Greenleaf & Crosby Co., Inc. v. Coleman

• Decision Date: 22 December 1934
• Parties: GREENLEAF & CROSBY CO., Inc., et al. v. COLEMAN, Sheriff, et al.
• Court: Florida Supreme Court

158 So. 421

117 Fla. 723

GREENLEAF & CROSBY CO., Inc., et al. v. COLEMAN, Sheriff, et al.

Florida Supreme Court

December 22, 1934

En Banc.

Suit by the Greenleaf & Crosby Company, Incorporated, and others against D. C. Coleman, as Sheriff of Dade County, Florida and others. From an order adverse to plaintiffs, they appeal.

Affirmed in part, and reversed in part. Appeal from Circuit Court, Dade County; Uly O. Thompson, judge.

COUNSEL

J Harvey Robillard, of Miami Beach, for appellants.

Cary D Landis, Atty. Gen., and H. E. Carter and J. V. Keen, Asst. Attys. Gen., for appellees.

A. Frank Katzentine, W. Sanders Gramling, and Loftin, Stokes & Calkins, all of Miami, Sabel & Reinstine, of Jacksonville, and Lambdin & Ramseur, of St. Petersburg, as amici curiae.

OPINION

BUFORD Justice.

Appellants exhibited their bill of complaint in the circuit court in and for Dade county, Fla., to enjoin and restrain the defendants from enforcing the provisions of chapter 14528, Laws of Fla. 1929, against the complainants, and from collecting the tax which was demanded under the provisions of that act, and from levying upon and selling any of the property of the complainants, or interfering in any manner with the complainants in the prosecution of their business for which the license tax was demanded.

A hearing was had after notice and restraining order was granted. Motion to dismiss the bill of complaint was filed, as was also motion to strike parts of the bill of complaint. Thereafter, on the 20th day of July, 1934, the court made an order as follows:

'This cause coming on this day to be heard upon the joint and several motion to strike certain parts of the bill of complaint and upon the joint and several motion to dismiss the bill of complaint, and the Court having heard argument of counsel for the respective parties, and having considered what order should now be entered herein, the Court finds:

'First. That chapter 14528, Laws of Florida, Acts of 1929, is a valid statute and is not in conflict with the Constitution of the United States of America or the Constitution of the State of Florida.

'Second. That said Act does not create an arbitrary or unreasonable classification.

'Third. That said Act does not deprive the plaintiffs, or either of them, of their liberty or property without due process of law.

'Fourth. That said Act does not deny to the plaintiffs, or either of them, equality before the law.

'Fifth. That the license taxes fixed by the Act are not arbitrary or oppressive or unreasonable in amounts, and do not tend to create a monopoly.

'Sixth. The following named plaintiffs under the allegations of the bill of complaint are 'Itinerant Merchants' within the terms of the Act, to-wit: Madam Mogabgab, J. & J. Slater, Inc., Peck & Peck, Inc., Gattle's Inc., Anna McGee, Agnes Diamond, Jay-Thorpe, Inc., Kerge's, Inc., Charvit & Fils, Inc., Emile C. Schmidt doing business as E. Schmidt & Co., Franjean Linen Co., Inc., Sarah Weinstock, Neva C. Taylor, Inc., Milgrims, Inc., C. E. Strausenbach, Herman Gordon and Simon Wolff, partners doing business as Gordon, Cesar Sabbagh, Minnie Clapp Schwartz doing business as The Blue Hat Shop, George Farkas doing business as Helena Rubinstein Co., I. Miller doing business as Miami Beach Bootery, Charles Pellar, doing business as Pellar Berry, Tunis & Rosenfeld, Louis Jurick doing business as Jurick Modes, Darrah & Darrah, Frank Brothers Footwear, Inc., Trabert & Hoeffer, Inc., Boue Souers, Inc., and Sylvia S. Herr doing business as Roney Plaza Yarn Shop.

'It is thereupon, upon consideration hereof, ordered, decreed and adjudged as follows:

'First. That because there is equity in the bill of complaint as to the plaintiffs, Greenleaf & Crosby Co. Inc., Nannette E. Paine, Victor Reich, John P. Lawrie, Minna Lee, Inc., Madeline Friedlen doing business as Mountain Home Shop, Ada S. MacCarroll, Pauline Burdine, inc., Di Pinna, a corporation, and Anne Wrigley, the motion to dismiss the bill of complaint be, and the same is hereby denied;

'Second. That the joint and several motions to strike certain parts of the bill of complaint be, and the same is hereby granted except as to the plaintiffs, Greenleaf & Crosby Co., Inc., Nannette E. Paine, Victor Reich, John P. Lawrie, Minna Lee, Inc., Madeline Friedlen doing business as Mountain Home Shop, Ada S. MacCarroll, Pauline Burdine, Inc., Di Pinna, a corporation, and Anne Wrigley, and as to said named defendants the motion be, and the same is hereby denied.

