Gaulden v. Kirk

• Decision Date: 07 July 1950
• Citation: 47 So.2d 567
• Parties: GAULDEN v. KIRK.
• Court: Florida Supreme Court

Page 567

47 So.2d 567

GAULDEN v. KIRK.

Supreme Court of Florida, en Banc.

July 7, 1950.

Rehearing Denied July 31, 1950.

J. Tom Watson, Tampa, Sumter Leitner, Tallahasse, and Samuel H. Adams, West Palm Beach, for appellant.

Richard W. Ervin, Attorney General, Fred M. Burns, Assistant Attorney General, Francis C. Millican and Clyde G. Trammell, Jr., Special Assistant Attorneys General, for appellee.

HOBSON, Justice.

On the 19th day of November, 1949, a warrant of arrest charging appellant, L. S. Gaulden, with certain violations (hereinafter specifically detailed) of the provisions of Chapter 26319, Acts of Special Session 1949, F.S.A. § 212.01 et seq., known as The 'Florida revenue act of 1949', was served upon Gaulden. He was taken in custody by the Sheriff of Palm Beach County, and placed under arrest by said sheriff, being deprived of his liberty thereby.

On the 25th day of November, 1949, Gaulden filed in the Circuit Court of Palm Beach County his petition for writ of habeas corpus against this arrest.

The writ issued on the 28th day of November, 1949, pursuant to order of the Circuit Judge dated the same day. Proper notices of the hearing held under said petition before the Circuit Judge, Honorable C. E. Chillingworth, were given to all parties entitled thereto.

The Court, in and by its order from which this appeal was prosecuted, held Chapter 26319, Laws of Florida 1949 constitutional as against the attack made upon said law by appellant and remanded Gaulden to the custody of the Sheriff pending further action pursuant to the warrant of arrest. Subsequently the Circuit Judge made and entered an order permitting this appeal.

The State Legislature, at its 1949 extraordinary session, enacted said Chapter 26319, Laws of Florida, Acts of 1949, which statute among other things declared it to be 'the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing or letting any living quarters, sleeping or housekeeping accommodations' for the exercise of which privilege the said enactment levies a privilege tax in an 'amount equal to three per cent of and on the * * * rental charged for such * * * accommodations by the person charging or collecting the rental.' Section 3-a of the act, F.S.A. § 212.03(1). The said enactment further requires that the person charging or collecting the said rental pass the same on to the lessee, Section 7-a of the Act, F.S.A. § 212.07, and that he also keep suitable records of such rentals and taxes, Section 12-f of the Act, F.S.A. § 212.12, and makes it a misdemeanor for any lessor to fail to pass the said tax on to the lessee, Section 7-c of the Act, or to fail or refuse to keep suitable records thereof, Section 12-g of the Act.

The affidavit, upon which the warrant was predicated, charged appellant with violating the so-called 'Sales Tax' Act in that the said Gaulden 'has since November 1st A.D. 1949, and continuously from thence hitherto, failed and wilfully refused to keep' the records required of him by said Chapter 26319, and 'has refused to collect the said tax so levied by said Act upon said rentals, and refuses to perform the duties upon him imposed by said Act.'

Epitomized, the affidavit and warrant accused the appellant of wilfully, knowingly and intentionally:

(1) Failing and refusing to collect the excise tax imposed by Section 3, Chapter 26319, Laws of Florida, Acts of 1949, from persons leasing or renting temporary living quarters, sleeping or housekeeping accommodations from the appellant; and

(2) Failing and refusing to keep, or cause to be kept, the books and records required of him under and pursuant to said Chapter 26319.

It is the contention of appellant that the Sales Tax Law violates the following sections of the State and Federal Constitutions:

Florida Declaration of rights, F.S.A.

Sections 1, 12, 16, 17, 22.

Florida Constitution, F.S.A.

Article II.

Article III--Sections 1, 16, 17, 18, 20, 21, 30.

Article IV--Section 8.

Article VIII--Sections 6, 7.

Article IX--Sections 1, 2, 3, 5, 11, 16.

Article XVI--Sections 2, 3, 4, 7, 11.

U. S. Constitution

Article I--Section 8, Regulation of commerce among states.

Article IV--Section 2.

Amendment to U. S. Constitution

Article XIV--Section 1.

Counsel for appellant set out the following specific points upon which they rely to support their position that the law here under attack is unconstitutional:

'1. The Revenue Act of 1949 did not create an excise tax; it did create a state property tax; but as either it is invalid. It violates the constitutional plan for state taxation.

'2. Section 24 of the Sales Tax Law, which pretends to make the effective date of the Act November 1, 1949, but actually makes such effective date dependent upon the passage and validity of two other separate Acts of the Legislature, in legal effect makes the Revenue Act as to its effective date contingent, revokable, and delegated in its finality, resulting in an ineffective effort by the Legislature to enact the law; and this Sales Tax Law integrated as it is with these two separate laws, embraces more than one subject, without proper title.

'3. The unlimited and arbitrary discretions accorded the Comptroller in the Act, together with the various delegations of legislative authority provided for in it, make the law unconstitutional.

