Florida Sugar Distributors, Inc. v. Wood

• Decision Date: 23 November 1938
• Citation: 135 Fla. 126,184 So. 641
• Parties: FLORIDA SUGAR DISTRIBUTORS, Inc., et al. v. WOOD, Tax Collector.
• Court: Florida Supreme Court

184 So. 641

135 Fla. 126

FLORIDA SUGAR DISTRIBUTORS, Inc., et al. v. WOOD, Tax Collector.

Florida Supreme Court, Division B.

November 23, 1938

Suit by Florida Sugar Distributors, Incorporated, a corporation organized and existing under the laws of Florida, and others against Hayes Wood, as Tax Collector in and for Dade County State of Florida, for injunction restraining defendant from enforcing provision of Acts 1937, c. 18011, § 5, imposing on wholesalers an additional license tax of $1.50 for each $1,000 of their stock of merchandise kept by them for sale. From an order sustaining a motion by the defendant and dismissing the bill of complaint, the plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

Emmett C. Choate, of Miami, for appellants.

Melbourne L. Martin, of Miami, and H. O. Pemberton, of Tampa, of appellee.

OPINION

BROWN Justice.

This is an appeal from an order made by Hon. H. F. Atkinson, Senior Judge of the Eleventh Judicial Circuit, sustaining a motion interposed by the defendant tax collector and dismissing a bill of complaint which had been filed by a number of wholesale merchants seeking to enjoin the defendant tax collector from enforcing that provision of Section 5 of Chapter 18011 of the Laws of 1937 which imposes upon wholesalers an additional license tax of $1.50 for each $1000 of their stock of merchandise kept by them for sale.

The main contention of appellants is that the provision of the statute above referred to is unconstitutional in that it violates section 1 of Article 9 of the constitution by imposing an additional ad valorem tax upon personal property. This contention is based upon the theory that the tax thus imposed by the statute is not in reality a license or excise tax, but is an ad valorem property tax. The respondent tax collector denied the correctness of this contention and the lower court agreed with him, and dismissed the bill. Our view is that in so ruling the lower court was correct.

Section 5 of said Chapter 18011 reads as follows:

'Section 5. Every person engaged in the business of trading, buying, bartering, serving, or selling tangible personal property as owner, agent, broker, or otherwise, shall pay a license tax of $25.00, (which shall entitle him to maintain one place of business, stationary or movable) and shall pay $25.00 for each additional place of business, provided that the said twenty-five dollar license tax shall not be required for any place of business licensed under the provisions of Chapter 16848, Laws of Florida, Acts of 1935. Wholesalers and others who do not pay a license tax calculated wholly or in part on gross receipts from their sales and who keep a stock of merchandise for sale shall pay an additional tax of $1.50 for each thousand dollars of their stock of merchandise, (other than petroleum products). Vehicles used by any person for the sale and delivery of tangible personal property at wholesale from his established place of business on which a license is paid, shall not be construed to be separate places of business and no license may be levied on such vehicles or the operator thereof as salesmen or otherwise, by the State or any County or Municipality, any other law to the contrary notwithstanding.

'No license shall be required under this Section, where the trading, buying bartering, serving or selling of tangible personal property is a necessary incident of some other business classification for which an occupational license is required by this Act or other law of this State, and is carried on at the place of Business licensed under such other classification, (nor shall this Section apply to any person engaged exclusively in the sale at retail of gasoline and other petroleum products.)'

Section 29 of the same Act provides that whenever the amount of a license tax is based wholly or in part on the value of the stock of merchandise maintained, the value to be used in calculating the amount of license tax shall be the maximum value of merchandise maintained at any time during the preceding year, or reasonably expected to be maintained during the period for which the license is to be issued, whichever value shall be the greater. This provision indicates that the tax is not upon specific property, but that the value of the stock of merchandise is merely the basis for computing the amount of the license tax.

And it will have been noted that Section 5 indicates this by imposing the tax on wholesalers 'who keep a stock of merchandise for sale.' The tax thus is an excise tax upon the use for which the merchandise is kept rather than a tax upon the merchandise itself.

