State Ex Rel. Adams v. Lee
| Decision Date | 27 November 1935 |
| Citation | 166 So. 249,122 Fla. 639 |
| Parties | STATE ex rel. ADAMS et al. v. LEE, State Comptroller.[*] |
| Court | Florida Supreme Court |
En Banc.
Original quo warranto proceeding by the State of Florida, on the relation of Thomas B. Adams, an officer of the court, and others, against J. M. Lee, as Comptroller of the State of Florida.
Order in accordance with opinion.
Judgment affirmed and opinion readopted 166 So. 262.
COUNSEL Thomas B. Adams, Henry P. Adair, and Knight Adair, Cooper & Osborne, all of Jacksonville, for relators.
Cary D Landis, Atty. Gen., H. E. Carter and J. V. Keen, Asst. Attys. Gen., and Henry C. Tillman, of Tampa, for respondent.
Relators and corelators, all of whom are ad valorem taxpayers of the state of Florida, by an information in the nature of quo warranto (not joined in by the Attorney General because he represents the respondent comptroller, a state officer), challenge the warrant or authority of the respondent, J. M. Lee, as comptroller of the state of Florida, to enjoy, exercise, and perform the franchises, functions, and powers attempted to be vested in him by chapter 16848, Acts 1935, an act of the last session of the Legislature, otherwise referred in these proceedings as Senate bill No. 724.
Since the gist of the complaint asserted by petitioners is the alleged total invalidity of the legislative act thus brought into controversy in these proceedings, and since the predominant question of constitutionality of the involved enactment is otherwise properly in issue before this court in companion cases (Chavers v. Harrell, 166 So. 261; State v. Lee, 166 So. 262) which have been argued, considered, and decided in connection with this case, we pass sub silentio the respondent's objections to the availability of quo warranto as the proper form of legal remedy authorized to be employed by the relators in their proceedings against respondent, and give our attention and consideration to the substance of petitioners' complaint against the legislative act whose enactment has occasioned this litigation.
At the 1934 general election, the people of Florida ratified a proposed constitutional amendment (art. 10, § 7) completely exempting homesteads of the value of $5,000 (and under) from all ad valorem taxation in so far as it was competent for the state of Florida to accomplish such purpose within the limitations of the Federal Constitution. Under article 12 of the Constitution of Florida, the primary source of revenue for the maintenance of Florida's comprehensive system of public free schools was theretofore deriveable from a limited ad valorem tax levy authorized in the several counties and special tax school districts of the state. The effect, therefore, of the adoption of the homestead tax exemption amendment was to materially reduce the public free school revenues realizeable from real estate taxation, and to so reduce them as to raise grave doubts whether the public free schools could be efficiently operated in the future in the absence of a grant thereto of materially increased state financial aid which, by amended section 9 of article 12 of the Constitution, the Legislature was given power to provide by means of any appropriate exercise of the state's revenue-producing power to add to the county school fund resources.
We therefore have before us a situation wherein the Supreme Court is called upon in this case to adjudicate the limits of the constitutional power vested in the Legislature to contrive and put into operation a revenue-producing excise tax measure designed to raise for the aid of the public free schools of Florida a new source of school revenue estimated to amount to approximately $4,500,000 in addition to the sources already provided. That chapter 16848, Acts 1935, supra, is in its essence such a revenue-producing measure contrived to provide for the relief of the public free schools of the state of Florida by raising revenue for the county school fund through the imposition of a special 'Tax Upon the Privilege of Operating a Store or Stores Within this State,' etc., according to classifications of the affected store operations for taxation purposes, as specified in the title to the act, has been asserted by counsel for the state appearing at the bar of this court during the oral argument of this case, and is accepted by us as true for the purposes of this decision.
