Heriot v. City of Pensacola

• Decision Date: 27 February 1933
• Citation: 146 So. 654,108 Fla. 480
• Parties: HERIOT v. CITY OF PENSACOLA et al.
• Court: Florida Supreme Court

146 So. 654

108 Fla. 480

HERIOT v. CITY OF PENSACOLA et al.

Florida Supreme Court

February 27, 1933

En Banc.

Suit by E. T. Heriot, suing on behalf of himself and others similarly situated, against the City of Pensacola and others. The bill was dismissed, and complainant appeals.

Affirmed. Appeal from Circuit Court, Escambia County; L L. Fabisinski, judge.

COUNSEL

Philip D. Beall and John M. Coe, both of Pensacola, for appellant.

Jerry J. Sullivan and Watson & Pasco & Brown, all of Pensacola, for appellees.

OPINION

BIRD Circuit Judge.

The city of Pensacola, in May, 1932, passed and adopted an ordinance known as Revised Tax Ordinance No. 1, under the terms of which a tax of 4 per cent. was laid on the purchase of electricity, gas, water, and telephone service within the corporate limits of that city, to be calculated upon the gross charges made to consumers for such service, and providing a maximum tax of $5 for each separate service or station, and providing that the tax should not extend to telephone service furnished at coin box telephones, and further provided that the dealer should collect the tax from the consumer where not absorbed by the furnisher and imposed a penalty of fine and imprisonment, or both, for violation of the ordinance. It is also provided in the ordinance that the moneys derived from the tax shall be used exclusively for the retirement of certain outstanding indebtedness of the city of Pensacola and the interest, and, when the same is paid, that the tax shall then cease.

The appellant, E. T. Heriot, a consumer and taxpayer, sued on behalf of himself and others similarly situated, by bill in the circuit court of Escambia county, against the city of Pensacola, George J. Roark, as city manager; Florida Public Utilities Company, a corporation, Gulf Power Company, a corporation, and the Southern Bell Telephone & Telegraph Company, a corporation, sought to restrain the enforcement of the ordinance.

Motion to dismiss the bill was filed by the city of Pensacola and George J. Roark as city manager; the cause coming on to be heard before the chancellor, the bill was dismissed. It is from this order dismissing the bill that the appeal is taken.

The assignment of error contains but one ground; i. e., the court erred in sustaining the motion to dismiss the bill.

The first question we are to determine is whether the city of Pensacola had power, under its charter, to levy a tax upon the purchase of gas, electricity, water, and telephone service payable by the consumer. This is clearly an excise tax, as defined in Amos v. Gunn, 84 Fla. 285, 94 So 615, 617, where it is held:

'An 'excise tax' is one laid on licenses to pursue certain occupations, corporate privileges, or sales or consumption of commodities,' and 'An excise tax partakes of the nature of a license tax.'

The tax here considered is of the same general nature as the gasoline tax now imposed by the state. The authority of the state to impose such a tax is beyond question. Amos v. Gunn, supra; Sheip & Co. v. Amos, 100 Fla. 863, 130 So. 699; Amos v. Mathews, 99 Fla. 1, 65, 115, 126 So. 308.

Section 8 of article 8 of the Constitution of Florida provides:

'The Legislature shall have power to establish, and to abolish, municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time.'

Section 5 of article 9 of the Constitution of Florida provides:

'The Legislature shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes, and all property shall be taxed upon the principles established for State taxation. But the cities and incorporated towns shall make their own assessments for municipal purposes upon the property within their limits. The Legislature may also provide for levying a special capitation tax, and a tax on licenses. * * *'

Under section 8 of article 8, the Legislature may grant to cities any power or authority that does not conflict with other provisions of organic law. City of Lakeland v. Amos (Fla.) 143 So. 744.

In Amos v. Mathews, 99 Fla. 1, 65, 115, 126 So. 308, 325, it is said:

'The Legislature may 'provide' for levying excise taxes either by a direct imposition thereof, or by delegated authority to local officers to levy such tax for a local purpose.'

There can be no question therefore that the Legislature could delegate to the city of Pensacola the power to levy the tax in question.

There is no inconsistency in this holding and that of Roach v. Ephren, 82 Fla. 523, 90 So. 609, where it is held that the Legislature may pass an unreasonable law and the court will not strike it down unless it violates an organic principle; but the Legislature may not delegate to the city the power to pass an unreasonable ordinance.

We now pass to the question as to whether such power has, in fact, been delegated.

Chapter 15425, Sp. Acts of 1931, is the charter of the city of Pensacola, the purpose of which act, as expressed in the title, among other things, is 'Granting Powers to Said City.'

Section 1 of said chapter provides:

'The City of Pensacola, under this Act, shall have and is hereby granted authority, to exercise all powers relating to the municipal affairs; and no enumeration of powers, in any law, shall be deemed to restrict the general grant of authority, under the general laws of the State, applicable to municipal corporations, hereby conferred.

The following shall be deemed to be a part of the powers conferred by this section:

'(1) To levy, assess and collect taxes and to borrow money within the limits prescribed by general laws; and to levy and collect special assessments for local improvements.'

Section 2 of said chapter, among other things, provides:

'It is intended that the City of Pensacola shall have, and may exercise all powers which under the Constitution of Florida, it would be competent for this charter specifically to enumerate.'

And section 3 of said chapter provides:

'All rights, actions, prosecutions and contracts and power and property of every description which were vested in it. are vested in it under the charter herein provided for, as though there had been no change in form of government.'

At first glance, it may seem that the phrase 'within the limits prescribed by general law,' as contained in subsection 1, of section 1, is a limitation upon the power to levy, assess, and collect taxes, as well as upon the power to borrow money, and such is the contention of appellant.

In construing statutes, it is a cardinal rule that the intent is the vital part. It is the essence of the law. The primary rule of construction is to ascertain and give effect to that intent.

The entire statute is to be considered in ascertaining the intent. Effect must be given to every part of the section and every part of the statute as a whole. The subject regulated, the purpose designed to be accomplished, and the means adopted, should be considered to ascertain the true and lawful legislative intent which alone has the force of law. Axtell v. Smedley & Rodgers Hardware Co., 59 Fla. 430, 52 So. 710; Tylee v. Hyde, 60 Fla. 389, 52 So. 968; State ex rel. Keefe v. St. Petersburg (Fla.) 145 So. 175.

The court will not follow the letter of the statute when it leads away from the true intent and purpose of the Legislature and to conclusions inconsistent with the general purpose of the act. Curry v. Lehman, 55 Fla. 847, 47 So. 18.

'In statutory construction legislative intent is the pole star by which we must be guided, and this intent must be given effect even though it may appear to contradict the strict letter of the statute and well-settled canons of constructions. No literal interpretation should be given that leads to an unreasonable or ridiculous conclusion or to a purpose not designed by the lawmakers.' State v. Sullivan, 95 Fla. 191, 116 So. 255, 256.

Generally, the rule is that statutes conferring authority to impose taxes must be strictly construed. Moseley v. Tift, 4 Fla. 402; Ex parte Sims, 40 Fla. 432, 25 So. 280, 282. It is also stated in Ex parte Sims, supra:

'Another general rule universally recognized is that delegated corporate powers to municipalities--particularly grants of power that are out of the usual range, and that may result in public burdens, or which, in their exercise, touch the right to liberty or property, or any common-law right of the citizen--must be strictly construed; and...