meaning of section 16, p 9, c. 5106, Laws of Florida of 1903, and is liable to the tax imposed by said section. (5) Because the bill states a conclusion of law inconsistent with the facts given.

The court below, in its ruling upon the demurrer, ignored those grounds thereof that questioned the equity of the bill, ans sustained said demurrer upon the ground that under the allegations of the bill the complainant was a wholesale dealer in fresh...