'4. The exemptions accorded by the Act are so varied, unreasonable, discriminatory, and arbitrary that no uniform or equal system of trxation is provided by the Act, nor is it an act that metes out a tax imposition that provides for just valuation or nondiscriminating application.

'5. This Sales Tax Law creates a debt and commands another to pay it, and creates a debt with imprisonment imposed as a penalty for its non-payment, and provides for a system of tax assessing and collecting through means and channels that in each and every instance are unconstitutional.

'6. This law denies due process, and due compensation and immunities granted by the state and federal constitutions, and imposes unreasonable burdens on interstate commerce.'

As we approach the question of the constitutionality of the Florida Revenue Act of 1949 we deem it appropriate to keep constantly in mind several well established principles. Those which should receive special emphasis are: the power to enact tax laws is inherent in the state as an attribute or characteristic of government; American Can Co. v. City of Tampa, 152 Fla. 798, 14 So.2d 203; Fleischer Studios v. Paxson, 147 Fla. 100, 2 So.2d 293; State ex rel Hurner v. Culbreath, 140 Fla. 634, 192 So. 814; St. Lucie Estates v. Ashley, 105 Fla. 534, 141 So. 738; Amos v. Mathews, 99 Fla. 1, 126 So. 308; Hunter v. Owens, 80 Fla. 812, 86 So. 839; the State Constitution is not a grant of authority to tax but rather it is a limitation upon the exercise of this innate sovereign power, Gray v. Winthrop, 115 Fla. 721, 156 So. 270, 94 A.L.R. 804; Anderson v. City of Ocala, 83 Fla. 344, 91 So. 182; Cheney v. Jones, 14 Fla. 587; every presumption is in favor of the constitutional validity of an act of the legislature, Shad v. DeWitt, 158 Fla. 27, 27 So.2d 517; Fowler v. Turner, 157 Fla. 529, 26 So.2d 792; Saunders v. City of Jacksonville, 157 Fla. 240, 25 So.2d 648; Nichols v. Yandre, 151 Fla. 87, 9 So.2d 157, 144 A.L.R. 1351; Haddock v. State, 141 Fla. 132, 192 So. 802; Klemm & Son v. City of Winter Haven, 141 Fla. 60, 192 So. 652; Mayo v. Texas Co., 137 Fla. 218, 188 So. 206; Snively Groves v. Mayo, 135 Fla. 300, 184 So. 839; Williams v. City of Jacksonville, 118 Fla. 671, 160 So. 15, 98 A.L.R. 513; Coen v. Lee, 116 Fla. 215, 156 So. 747; City of Sebring v. Wolf, 105 Fla. 516, 141 So. 736; State ex rel. Howarth v. Jordan, 105 Fla. 322, 140 So. 908; Gray v. Central Florida Lumber Co., 104 Fla. 446, 140 So. 320, 141 So. 604; State ex rel. Gillespie v. Thursby, 104 Fla. 103, 139 So. 372, 140 So. 775; State v. Goodgame, 91 Fla. 871, 108 So. 836, 47 A.L.R. 118; State ex rel. Clarkson v. Philips, 70 Fla. 340, 70 So. 367; Ann.Cas.1918A, 138; Peninsular Industrial Ins. Co. v. State, 61 Fla. 376, 55 So. 398; State ex rel. Attorney General v. Green, 36 Fla. 154, 18 So. 334; Mathis v. State, 31 Fla. 291, 12 So. 681; the burden is upon one who challenges the constitutionality of a law to make its invalidity clearly apparent, Robinson v. Florida Dry Cleaning & Laundry Board, 141 Fla. 899, 194 So. 269; Mayo v. Texas Co., 137 Fla. 218, 188 So. 206; State ex rel. Landis v. Prevatt, 110 Fla. 29, 148 So. 578; Spencer v. Hunt, 109 Fla. 248, 147 So. 282; State ex rel. Davis v. Rose, 97 Fla. 710, 122 So. 225; Neisel v. Moran, 80 Fla. 98, 85 So. 346; one will not be heard to question the constitutionality of a legislative enactment except insofar as he may be able to show that it adversely affects him. See State ex rel. McClure v. Sullivan, Fla., 43 So.2d 438 and cases therein cited. See also Lykes Bros. Inc. v. Board of Commissioners of Everglades Drainage District, Fla., 41 So.2d 898.

In support of their contention that the Revenue Act of 1949 did not create an excise tax but that it did establish a state property tax, counsel for appellant assert that a tax is a property tax if the law which ordains it has the raising of revenue as its primary purpose or object. They cite our opinion in the case of American Can Co. v. City of Tampa, 152 Fla. 798, 14 So.2d 203, as authority for this position.

We squarely face the fact that the Florida Revenue Act of 1949 had the raising of revenue as its principal purpose and objective. However, we do not agree with counsel that every tax created by an act of the legislature for the purpose of raising revenue is by virtue of that fact alone a property tax within the meaning of the words 'real or personal property' in Article IX, Section 2 of our Constitution. The definition of a property tax proposed by counsel for appellant is too narrow and restrictive.

They consider a license tax as the only type of tax...