'Third. That the plaintiffs be, and they are hereby severally allowed thirty (30) days from the date of this order to file such amendments to the bill of complaint or other pleadings as they may be advised.

'Done, ordered and decreed in Chambers at Miami, Florida, this 20th day of July, A. D. 1934.

'Uly O. Thompson, Circuit Judge.'

From this order appeal was taken.

The two questions presented for our determination are correctly stated by the appellee as follows:

'Is a person who engages in a seasonal mercantile business in Florida during a certain season or part of the year, and who closes his place of business for the remainder of the year, and who does not leave in his place of business during the time when it is closed, his goods, wares or merchandise, an 'Itinerant Merchant' within the terms of chapter 14528, Laws of Florida, Acts of 1929?

'Is the classification made by chapter 14528, Laws of Florida, Acts of 1929, of merchants who severally do a seasonal business in Florida during a certain season of the year and who do not leave their merchandise in their respective places of business during the time they are closed, as 'itinerant merchants', so arbitrary and unreasonable as to amount to the taking of property without due process of law, or to a denial of the equal protection of the laws in violation of the fourteenth amendment of the Federal Constitution?'

Chapter 14528, Laws of Florida, Acts of 1929 [Ex. Sess.], is entitled:

'An Act To Impose Special License Tax Upon the Business Conducted by Itinerant Merchants in the State of Florida and Providing for the Collection of Such Tax and the Enforcement of the Same.'

Section 1 of the act defines the term 'Itinerant Merchant' and is as follows:

'That the term 'Itinerant Merchant' shall be construed to mean any person who engages in this State in a seasonal business during certain seasons of the year only, of selling or offering for sale goods, wares or merchandise, but shall not apply to merchants having a permanent place of business in this State throughout the year who engage in business therein only for a portion of the year.

'The term 'Place of Business' as used in this Act shall include all stores and shops of every kind and description, wherein there shall be kept for sale, or to be offered for sale any goods, wares or merchandise or other subjects of bargain whatsoever of portable character.

'The term 'Person' as used in this Act shall be construed and held to mean any individual, association, partnership, corporation or business operated under a declaration of Trust in this State.'

Section 2 of this act provides:

'Every person who engages in the business of an itinerant merchant in the State of Florida shall, before engaging in such business, apply for and obtain a license therefor from the State Comptroller, and there shall be and is hereby imposed the following license taxes for the privilege of engaging in the business of itinerant merchant in this State, which license tax shall be collected by the Comptroller of the State of Florida, through the several Tax Collectors of the State in the following amounts, based upon the amount of stock employed in the conduct of the business operated.

Schedule of License Taxes

'Stocks up to $100 to $500, License Fee ..... $50.00 Annually

'Stocks up to $500 to $1,000, License Fee ..... $100.00 Annually

'Stocks up to $1,000 to $2,500, License Fee ..... $200.00 Annually

'Stocks up to $2,500 to $5,000, License Fee ..... $350.00 Annually

'Stocks up to $5,000 to $10,000, License Fee ..... $500.00 Annually

'Stocks up to $10,000 to $20,000, License Fee ..... $750.00 Annually

'Stocks up to $20,000 to $50,000, License Fee ..... $1,000.00 Annually

'Stocks up to $50,000 to $100,000, License Fee ..... $1,500.00 Annually

'Stocks up to $100,000 to $200,000, License Fee ..... $2,000.00 Annually.'

Section 4 provides as follows:

'The Comptroller of the State of Florida shall have power to inquire into and determine as a question of fact whether or not any particular person is engaged in the business of itinerant merchant in this State and subject to the provisions of this Act and all determinations so made by the Comptroller shall be prima facie evidence of the legality regularity and validity of the findings made and shall be accepted as such in all the courts of the State of Florida.'

Section 6 of this act provides as follows:

'The payment of an itinerant merchant's license under this Act shall operate as an exemption of the person paying the same from any other license imposed upon merchants by the laws of this State, except that counties shall be permitted to levy not exceeding Fifty Percent of the amount hereinbefore provided to be paid to the State, which amount shall be and constitute when levied a county license tax upon said business and shall be issued as other county licenses are now issued according to law.'

Section 7 of the act provides the penalty for noncompliance.

The bill alleges that Greenleaf & Crosby Company, Inc., is a corporation doing business in the state of Florida; has been conducting its business as general merchant for the sale of jewelry, plate, and other high-class merchandise at its present...