Overstreet v. Frederick B. Cooper Co., 31103

• Decision Date: 25 October 1961
• Docket Number: No. 31103,31103
• Parties: Earnest OVERSTREET, as Dade County Tax Collector, John A. Gautier, as Dade County Tax Assessor, and Ray E. Green, as Comptroller of the State of Florida, Petitioners, v. FREDERICK B. COOPER CO., Inc., Respondent.
• Court: Florida Supreme Court

Page 225

134 So.2d 225

Earnest OVERSTREET, as Dade County Tax Collector, John A. Gautier, as Dade County Tax Assessor, and Ray E. Green, as Comptroller of the State of Florida, Petitioners, v. FREDERICK B. COOPER CO., Inc., Respondent.

No. 31103.

Supreme Court of Florida.

Oct. 25, 1961.

Rehearing Denied Nov. 29, 1961.

Darrey A. Davis, County Atty., and St. Julien P. Rosemond, Asst. County Atty. Miami, for petitioners.

Kommel & Rogers, Miami Beach, for respondent.

O'CONNELL, Justice.

The petitioners, hereinafter referred to as defendants, are the Tax Assessor and Tax Collector of Dade County and the Comptroller of this State. They petitioned this Court for a writ of certiorari to review that decision of the District Court of Appeal, Third District, reported in 126 So.2d 744, asserting that said decision is in conflict with the decision of this Court in Irwin v. Gilson Realty Co., Inc., 1934, 117 Fla. 394, 158 So. 77.

We issued the writ and have heard argument by the petitioners. Respondent did not present argument before us.

Frederick B. Cooper Co., Inc., the respondent here, plaintiff below and hereinafter referred to as plaintiff, filed a suit in chancery against the defendants seeking to cancel an assessment for taxes on certain personal property made by the defendant-tax assessor and seeking to enjoin the defendant-tax collector and comptroller from attempting to collect any tax pursuant to such assessment.

Plaintiff's complaint alleged that it imported certain canned meats into Dade County from Europe and stored same in its name in the original cases in a warehouse in said county and had never exhibited or offered said meats for sale other than in the original unbroken cases; it had paid federal import duties thereon; it had made a personal property tax return on said property to the defendant-tax assessor and therein claimed that such property was exempt from taxation under the provisions of Article I, Section 10, Clause 2, United States Constitution; the tax assessor had disallowed said exemption and its protest to the County Board of Equalization had been denied; and that the tax collector and comptroller would attempt to collect the tax pursuant to such assessment unless enjoined from doing so.

To this complaint the defendants filed an answer which contained a motion to dismiss.

Among other things the answer denied that the imported was exempt from local taxation under the federal constitution and alleged that such property was in the mass of trade in Dade County.

Among other things the motion to dismiss asserted that the plaintiff was a foreign corporation which was not authorized to do business in Florida in that it had not complied with Sec. 613.01, F.S.A., and that under the provisions of Sec. 613.04, F.S.A. it could not maintain this suit. A certificate of the Secretary of State of Florida was attached in support of the motion to dismiss.

After a hearing the chancellor in an 'Order on Pleadings', filed Dec. 2, 1959, deferred ruling on the motion to dismiss and stayed the cause for a reasonable length of time '* * * in order that the plaintiff, Frederick B. Cooper Co., Inc., a foreign corporation, may qualify to do business in the State of Florida * * *.' In the recital portion of this order the court said that it had been '* * * admitted by counsel for plaintiff that it sells alleged imported tangible personal property within Dade County, Florida * * *.'

Thereafter on March 1, 1960, in a final decree in which he recited that plaintiff had not qualified to do business in Florida and had rather contended that it did not have to qualify in order to maintain the suit, the chancellor dismissed the complaint with prejudice.

Plaintiff appealed to the district court and in its decision above recited that court reversed the chancellor's decree of dismissal.

In its opinion the district court said that the sole issue before the chancellor was the right of the plaintiff to maintain the suit in view of the fact that it was a foreign corporation which had not qualified to do business in this state. It then held that such a corporation '* * * can maintain an action to adjudicate its rights in the courts of this state, which it acquired under the Constitution of the United States.' As authority for its decision the district court cited and quoted from Blackshear Mfg. Co. v. Sorey, 1929, 97 Fla. 437, 121 So. 103, 104, which case properly held that a failure of a foreign corporation to comply with the statutes of this state requiring qualification of such corporations does not preclude such corporation '* * * from seeking the adjudication of its rights in the courts of this state, which it acquired under the federal Constitution or laws in interstate traffic.'

The effect of the district court's decision is to allow plaintiff the opportunity to prove if it can that it has a right under the federal constitution not to have the subject personal property taxed as sought to be done by the defendants.

It is plaintiff's position that the imported canned meats are exempt from state or local property taxes under that part of Article I, Section 10, Clause 2, United States Constitution, which reads:

'No State shall, without the consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws * * *.'

Plaintiff cites the case of Brown v. State of Maryland, 1827, 12 Wheat. 419, 441, 6 L.Ed. 678, in support of its position. In this last cited case Chief Justice Marshall, writing for the Supreme Court of the United States, said:

'* * * when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has,...