This is further indicated by Section 32 of the Act which provides that whenever any person is subject to the payment of the license tax provided by the Act and fails to pay the same, the proper officer may issue a warrant for the levy and sale of any real or personal property owned by the person liable for the tax within his jurisdiction, for the amount of the tax and the cost of executing the warrant, and that the officer issuing the warrant may file a copy of the warrant with the Clerk of the Circuit Court of the County, whereupon the amount of the warrant shall become a lien upon the title and interest, legal or equitable in any property, real, personal or mixed, of the person against whom the warrant is issued.

The theory upon which this provision of section 5, here attacked, is based is not entirely new in this State. In 1915 the legislature provided, by chapter 6923, that merchants, druggists and store-keepers should pay a license tax, for the first thousand dollars of stock of merchandise or fraction thereof, $3 in each county and for each place of business, and $1.50 per thousand for each additional thousand or fraction thereof, but that dealers at wholesale only should pay $1.50 for each one thousand dollars of their stock of merchandise. This statute was carried forward as section 1197 of Comp.Gen.Laws of 1927. Its constitutionality does not appear to have been attacked.

Also the chain store act of 1931, Ex.Sess., chapter 15624, had a similar provision, following the graduated license tax, from $5 per store to $50 per store according to the number of stores in each chain, which read as follows: 'In addition to the above amounts, Three Dollars for each and every One Thousand Dollars of value of stock carried in each store for sale in such store.' Section 5. Although the validity of the graduated tax provision of this act was very vigorously attacked, no attack appears to have been made in this Court on the particular provision above quoted. See Liggett Company et al. v. Amos, 104 Fla. 609, 141 So. 153. There was a reference to this feature of the act, however, on appeal to the United States Supreme Court. The seventh headnote to the case of Liggett Company v. Lee, 288 U.S. 517, 53 S.Ct. 481, 77 L.Ed. 929, 85 A.L.R. 699, reads as follows: 'A statute imposing for the privilege of operating a retail store a tax upon each thousand dollars of value of the stock of goods carried in each store, or for sale therein, at a higher rate than is imposed in respect to stocks of goods carried by wholesale merchants, does not violate the equal protection clause of the Fourteenth Amendment [U.S.C.A.Const. Amend. 14].'

It has long been held in this State that the levy of an ad valorem tax upon property and also a license or occupation tax upon the use of the same property is not double taxation; that a license fee is not a tax within the meaning of section 1 of Article 9 of the Constitution requiring uniformity of rates and just valuations of property for purposes of taxation. Jackson v. Neff, 64 Fla. 326, 60 So. 350; Hiers v. Mitchell, 95 Fla. 345, 116 So. 81; State ex rel. Goodwin v. Milburn, 118 Fla. 211, 158 So. 884.

It must be borne in mind that Section 5 of Chapter 18011 does not levy a tax upon the stock of merchandise maintained, but levies a tax for each thousand dollars of stock of merchandise kept for sale. That the tax so imposed is a license or excise tax, as it is denominated in the act, is we think clearly shown by a consideration of our own decisions, making it unnecessary for us to rely upon the decisions in other jurisdictions.

See Jerome H. Sheip & Co. et al. v. Amos, 100 Fla. 863, 130 So. 699; City of DeLand v. Fla. Public Service Co., 119 Fla. 804, 161 So. 735, and C. V. Floyd Fruit Co. et al. v. Florida Citrus Commission et al., 128 Fla. 565, 175 So. 248, 112 A.L.R. 562. In the case first cited, the Sheip Case, it was held that a tax imposed upon the storage of certain petroleum products in this State was not a direct property tax, but was an excise tax upon the privilege of storing gasoline, and hence a tax expressly sanctioned by section 5 of Art. 9 of the constitution. In the opinion in that case, the case of Dawson v. Kentucky Distilleries Co., 255 U.S. 288, 41 S.Ct. 272, 65 L.Ed. 638, and several other cases cited by counsel for appellants in this case, were discussed and distinguished from the case there under consideration.

In the Floyd Fruit Company Case, this court held that a tax imposed by stat...