Green v. City of Pensacola

• Decision Date: 10 February 1959
• Docket Number: No. A-394,A-394
• Citation: 108 So.2d 897
• Parties: Ray E. GREEN, as State Comptroller of Florida, Appellant, v. CITY OF PENSACOLA, a municipal corporation, created by the law of Florida, Roy S. Philpot, Mayor, Clyde E. Miller, Jr., J. J. Banfell, J. N. Jolly, C. E. Erickson, E. P. McCullough, T. P. O'Gara, Henry E. McLaughlin and M. L. Mundy, as members of the City Council, and J. E. Frenkel, as City Clerk-Comptroller of the City of Pensacola, Appellees.
• Court: Florida District Court of Appeals

Page 897

108 So.2d 897

Ray E. GREEN, as State Comptroller of Florida, Appellant, v. CITY OF PENSACOLA, a municipal corporation, created by the law of Florida, Roy S. Philpot, Mayor, Clyde E. Miller, Jr., J. J. Banfell, J. N. Jolly, C. E. Erickson, E. P. McCullough, T. P. O'Gara, Henry E. McLaughlin and M. L. Mundy, as members of the City Council, and J. E. Frenkel, as City Clerk-Comptroller of the City of Pensacola, Appellees.

No. A-394.

District Court of Appeal of Florida, First District.

Feb. 10, 1959.

Rehearing Denied March 2, 1959.

Richard W. Ervin, Atty. Gen., and T. Paine Kelly, Asst. Atty. Gen., for appellant.

F. Churchill Mellen and Watson & Watson, Pensacola, for appellees.

WIGGINTON, Judge.

The Attorney General petitioned for a writ of mandamus in the name of the State on the relation of the Comptroller against the City of Pensacola. The alternative writ sought to require payment of a gross receipts tax on natural gas sold by the city to its inhabitants during the year 1955, and levied by the Comptroller as evidenced by his duly recorded warrant.

The writ alleged that the city had refused to pay the tax imposed by law ¹ on the ground that it was exempt therefrom under the provisions of a special act of the Legislature. ² It was further alleged that the exemption act is unconstitutional, void and of no effect. From an order quashing the writ and dismissing the petition, the Comptroller appealed to the Supreme Court.

The order appealed from is predicated upon the recited conclusion that the Comptroller had failed to allege facts sufficient to demonstrate his entitlement to the relief sought. This conclusion had for its support a finding by the court that the allegations failed to show (a) that the Comptroller would be injured in his person, property or rights by the exemption statute which he sought to attack on constitutional grounds; (b) that he would be required thereby to disburse public funds; or (c) that he had otherwise satisfied the requirement that there be before the court a party with a substantial right or interest adversely affected by enforcement of the questioned statute.

On this state of the record the Supreme Court found and held that its jurisdiction had been improvidently invoked inasmuch as the order appealed from had not directly passed upon the constitutionality of the exemption statute mentioned in the alternative writ. ³ Accordingly, an order was entered transferring the appeal to this court for consideration of the procedural question involved. ⁴

We emphasize at the outset that the constitutionality of the special act on which the city relies will not be determined on this appeal. That matter was not directly passed upon by the trial court and is not a proper subject for review here.

The sole issue presented for our consideration is whether the petition alleged sufficient facts to constitute the Comptroller a proper party legally entitled to question the constitutionality of the exemption statute mentioned therein. The trial court held that it did not, and it is upon this ruling the Comptroller contends error.

F.S. Chapter 203, F.S.A., imposes an excise tax upon the gross receipts derived from the sale of natural gas for light, heat or power; requires that an annual report be made showing the total gross receipts realized from such sale during the preceding year, and that payment be made to the Comptroller in the sum of $1.50 on each $100 of the gross receipts therefrom. If no report is made, it is provided that the Comptroller shall, after notice, estimate the amount of tax due and proceed to collect same, together with all costs and penalties. It is also provided ⁵ that if a tax is not paid when due, the Comptroller may issue a warrant commanding the sheriffs of the state to levy upon and sell property of the person liable for payment. It is further provided that a copy of such a warrant may be filed with the Clerk of the Circuit Court of the county and, when recorded, shall become a lien against the property of the taxpayer in the same manner and to the same extent as a duly recorded judgment. The alternative writ alleged compliance with all of the acts required of the Comptroller by the foregoing statutes and this procedure has not been challenged.

The City contends that the Comptroller is without authority of law to assess the gross receipts tax against it for the reason that the special act of the Legislature exempts it therefrom, and that this act is presumptively valid since its constitutionality has never been passed upon by any court of competent jurisdiction. It is the city's position that the Comptroller has no standing to question the constitutionality of the exemption act for the reason that the immunities accorded thereunder in no way affect the Comptroller in his person, property or other material rights.

The landmark case in this jurisdiction on the question here presented is that of State ex rel. Atlantic Coast Line Railway Company v. State Board of Equalizers. ⁶ It was there held that every law duly enacted by the Legislature is presumptively constitutional until declared otherwise by a court of competent jurisdiction, and that ministerial officers must obey such until the constitutionality thereof is judicially passed upon in a proper proceeding. The attempt by a ministerial officer of the executive department to nullify an enactment of the legislature under the guise of observing his oath of office to support the Constitution, has been consistently rejected by an unbroken line of decisions rendered by our Supremem Court. ⁷ Generally, a court will not listen to an objection made to the constitutionality of a statute unless the objecting party can show that he will be injured in his person, property or other material right by virtue of the statute in question. ⁸

Under the Constitution of this state the Comptroller is charged with the duty of examining, auditing, adjusting and settling the accounts of all officers of the state and the performance of such duties as may be prescribed by law. ⁹ F.S. Chapter 203, F.S.A., requires the Comptroller to collect from every municipality an excise tax on the gross receipts received by them from the sale of natural gas for light, heat or power. The Comptroller has attempted to...