Sproul v. State ex rel. Smith

• Decision Date: 04 January 1944
• Citation: 153 Fla. 892,16 So.2d 109
• Parties: SPROUL, Tax Collector, v. STATE ex rel. SMITH.
• Court: Florida Supreme Court

16 So.2d 109

153 Fla. 892

SPROUL, Tax Collector, v. STATE ex rel. SMITH.

Florida Supreme Court

January 4, 1944

Appeal from Circuit Court, Palm Beach County; George W. Tedder Judge.

J. Tom Watson, Atty. Gen., and Lawrence A. Truett, Asst. Atty. Gen for appellant.

Beacham & Gaulden, of West Palm Beach, and R. R. Saunders and J B. Patterson, both of Fort Lauderdale, for appellee.

BROWN, Justice.

The appellee here W. P. Smith, filed a petition for an alternative writ of mandamus in the Circuit Court of the 15th Judicial Circuit in which he alleged that he was a vendor of intoxicating liquors in the County of Palm Beach and had been a duly licensed vendor for the past three years and that in his place of business intoxicating liquors were sold and consumed on the premises. That according to the last federal census of 1940 the population of Palm Beach County was 79,895 and that pursuant to the controlling statute relator, on September 22, 1942, tendered and paid to the respondent tax collector the sum of $1,200, which was accepted and vendor's license duly issued. That relator on September 23, 1943, tendered the respondent the sum of $1,200 for renewal of said license and respondent refused to accept said sum of money and demanded that relator pay the sum of $1,500 as a condition precedent to issuing the new license. That it was the clear legal duty of respondent to issue said new license to relator on payment of said sum of $1,200 and prayed that the court would issue its alternative writ of mandamus commanding tax collector to issue said license upon the payment of said sum of $1,200, or show cause why he failed and refused so to do. The alternative writ was issued as prayed and the respondent tax collector filed a return, in which he admitted that according to the last federal census as recorded the population of Palm Beach County was as above stated but alleged that he refused to accept the sum of $1,200 and demanded that relator pay the sum of $1,500 because the legislature had in 1943 adopted an act, Chapter 22205, Acts of 1943, which provided for the taking of a state census to determine the number of inhabitants in Palm Beach and Broward Counties; that pursuant to such act a census was duly taken and the population of Palm Beach County was determined to be 100,469, and the population of Broward County was determined to be 49,274, and that by reason thereof the 15th Judicial Circuit became entitled to an additional judge. That under Section 561.34, Florida Statutes 1941, F.S.A. (being section 5 of Chapter 16774, Acts of 1935), the license tax for vendors of beverages under said act is fixed on a graduated basis according to population and that under paragraph (4) of Section 561.34, 'vendors operating places of business where consumption on the premises is permitted in counties having a population of over one hundred thousand, according to the latest state or federal census,' the state license tax was fixed at $750, and the county tax as provided by the act is an amount equal to the state tax, which made the license tax due from relator $1,500, and the relator not having tendered such sum, respondent had declined to give him a license.

The relator filed his motion for peremptory writ notwithstanding the return, and the court granted the motion and made an order directing the clerk to issue the peremptory writ against the tax collector as prayed upon the payment of the sum of $1,200 for the annual period from October 1, 1943 to October 1, 1944. The peremptory writ was duly issued as directed and from the court's order granting the peremptory writ, this appeal was taken by the respondent tax collector.

Our view is that the action of the circuit court was in accordance with the intent and purpose of Section 5 the Beverage Act of 1935, Chapter 16774, Acts of 1935, and now appearing as section 561.34 of Florida Statutes 1941, F.S.A. Under paragraph 5 of section 5 of said Beverage Act vendors of intoxicating beverages operating places of business where consumption on the premises is permitted in counties having a population of over 60,000 and not over 100,000, according to the latest state or federal census, shall pay a state license tax of $600, and under paragraph 4 of the same section such vendors in counties having a population of over 100,000 according to the last state or federal census must pay a state license tax of $750. A similar amount must also be paid to the county.

The Beverage Act of 1935 was a general act, very comprehensive in its terms, and being a taxing as well as a regulatory statute, was intended to have uniform operation throughout the state in all counties in which the sale of liquors was not prohibited by law, and our view is that when the legislature used the words 'according to the last state or federal census' it had in mind the regular federal census which is taken every ten years and the regular state-wide census which is likewise taken every ten years, these censuses being so staggered as to take place every five years.

Section 5 of Article VII of our Constitution reads as follows:

'The Legislature shall provide for an enumeration of all the inhabitants of the State by counties for the year 1895 and every ten years thereafter.'

The federal census is taken at the end of each decade of ten years. So it is that we have a census of the entire state, and of each and every county in the state, either by the state itself or by the federal government, every five years. When the legislature in the Beverage Act decided to determine and graduate the amount of the licenses to be paid in each and every county in the state according to population within certain brackets and according to 'the latest state or federal census' the legislature must certainly have had in mind these fixed and regular state-wide censuses above referred to, which, one or the other, is taken every five years. This gives statewide uniformity to the operation of this state-wide act and prevents the act from having a discriminatory effect.

For instance, this special census which was taken only for Palm Beach and Broward Counties under this special act, Chapter 22205, Acts of 1943, did show an increase in population in those counties, but it is quite certain that in a number of counties in the state, during the period from 1940 to 1943, there had likewise been a considerable increase in the population. Therefore the only way to prevent the Beverage Act of 1935 from having a discriminatory effect is to give to that statute the construction hereinabove placed upon it.

Section 1, Article IX of our Constitution, requires that the legislature shall provide for uniform and equal rates of taxation, and Section 20, Article III, provides that the legislature shall not pass special or local laws for the assessment and collection of taxes for state and county purposes.

The legislature of 1943 passed an Act, Chapter 21637, F.S.A. § 26.16, providing that the number of judges of the 15th Judicial Circuit shall be one for every 50,000 inhabitants or major fraction...