That every separate tax scale set forth in section 4 of said act was intended by the Legislature which enacted it to be a joint and several separable act of taxation against the affected businesses, in so far as the same could be jointly or severally, or jointly and severally, sustained as being within the Legislature's constitutional power to tax, can scarcely be gainsaid in the light of the history of the act in the Legislature and the sweeping language employed in section 18 of the act. This is so, because that section not only authorizes, but directs, this court, if possible and permissible, to uphold and enforce all such part or parts as shall 'be deemed and held to be valid' in and of themselves, even though other 'unconstitutional, inoperative or invalid' parts or provisions may have to be deleted therefrom. In short, the effect of section 18 of Chapter 16848, supra, is to evidence a pronouncement that it was and is the 'legislative intent to pass this [such] Act' despite the fact that it may embrace 'unconstitutional, inoperative or invalid' parts which, if so adjudicated by this court, will necessarily have to be deleted from the statute as a condition to allowing the remainder of the act, not infected with any such vices, to stand and be enforced.
Provisions such as are found set forth in section 18 of this act are common in our modern legislative practice, especially in connection with revenue measures. And, when capable of being given a definite and reasonable operation in the course of practical judicial review, and where, in so doing, no absurd results will likely be brought about through their application, such provisions are ordinarily to be extended recognition and upheld as valid by the courts, as an alternative to the bringing about of the necessity for a reconvention of the Legislature to accomplish that which the Legislature itself has anticipated, set forth, determined, and declared in advance it would do if actually required to be called back to perform its own act of amendment. By such means the Legislature may renounce in advance provisions that are likely to be judicially declared to be beyond the scope of a constitutional exercise of legislative power, when, at the time of the law's enactment, the powers of the Legislature in the premises are undefined. [1] See City of DeLand v. Florida Public Service Co., 119 Fla. 819, 161 So. 740, Id., 119 Fla. 804, 161 So. 735.
Since the state courts, in dealing with the question of the constitutionality of an act of the Legislature, are entitled to take judicial notice of all local factual considerations apparent to the legislative department of the state government out of which the impulse for its enactment in a particular form arose (Dominion Hotel, Inc. v. Arizona, 249 U.S. 265, 39 S.Ct. 273, 63 L.Ed. 597), we proceed now to a consideration of the validity of Florida chapter 16848, Acts of 1935, in the light of the following circumstances of which this court may properly take judicial notice as having entered into the consideration concerning, and as having influenced the passage of, the challenged law comprehending the classifications herein objected to:
(1) That extensive new revenues were required by the state for its contribution to aid in the operation of the common school system of the state of Florida; (2) that the aggregate retail mercantile businesses conducted in the state were predominantly, if not wholly, supported by the patronage of parents and guardians domiciled in Florida and having children required to be educated in the common schools at public expense; (3) that a privilege tax upon all of the retail mercantile businesses of the state was therefore the most available and acceptable means of raising revenue for the schools out of the patrons of the schools, by reason of the fact that such a privilege tax, if made collectible in advance of the profit realization of the taxed privilege would accordingly be capable of being passed on by the taxed privilege holder to the buying public in the form of additions to the sale prices of goods sold by him at retail in the stores whose privilege to operate was selected to be taxed; (4) that retail stores in the state of Florida were not all alike, but were of two classes, (a) individually owned stores locally operated as single independent establishments; (b) chain stores operated as parts of a local or general chain of stores; (5) that the chain systems themselves were in turn divided into divers classes, (x) small local chains, (y) state chains, (z) national chains; (6) that where the chain systems were being operated, whether the systems were large or small, local or general, statewide or national, not only the chain system qua such system, but each and every multiple unit (store) of such chain system acquired and enjoyed an increased competitive advantage over individually owned and operated single stores to such an extent that it was fit and proper to separately classify, for purposes of the proposed privilege taxation, not only the chain systems separately from the individually owned and operated stores, but to classify the chain systems among themselves according to the advantages they enjoyed over each other, as determinable by each extension of the chain system by means of successive increases in the number of...
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