Lane Drug Stores v. Lee
| Decision Date | 29 July 1935 |
| Docket Number | 249.,No. 248,248 |
| Parties | LANE DRUG STORES, Inc., et al. v. LEE, Comptroller of Florida, et al. WINN & LOVETT GROCERY CO. v. SAME. |
| Court | U.S. District Court — Northern District of Florida |
Thos. B. Adams, of Jacksonville, Fla. (H. P. Adair and Knight, Adair, Cooper & Osborne, all of Jacksonville, Fla., of counsel), for plaintiffs Lane Drug Stores and others.
Marks, Marks, Holt, Gray & Yates, of Jacksonville, Fla., for plaintiff Grocery Co.
Cary D. Landis, Atty. Gen. of Florida, and J. V. Keen and H. E. Carter, Asst. Attys. Gen. of Florida (Philip D. Beall, of Pensacola, Fla., and Henry C. Tillman, of Tampa, Fla., of counsel), for defendants.
Before BRYAN, Circuit Judge, and RITTER and LONG, District Judges.
The attack is made on Senate Bill No. 724, "An Act to provide for the relief of the public free schools of the State of Florida, by raising revenue for the county school fund by levying and imposing a tax upon the privilege of operating a store or stores within this state, to classify such stores for the purpose of such taxation and of graduating the tax in accordance with the number of stores operated under a single ownership, management or control, to declare the public policy on which this Act is founded; to provide for the administration and enforcement of this Act and for the promulgation and enforcement of rules and regulations to facilitate such enforcement; to provide for the creation and enforcement of a lien upon the property of persons liable for the payment of such tax; to provide penalties for the violation of this Act and of rules or regulations lawfully made under the authority hereof; to repeal conflicting laws, expressly but on condition including Chapter 16071, Laws of Florida of 1933; and to appropriate the revenues derived thereunder."
Section 4 of the act imposes a tax equal to the amount due under the provisions of subdivision A and the amount due under subdivision B.
Subdivision A
Class Number of Stores Amount of Tax
1 1 store $ 10.00
2 2 or 3 stores 50.00
3 4 to 6 stores 100.00
4 7 to 10 stores 200.00
5 11 to 15 stores 300.00
6 more than 15 stores 400.00
Subdivision B
Class Number of Stores Amount of Tax
1 1 store ½ of 1% gross receipts
2 2 or 3 stores 1% of gross receipts
3 4 to 6 stores 2% of gross receipts
4 7 to 10 stores 3% of gross receipts
5 11 to 15 stores 4% of gross receipts
6 more than 15 stores 5% of gross receipts
Section 4 further provides that: "If the tax in subdivision `B' of this section be, for any reason, held invalid and inoperative, then the taxes in each of the six classes of stores enumerated in subdivision `A' of this section shall be twice the amount set forth in said schedule `A,' in lieu of the rates therein prescribed."
Section 18, Saving Clause, provides: "If any section, subsection, sentence, clause, phrase or word of this act, is, for any reason, held or declared to be unconstitutional, inoperative or void, such holding or invalidity shall not affect the remaining portions of this Act; and it shall be construed to have been the legislative intent to pass this Act without such unconstitutional, inoperative or invalid part therein; and the remainder of this Act after the exclusion of such part or parts shall be deemed and held to be valid as if such excluded parts had not been included herein," etc.
The bills charge that the act is in violation of section 16 of article 3 of the Constitution of Florida, in that the title of the act contains more than one subject and is not broad enough. This question has been presented to the Supreme Court of the state many times.
The act deals with the subject of taxation, and all matters pertaining to that subject can be included unless the title is misleading or deceptive or so vague as to be both. There are no two unconnected subjects embraced in this act, but it deals with one subject and matters properly connected therewith. State v. Bryan, 50 Fla. 293, 39 So. 929; Schiller v. State, 49 Fla. 25, 38 So. 706; Whitney v. Hillsborough County, 99 Fla. 628, 127 So. 486; Pullman Co. v. Knott, 70 Fla. 9, 69 So. 703.
It is unnecessary to discuss subdivision B of section 4 of the act, because the decision in Stewart Dry Goods Co. v. Lewis, 55 S. Ct. 525, 79 L. Ed. 1054, decided March 11, 1935, by the Supreme Court of the United States, fully sustains the contention of plaintiffs that subdivision B of section 4 of the act is so arbitrary, unreasonable, and discriminatory that it denies to these plaintiffs equal protection of the law guaranteed by the Fourteenth Amendment of the United States Constitution.
Dealing with the act as a whole, we are not impressed with the contention of plaintiffs that the license or excise tax imposed by subdivision A, and the amount due under subdivision B, composes a formula, a tax singular in its nature, but rather hold to the rule that where a part of a statute is in conflict with a constitutional provision, a court has no authority to declare the remainder void also, if, where the unconstitutional portion is stricken out, that which remains is complete in itself. Subdivisions A and B of the section of the act are not dependent the one on the other or so connected together in meaning that it cannot be presumed that the Legislature would have passed the one without the other; on the contrary, the paragraph contained in section 4 providing for twice the amount set forth in subdivision A in the event subdivision B be held invalid and inoperative, and section 18, the Saving Clause, are conclusive of the intention of the law making body.
"If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained." Cooley, Constitutional Limitations (8th Ed.) 360.
The rule in this state is well settled. Di Lustro v. Penton, 106 Fla. 198, 142 So. 898, 899.
Having held that the title of the act is sufficient and that subdivision A of section 4 is complete in itself and capable of being executed in accordance with the apparent legislative intent, we have reached the conclusion that said subdivision of the section is not unreasonable and discriminatory, nor does it deny to these plaintiffs equal protection of the law as guaranteed by the Fourteenth Amendment of the Constitution.
In State Board of Tax Commissioners of Indiana v. Jackson, decided by our Supreme Court in May, 1931, 283 U. S. 527, 51 S. Ct. 540, 543, 75 L. Ed. 1248, 73 A. L. R. 1464, the court said:
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