Tamiami Trail Tours, Inc. v. Lee

• Citation: 194 So. 305,142 Fla. 68
• Court: Florida Supreme Court
• Decision Date: 27 February 1940
• Parties: TAMIAMI TRAIL TOURS, Inc., et al. v. LEE, State Comptroller.

194 So. 305

142 Fla. 68

TAMIAMI TRAIL TOURS, Inc., et al. v. LEE, State Comptroller.

Florida Supreme Court, Division B.

February 27, 1940

Rehearing Denied March 19, 1940.

Suit by the Tamiami Trail Tours, Inc., and others against J. M. Lee as State Comptroller of the state of Florida, to restrain the defendant from collecting taxes under act imposing an excise tax of 7 cents per gallon on fuels used in internal combustion engines used to propel motor vehicles along the highways, except fuels subject to tax under gasoline tax acts. The chancellor denied the plaintiffs' motion for injunction, and granted defendant's motion to dismiss and the plaintiffs appeal.

Affirmed. Appeal from Circuit Court, Leon County; J. B Johnson, Judge.

COUNSEL

A Pickens Coles and John M. Allison, both of Tampa, for appellants.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood and Lawrence Truett, Assts. Atty. Gen., for appellee.

OPINION

BROWN Justice.

Appellants filed their bill of complaint in the circuit court of Leon County seeking an injunction restraining appellee from collecting taxes under Chapter 19446, Laws of Florida, Acts of 1939. The said Act imposed an excise tax of 7 cents per gallon on fuels used in internal combustion engines, where such engines were used to propel motor vehicles along the highways of the State of Florida and excepted such fuels as were subject to the tax imposed by Chapter 15659, Laws of Florida, Acts of 1931, Ex.Sess., or any other gasoline taxing Acts of the State of Florida.

The chancellor, after argument, denied appellants' motion for an injunction and granted appellee's motion to dismiss. The present appeal is taken from that order, dated September 13, 1939, dismissing the bill of complaint.

Several questions are presented in the bill but only two of them are relied upon by appellants in their brief and we shall, therefore, confine ourselves to these.

The questions are: (1) 'Are motor carriers, certified under Chapter 14764, Acts of 1931, exempt thereunder from the purview of Chapter 19446, Acts of 1939?' and (2) 'Does Chapter 19446, Acts of 1939, repeal the exemption provisions of section 16, Chapter 14764, Acts of 1931?'

Question numbered 1 must, in our opinion, be answered in the negative.

Passing to the second question, Section 2 of Chapter 19446, Acts of 1939, provides: 'An excise tax of seven cents (7¢ ) per gallon is hereby imposed on the use of such fuel by any person within this State only when such fuel is used in an internal combustion engine for the generation of power to propelmotor vehicles of any kind or character on the public highways of Florida to be computed in the manner hereinafter in this Act set forth and paid by the users.' (Italics added.)

Section 16, Chapter 14764, Acts of 1931, Section 1335(15), C.G.L., Perm.Supp., recites: '* * * Provided further, that the mileage tax provided for in this section shall be in lieu of all other taxes and fees of every kind, character and description, State, County or Municipal, except ad valorem taxes levied upon the property other than motor vehicles of such auto transportation companies and except the gasoline tax, and except the motor vehicle license tax as now or hereafter provided for by law.' (Italics supplied.)

Thus the gasoline tax is excepted from the exemption allowed by said section 16. We are here dealing with a 1939 statute which is designed to place a tax on a substitute for gasoline. It is admitted that Chapter 19446 is so drawn as to place a tax on a distillate or fuel oil used in the operation of Diesel motored vehicles using the highways of Florida. This substitute for gasoline was not used on the highways when Chapter 14764 was enacted. If the gasoline tax was excepted from the exemption allowed by section 16 of Chapter 14764, as it plainly was, why cannot the legislature by a later Act likewise except, in effect, the tax on a new substitute for gasoline from the benefit of such exemption? A large portion of the 7-cent gas tax goes to pay for the upkeep and construction of public roads. Suppose a substitute for gasoline should be found which would come into general use, could it be said that anything contained in Chapter 14764 could possibly prevent the legislature from placing a tax on its use by all persons or corporations using the State's highways? If the Legislature could be so prevented, the chief source of funds with which our highways are maintained could be taken away by a mere change in the character of motor fuel without any power in the legislative branch to remedy the situation. The legislative power to deal with new situations as they arise cannot thus be limited, even though their action...