Owen v. Cheney

• Decision Date: 22 July 1970
• Docket Number: 69--454,Nos. 69--515,s. 69--515
• Citation: 238 So.2d 650
• Parties: J. W. OWEN et al., Appellants, v. Richard L. CHENEY et al., as City Council of the City of Tampa, and Central Oil Company, Inc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 650

238 So.2d 650

J. W. OWEN et al., Appellants, v. Richard L. CHENEY et al., as City Council of the City of Tampa, and Central Oil Company, Inc., et al., Appellees.

Nos. 69--515, 69--454.

District Court of Appeal of Florida, Second District.

July 22, 1970.

Rehearing Denied Sept. 15, 1970.

Paul B. Johnson, of Gregory, Cours, Paniello & Johnson, John A. Lawson, Jr., of Holland & Knight, Tampa, and Phillip Goldman, of Scott, McCarthy, Steel, Hector & Davis, Miami, for appellants.

W. Reece Smith, City Atty., and William Earle Tucker, of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellees.

McNULTY, Judge.

Section 167.431, F.S.A., authorizes the imposition of a 'utility tax' by municipalities. We are called upon to construe this section in the light of two ordinances of the City of Tampa. In pertinent part, § 167.431, Supra, provides as follows:

'(1) The several cities and towns in this state are hereby given the right, power, and authority, by nonemergency ordinance, to impose, levy and collect on each and every purchase of electricity, metered or bottled gas (natural liquefied petroleum gas or manufactured), water service, telephone service and telegraph service in their corporate limits, a tax * * * in an amount not to exceed ten per cent of the payments received by the seller of such utility service from the purchaser for the purchase of such utility service; * * * In the event any such ordinance imposes such a tax on the purchase of one of the utility services described herein and a competitive utility service or services are purchased in the city or town, then such ordinance shall impose a tax in like amount on the purchase of the competitive utility service or services whether privately or publicly owned or distributed; * * *' (Emphasis supplied)

Pursuant to this statute the City of Tampa enacted Ordinance No. 1017--A which imposed a tax on the purchase of electricity, natural gas and bottled and LP gas. Thereafter, the City sought to impose a like tax on the purchase of fuel oil by enacting Ordinance No. 4525--A, but this latter ordinance was repealed prior to its effective date.

Appellants are distributors and/or purchasers of the first-mentioned utility services originally, and presently, taxed under the aforesaid Ordinance No. 1017--A. They argue, in essence, that the gravamen of § 167.431, Supra, is to authorize municipal taxation of All 'competitive' utility services, Of whatever kind, and that by the clear import of the statute such tax cannot be limited only to the purchase of those utility services expressly mentioned therein. It is alleged that the distribution of fuel oil is 'competitive' to one or more of the utility services now taxed and, therefore, either the original taxing ordinance is unauthorized because it fails to tax the purchase of fuel oil, or the subsequent ordinance repealing such a tax is unauthorized for the same reason. Appellants thus seek declaratory judgments concerning their rights in the premises against the city and against all Tampa fuel oil dealers as a class.

Appellee-fuel oil dealers, on the other hand, essentially contend that a delegation of taxing power to municipalities must be strictly construed against the power. Accordingly, they say, only those utility services 'specifically named' in the statute are amenable to such taxation, and regardless of whether the distribution of fuel oil in the City of Tampa is in fact 'competitive' with the utilities specified, the express power to tax purchases thereof is nonexistent.

The trial court agreed with the fuel oil dealers and held:

'* * * Section 167.431 does not require the city to tax purchases of fuel oil because it has taxed one or more of the services specifically mentioned in the act. This is so even though fuel oil is competitive with other services pursuant to Section 167.431. Accordingly, there is no need to go further'.

Thereupon, the court granted motions to dismiss appellants' complaints, with prejudice, in which they prayed for injunctive relief, or, alternatively, mandamus against the City Council. We reverse.

