State Ex Rel. Mckay v. Keller

• Decision Date: 20 October 1939
• Citation: 191 So. 542,140 Fla. 346
• Parties: STATE ex rel. McKAY v. KELLER, Tax Collector.
• Court: Florida Supreme Court

191 So. 542

140 Fla. 346

STATE ex rel. McKAY v. KELLER, Tax Collector.

Florida Supreme Court

October 20, 1939

En Banc.

Original proceeding in mandamus by the State of Florida, on the relation of K. I. McKay, against T. C. Keller, as Tax Collector of the City of Tampa, Florida, to compel respondent to issue relator a license to practice law in the City of Tampa. On respondent's motion to quash alternative writ previously issued.

Motion denied.

BUFORD J., dissenting.

COUNSEL

Howard P. Macfarlane, C. Fred Thompson, Frank T Phillips, Henry H. Cole, Calvin Johnson, Knight & Thompson Sutton & Reeves, McKay, MacFarlane, Jackson & Ramsey, and Mabry, Reaves, Carlton & White, all of Tampa, for relator.

Alonzo B. McMullen and Ralph A. Marsicano, both of Tampa, for respondent.

OPINION

CHAPMAN Justice.

This is a case of original jurisdiction. It was by petition made to appear that the relator, K. I. McKay, is a practicing attorney and a member of a firm composed of several partners in the City of Tampa; that under Section 307 of the Compiled Ordinances of the City of Tampa he was due said City as an annual license tax upon lawyers the sum of $25.00, and on January 28, 1939, made application to the respondent city for a license to practice law in the City of Tampa from October 1, 1938, to September 30, 1939, and tendered to it the sum of $25.00 and requested of the city the issuance of a license for the full license year under Section 307 of the Compiled Ordinances of the City.

The relator further represented to the respondent city that from October 1, 1937, to September 30, 1938, the members of his law firm consisted of K. I. McKay, Howard P. Macfarlane, W. H. Jackson, Maynard Ramsey, Chester H. Ferguson, and J. Herndon; that Maynard Ramsey died December 21, 1938, and Tom Alexander has since become a member of the firm; that the gross receipts of the firm obtained by the practice of the law exceeded the sum of $50,000 for the preceding license and calendar year; that the relator's net income therefrom for the license year, after deducting all expenses of the firm, exceeded the sum of $10,000. These facts were made known to the respondent at the time a license was demanded.

The respondent denied the request of the relator and refused to issue the demanded license on the ground that under certain provisions of Ordinance No. 689-A it was necessary that the relator make known the exact amount of his gross receipts and to pay an additional amount thereon, as required by said Ordinance. The relator contended that he was entitled to the issuance of the occupational license under Section 307 of the Compiled Ordinances and that Ordinance No. 689-A is invalid and unenforceable.

The pertinent or material portions of Ordinance No. 689-A to be considered in deciding this case are, viz.:

'Professions

'Attorneys, physicians, surgeons, chiropractors, osteopaths, naturopaths, electro therapists, veterinarians, architects, dentists, civil engineers, surveyors, optometrists and chiropodists, the license tax shall be determined and measured by the gross receipts derived from the practice of the particular profession, in the following manner:

'When the gross receipts derived from the practice of the profession during the 12 months period ending September 30, 1938 was $2,500.00 or less-----$25.00. When the gross receipts for the said twelve months period was in excess of $2,500.00 the license tax shall be measured by an amount equal to $25.00 for the first $2.500.00, plus an amount equal to $10.00 for each additional $1,000.00, using said gross receipts as a measure.

'Applications for license shall be made under oath on forms to be furnished by the City Tax Collector and shall state therein that the gross receipts derived from the practice of the applicant's profession for the 12 months period ending September 30, 1938, was not in excess of the amount as set forth in said application.

'It is intended that the foregoing classification shall be a license tax for the professions as named and nothing contained in this ordinance shall be construed as meaning or intending that such tax be an ad valorem tax, or a property tax, or an income tax or a tax on income, or other than a license tax.'

