State ex rel. Badgett v. Lee

• Decision Date: 20 July 1945
• Citation: 22 So.2d 804,156 Fla. 291
• Parties: STATE ex rel. BADGETT et al. v. LEE, Comptroller.
• Court: Florida Supreme Court

22 So.2d 804

156 Fla. 291

STATE ex rel. BADGETT et al. v. LEE, Comptroller.

Florida Supreme Court

July 20, 1945

Keen, Allen & O'Kelley, of Tallahassee, for relators.

J. Tom Watson Atty. Gen., and George M. Powell, Asst. Atty. Gen., for respondent.

THOMAS, Justice.

This and twenty-three companion cases have been submitted upon motion to quash the alternative writs issued by authority of Division 'A'. Although the controversies are now in a preliminary stage, it seems advisable to record our views in this one, to the end that final disposition of all may be expedited and simplified.

By the writ the Comptroller was commanded to refund to relators a certain amount alleged to be payable under Chapter 22008, Laws of Florida, Acts of 1943. Section 215.26, Florida Statutes, 1941 Sup., and F.S.A.

The attack, by way of the motion we now entertain, was based on the ground among others, that there were no sufficient allegations that relators had complied with Section 8 of Article IX of the Constitution and that Chapter 17178, Laws of Florida, Acts of 1935, having, upon the effective date of the Florida Statutes 1941, been reenacted as Section 205.36 of that compilation F.S.A., relators became indebted for taxes which had to be discharged as a prerequisite to a judgment in their favor.

In the hope of minimizing, if not obviating, confusion, we pause now to analyze the two acts and the portion of the Constitution to which we have referred. By Chapter 17178, supra, anyone bidding, for fixed price, 'to construct within the State of Florida any public building, highway, street, sidewalk bridge, culvert, sewer or water system, drainage or dredging system, electric or steam railway, reservoir or dam, hydraulic or power plant, transmission line, tower, dock, wharf, excavation, grading or other improvement or structure, or any part thereof,' the cost of which would exceed the sum of $50,000, was required to 'obtain from the Comptroller an annual State-wide license' and pay therefor 'a tax of one thousand dollars ($1,000) prior to offering or submitting any bid on any of the above enumerated projects.' This is the substance of Chapter 17178 and Section 205.36, supra, which are identical except that in the former the designated amounts appear parenthetically in numerals, and reference is made in the former to 'every person, firm or corporation,' in the latter to 'every person.'

Many years later Chapter 22008, supra, was enacted authorizing the Comptroller to refund, upon proper and timely application, money reaching the state treasury as an overpayment of license or tax, as a payment where none such was due, or as a payment made through error. It was under this statute that demand was made by relators, and upon refusal by the respondent, the Comptroller, the alternative writ was sought and granted.

Section 8 of Article IX, with which respondent claims relators did not comply, contains the provision that no one shall be relieved of illegal tax unless he pays such portion of his taxes as are legal; so, argues the respondent, relators should not be awarded a peremptory writ until 'taxes which have accrued under Section 205.36 [Chapter 17178] for the years 1942, 1943 and 1944' have been paid, which has reference to the tax for each of these years claimed by the respondent to be payable for the annual state-wide license to bid upon the construction of the public works detailed in the quotation from the act.

The relators paid to the Comptroller in 1936 the sum of $1,000 for 'Construction License No. 20 for the year 1936-37.' Then, in Lee v. Bigby, 136 Fla. 305, 186 So. 505, the statute 17178, was declared by this court unconstitutional in an opinion which we shall presently discuss.

Before proceeding further we interject a chronology of circumstances relavant to a decision of the issues. The act requiring the license was passed in 1935; the money involved was paid in 1936; the statute was held violative of the Constitution in 1939; the Florida Statutes 1941, in which was incorporated Chapter 17178 as Section 205.36, was enacted as Chapter 20719 in 1941 and became effective in 1942; Chapter 22008 became a law in 1943; and application for refund was presented in 1944.

The respondent's contention that the relief against the illegal tax, in this case attempted to be accomplished by peremptory writ commanding a refund, cannot be obtained without their paying, or alleging the payment of, or offering to pay, subsequent taxes for the licenses, brings into focus the efficacy of Section 205.36 as it now appears in the compilation. There was a presumption that this act, 17178, was constitutional and fully effective from the day it became a law, but this presumption ended when the court unanimously held that it contravened Section 16 of Article III of the Constitution. Then and there it became inoperative, to remain so as long as the decision holding it invalid was maintained. Christopher v. Mungen, 61 Fla. 513, 55 So. 273, 280. In that case Mr. Chief Justice Whitfield added that 'if the decision is subsequently reversed, the statute will be held to be valid from the date it first became effective, even though rights acquired under particular adjudications where the statute was held to be invalid will not be affected by the subsequent decision that the statute is constitutional.' We are not advised of any effort on the part of the Legislature to revive the provisions of the act after this court declared it unconstitutional or of any recession from that opinion. We quote from Christopher v. Mungen because we think it commits us to the rule that, though a statute declared unconstitutional becomes inoperative, it is not dead, only dormant. The question, then, is simply whether Chapter 17178, pronounced inoperative in the cited case, could be revivified by its incorporation in Florida Statutes 1941.

The history of the compilation becomes relevant. The Legislature, in Chapter 19140, Acts of 1939, directed the Attorney General to consolidate all general laws of Florida 'in force, of a permanent nature' for submission at the following session. This he did, and by Chapter 20719, Laws of Florida Acts of 1941, his compilation was adopted. Obviously Chapter 17178 was not in force at the time it was included in the code, but this seems unimportant when we examine the phraseology of the statute, Chapter 20719, Laws of Florida, Acts of 1941, adopting the Attorney General's compilation. It was titled 'An Act to Approve, Adopt and Enact the Flofida Statutes 1941; Prepared by the Attorney General Under Direction, and by Authority of the Legislature of...