At the outset, we agree with the trial court that '(t)he essential point to be decided is whether the Legislature intended, in enacting Section 167.431, to provide that if a municipality elects to tax purchases of one of the Specifically named services, it must also tax purchases of Any other competitive service even though it is not Specifically named in the statute'. This precise question has never been decided by any case cited or found, although true it is, that in a similar case involving the section of the statutes with which we are here concerned, our Supreme Court, in City of Orlando v. Johnson, ¹ voided a city ordinance taxing the purchase of fuel oil where such ordinance was passed purportedly on the authority of the 'competitive utility' proviso of the statute which we italicized above. The direct holding of that case, however, is that since the purchase of fuel oil was not expressly or impliedly mentioned in the title to the act when passed any interpretation thereof allowing the taxing of fuel oil services would render the act unconstitutional in view of the provisions of § 16, Art. III of the Florida Constitution, F.S.A. ² As was its duty, then, the court preserved the validity of the act by holding, on constitutional grounds, that the city was without valid authority to pass the ordinance relating to a tax on the purchase of fuel oil. It can be said, therefore, that the court did Not void the ordinance As being contrary to legislative intent. In other words, the real holding in that case is that, Regardless of the legislative intent, to the extent that the body of the statute in question gave municipalities authority to tax the purchase of any commodity or service not specifically mentioned in the title thereof, such statute was, at the time of its original passage, unconstitutional.

Subsequent to the decision in that case, however, the statute in question, codified as § 167.431, Supra, has been repeatedly re-enacted materially unchanged in the bienniel revisions of the Florida Statutes. ³ These circumstances bring the statute within the well-settled rule in Florida that all infirmities or defects in the title of a re-enacted statute are cured by the re-enactment; ⁴ and this is so whether the statute had theretofore been judicially declared inoperative because of such title defect or not. ⁵ We are of the view, therefore, that the discipline of Johnson, supra, does not preclude us from freely and fully construing the statute before us in terms of legislative intent and according to the rules governing statutory construction.

Accordingly, we initially allude to the common sense rule that a statute couched in clear and unambiguous language needs no 'aids' for its clarification, construction or interpretation. ⁶ The statute before us, we think, is simply this clear and unambiguous. It patently provides that should the utility tax authorized thereby be imposed on 'one of the utility services described (t)herein and a Competitive utility service or services are purchased * * * then such ordinance Shall impose a tax in like amount on the purchase of the Competitive utility service or services * * *.' (Emphasis supplied) Conspicuously, such words as, 'described herein', 'specifically named herein', or words of similar import, were Not used to modify or limit the term 'competitive utility service'. Yet, the necessary effect of the lower court's interpretation is to impliedly insert such words of limitation into the statute. Concededly, implied insertions may judicially and judiciously be used to resolve ambiguities in a statute; but if, as appellees suggest, § 167.431, Supra, is now ambiguous as worded, how would the aforesaid implied insertions limiting 'competitive utilities' make it any less ambiguous? They would merely make the statute applicable only to Enumerated 'competitive utilities' services whereas, now, it embraces All 'competitive utility' services. In each case, however, the statute is equally unambiguous as to the utilities affected.

Certainly, moreover, no such words of limitation are necessary either to make sense out of the statute as written or to sustain its validity. In fact, by impliedly inserting them, a different and distinct meaning is given to it. To warrant such result by the implied addition of words of modification or limitation the presumption of an intention to make the statute operate as it would when so altered must be so strong that the contrary thereof cannot reasonably be supposed, ⁷ or it must clearly appear that such words were inadvertently omitted. ⁸ There is nothing herein from which it can be said that either is the case. On the other hand, there are conclusive arguments in support of our view that the legislature intended to authorize the imposition of the utility tax on All 'competitive utilities' services whether named or unnamed, and that specific words of limitation relating thereto were intentionally omitted.

First of all, we must assume that the legislature intended to pass a taxation statute which would only permit of a fair and equitable tax burden on those within its scope. It cannot be said, therefore, that by enacting § 167.431, Supra, the legislature intended to create, or allow as a necessary incident, a favorable 'competitive' position in one utility over another. Notwithstanding, the order appealed from is amenable to no other ultimate effect.

Additionally, it is a rudimentary presumption that the legislature must have intended to enact constitutionally valid legislation. Yet if it were not its intent here to permit of a tax on unnamed or unspecified utility services, provided that such utility services were ultimately shown to be 'competitive', and it intentionally omitted to so allow, then the statute would be vulnerable to an assault on its constitutional validity. It may then well be said to...