It is contended that the ordinance No. 689-A is void, invalid and unenforceable as against the relator for many reasons. It is not necessary to set out in extensio the several reasons but some three or four will be sufficient to dispose of the case at bar, and these grounds are, viz.:

'That the classification as contained in said ordinance is unreasonable and arbitrary as between relator and other attorneys in different classes with respect to the gross receipts derived by them from the practice of their profession, in that it attempts to impose, in addition to the $25.00 tax imposed by the aforesaid Section 307, when the gross receipts of attorneys, derived from the practice of their profession during the twelve months period ending September 30, 1938 were in excess of $2,500.00, to be measured by an amount equal to $10.00 for each additional $1,000.00 over and above the first $2,500.00 using said gross receipts as a measure; that said attempted classification is wholly whimsical, unreasonable and arbitrary and has no relation to the rights, privileges or immunities to be exercised or enjoyed by the licensee in any of said classes; that it merely attempts to impose a tax in a different amount and at a different rate on one attorney because he has exercised the privilege of practicing law more frequently or in more remunerative matters.

'That classification as contained in said ordinance is unreasonable and arbitrary and discriminatory as against relator as compared with classifications of other businesses or occupations as made by other ordinances passed as a part of the same general taxing scheme in that ordinance No. 607-A life insurance agencies are required to pay an additional tax for an agency having from 1 to 5 agents or solicitors in the sum of $10.00 and an additional sum of $5.00 for each additional 5 agents or fractional part thereof; that said license on said occupations are not based upon nor do they have any relation to the income of such agencies and the taxes imposed would ordinarily amount to an infinitesimal percentage of the gross income of such agencies; that by Ordinance No. 689-A retail merchants are taxed only $10.00 for the privilege of conducting a store and an additional sum of $2.00 on each $1,000.00 of sales, or 1/5 of 1% on gross sales in excess of $3,000.00 and the wholesale merchants are taxed 60 cents on each $1,000.00 of sales; that under the aforesaid ordinance an attorney who has derived gross receipts from the practice of his profession of $10,500.00 would pay as much tax as a retail merchant with gross sales of $50,000.00 or a wholesale merchant with gross sales of $160,000.00; that said discrimination is unreasonable, arbitrary and whimsical and has no relation to the ability to pay nor to the rights, privileges and immunities enjoyed or exercised by the licensee.

'That the license fee of $25.00 charged by the City of Tampa, under Section 307 aforesaid is in itself the highest license fee charged by any of the principal cities of the State except Pensacola and Key West, as will appear from a schedule attached hereto and made a part hereof as exhibit 2, which shows the license fees charged attorneys by the principal cities of Florida, and any license tax upon relator in excess thereof in unreasonable and excessive; that if said Ordinance 689-A is enforced against relator he will be required to pay as a license fee to the City of Tampa for the privilege of practicing law therein a sum in excess of $95.00; that said sum is grossly excessive and unreasonable; that the so-called measure by which the amount of license tax relator is required to pay is attempted to be determined is unreasonable, arbitrary and discriminatory in that it is not based upon any advantage relator has over any other person engaging in the same profession or upon any other element or basis, excepting income alone, that is not common to all attorneys practicing their profession in the City of Tampa.

'That said ordinance is an attempt to levy a tax upon the income of relator, in violation of the provisions of Section 11, Article IX, of the Constitution of the State of Florida.'

The respondent filed a motion a quash the alternative writ of mandamus previously issued in this cause. Section 11 of Article IX of the Constitution of Florida adopted at the general election of 1924, providing that no tax upon the income of residents or citizens of Florida shall be levied by the State of Florida or under its authority is, viz.:

'No tax upon inheritances or upon the income of residents or citizens of this State shall be levied by the State of Florida, or under its authority, and there shall be exempt from taxation to the head of a family residing in this State, household goods and personal effects to the value of Five Hundred ($500.00) Dollars.'

Income taxes are of ancient origin but have become prominent in this Country within the past few years when an amendment to the Federal Constitution was adopted authorizing the collection of such a tax. Many of the States of the Union have imposed an income tax and the legal machinery therefor is patterned largely or to a great extent after the Federal laws. Express power to tax incomes in conferred by the Constitution or Constitutional Amendments in several of the States, but the people of Florida have never granted such power to the taxing authorities of this State. On the other hand, at the General Election of 1924 the people adopted Senate Joint Resolution No. 135, Acts of...