United States v. Lee

• Decision Date: 02 June 1943
• Citation: 153 Fla. 94,13 So.2d 919
• Parties: UNITED STATES v. LEE.
• Court: Florida Supreme Court

13 So.2d 919

153 Fla. 94

UNITED STATES v. LEE.

Florida Supreme Court

June 2, 1943

Rehearing Denied July 2, 1943.

Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, J Louis Monarch, Paul F. Mickey and Edward First, Sp Asst's. to Atty. Gen., George E. Hoffman, U. S. Atty., of Pensacola and S. L. Scruggs, Asst. U.S. Dist. Atty., of Gainesville, for petitioner.

J. Tom Watson, Atty. Gen., James H. Millican, Jr., Asst. Atty. Gen and J. Lewis Hall, of Tallahassee, for defendant.

TERRELL, Justice.

Petitioner filed its bill of complaint in the circuit court praying that J. M Lee individually and as Comptroller of the State of Florida be restrained from collecting the taxes imposed by Chapter 208, Florida Statutes of 1941, F.S.A. § 208.01 et seq., on sales of gasoline made to the United States, its departments, agencies, and instrumentalities.A motion to dismiss the bill of complaint was granted and that judgment is here for review by certiorari under Rule 34 of the Rules of the court.

The real question presented is whether or not the United State of America is immune from payment of the gasoline tax imposed by the various Sections of Chapter 208,Florida Statutes 1941, particularly Section 208.04 thereof, F.S.A. § 208.01 et seq., and§ 208.04.

Appellant contends that it is the consumer of the gasoline so purchased and claims immunity from payment of the state tax under the Federal Constitution are discussed in this connection but it is admitted that they have been modified by Penn Dairies, Inc., v. Milk Control Comm. of Penn.,318 U.S. 261, 63 S.Ct. 617, 87 L.Ed.--, and other cases.

Appellee, on the other hand contends that the tax is imposed on the dealer in gasoline and must be paid by him without regard to the consumer or a tax on the consumer.Standard Oil Co. v. Lee,145 Fla. 385, 199 So. 325;State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3, 140 A.L.R. 615;Curry v. United States,314 U.S. 14, 62 S.Ct. 48, 86 L.Ed. 9;Federal Land Bank v. Bismarck Lumber Co.,314 U.S. 95, 62 S.Ct. 1, 86 L.Ed. 65, are relied on to support this contention.It is admitted that if Section 208.04 imposes the tax on the dealer, the United States has no case and must pay the tax, on the other hand if the tax is imposed on the consumer, the appellee has no defense and must abandon the attempt to collect the tax.In this state of the issue, the main question turns on that of whether or not Section 208.04 imposes the tax on the dealer or the consumer.The briefs of counsel being directed in the main to this point, the controlling question is ultimately that of expounding the effect of the act.

It may clear the atmosphere to state that the law of Florida imposes two separate and distinct gasoline taxes.Section 208.04,Florida Statutes 1941, imposes a tax of six cents on the gallon, while Section 208.44 imposes a tax of one cent per gallon.The latter tax is not challenged, it being admitted that it is imposed on the dealer and must be paid by the United States.The impounding order in this case does not affect this tax but goes solely to the tax imposed by Section 208.04.

To support its contention that the tax in question is on the consumer, appellant relies primarily on certain language in Section 208.04, which reads, 'This levy of tax is upon the consumer.'Predicated on this terminology, petitioner contends (1) that the tax so imposed is invalid as to the United States, (2)this Court has not held that the tax is not a tax upon the consumer which the history of the act shows it to be, (3)Chapter 15659, Acts of 1931, while imposing a dealers' tax, had features contrary to that view, and also had attributes of a consumer tax, (4) the effect of Chapter 18298, Acts of 1937, supports the consumer tax theory, (5)Section 208.04 in effect imposes the tax on the United States, (6) even if section 208.04 merely authorizes the dealer to collect the tax from the consumer, the effect is to burden the consumer when the dealer exercises his authority, (7)Chapter 20303, Laws of Florida, 1941, did not repeal Section 208.04,Florida Statutes 1941.

It may be stated at the outset that if the gasoline tax is laid on the United States or in the way laid it directly retards the United States in the exercise of its constitutional powers, it is invalid and nonenforceable.Panhandle Oil Co. v. State of Mississippi ex rel. Knox, supra;Graves v. Texas Co., supra, andJames v. Dravo Contracting Co., supra, conclude this point.But this doctrine was modified in State of Alabama v. King & Boozer, supra, where it was held that the constitutional immunity of the United States did not apply to a state sales tax imposed on a seller which he collects from the buyer who is a contractor with the United States.

A tax is determined by its practical operation and effect, and not by the name applied to it by the legislature.Measured by this test, the tax in question has never been anything but a tax upon the dealer in gasoline who is not immunized from payment of the tax on sales to the United States.It is true that the contrary view was held for a long time and sales to the United States were relieved of the tax by the Comptroller, but since State of Alabama v. King & Boozer, and Standard Oil Co. v. Lee, and other cases, a different view has been adopted.

It is quite true that this Court has not said in terms that the tax in question is not a tax on the consumer, but in Orange State Oil Co. v. Amos,100 Fla. 884, 130 So. 707, we held it to be an excise tax upon the privilege of selling gasoline.This was...