Van Deman & Lewis Co. v. Rast

• Decision Date: 23 October 1913
• Citation: 214 F. 827
• Parties: VAN DEMAN & LEWIS CO. et al. v. RAST, County Tax Collector, et al.
• Court: U.S. District Court — Southern District of Florida

214 F. 827

VAN DEMAN & LEWIS CO. et al. v. RAST, County Tax Collector, et al.

United States District Court, S.D. Florida.

October 23, 1913

Cooper & Cooper, of Jacksonville, Fla. (Charles M. Cooper, of Jacksonville, Fla., and E. F. Spitz, of New York City, of counsel), for complainants.

Thomas F. West, Atty. Gen., of Tallahassee, Fla., for defendants.

CALL District Judge.

This cause comes on to be heard on a motion for an interlocutory injunction before Circuit Judge SHELBY and District Judges SHEPPARD and CALL, at Huntsville, Ala., on September 18 1913; upon consent of the parties 20 days were allowed the Attorney General of the state of Florida to file additional briefs.

Van Deman & Lewis Company, a corporation, and five others corporations and individuals, and others similarly situated filed their bill of complaint against John W Rast, tax collector of Duval county, Fla., and the tax collectors of each county in the state, the different state's attorneys, county solicitors, and prosecuting attorneys of the circuits and counties of the state of Florida.

The bill of complaint alleges, among other things, that each of the complainants are engaged in business as merchants handling certain articles enumerated, at the sale of which it is the custom to give coupons, slips, certificates, or other tokens which are redeemable in merchandise or receivable in part payment for certain articles to be selected by the customer from a list of same furnished by the manufacturer in some instances and the merchant in others. This list is too long to be set out here.

The bill further alleges: That each of these complainants has been, long prior to the passage of the act hereinafter referred to, and still is engaged in the business of selling said goods or some of them, and giving these coupons, slips certificates, or other tokens, redeemable as before mentioned. That trading stamps are substantially like some of the coupons or certificates before mentioned. That each of them carry large stocks of said goods and other articles of merchandise. That coupons, slips, certificates, or other tokens are given by the different manufacturers of different lines of goods. That under the act of the Legislature, hereinafter referred to, each is liable to have his stock seized and his person imprisoned and exorbitant fines imposed, and his business broken up, and his avocation destroyed, and his customers driven away.

The bill further alleges that each of the complainants have paid all license taxes due to the state of Florida, or any county thereof, for carrying on the several businesses of each, other than the license taxes concerning any coupon, profit-sharing certificate, or other evidence of indebtedness or liability mentioned in the act to be referred to. Also that the amount required to be paid by each will be more than $3,000.

The bill further alleges: That at the session of the Legislature of the state of Florida, held during the year 1913, 'chapter 6421, entitled an act imposing licenses and other taxes, providing for the payment thereof, and prescribing penalties for doing business without a license or other failure to comply with the provisions thereof,' was passed by said Legislature and approved June 5, 1913, by the Governor of Florida, and then proceeds to attack section 35 of the act on various grounds as violating the Constitution of the state of Florida, the commerce clause of the Constitution of the United States, the fourteenth amendment to the same, and various other portions of the Constitution, specifically set out in the bill of complaint. Further that irreparable damage will occur to each by the seizure of their stocks of goods by the tax collectors of the several counties, etc., setting out the facts whereby such irreparable damage will occur. That the state's attorneys, county solicitors, and prosecuting officers do threaten to proceed against them to enforce by criminal proceedings said statute, etc. That the tax collectors of the different counties, acting under instruction from the comptroller of the state, are threatening to seize their stocks, etc., to enforce said license tax. The bill then prays for an injunction order, interlocutory and permanent, against the defendants, restraining and enjoining each of them from attempting to enforce said section 35.

The Attorney General of the state of Florida, specially appearing for each of the defendants, moved to dismiss the bill of complaint on the grounds:

(1) That no sufficient facts are averred in complainants' bill of complaint to authorize this court to take jurisdiction in this cause and enjoin and restrain the defendants, who are officers of the state of Florida, from the performance of the duties imposed upon them by the statute referred to, viz., section 35 of chapter 6421, Acts of 1913, Laws of Florida.

(2) That it appears from the averments of complainants' bill of complaint that complainants have a complete and absolute remedy at law.

(3) That it appears from the averments of complainants' bill of complaint that they seek to enjoin and restrain prosecuting officers of the state of Florida from the performance of their official duty in the enforcement of a criminal statute of the state of Florida, of a general and public nature.

(4) That it appears from the averments of the complainants' bill of complaint that they seek to enjoin an alleged threatened seizure of personal property of complainants in the enforcement of the collection of an alleged illegal tax.

(5) That it appears from the averments of complainants' bill of complaint that they seek to enjoin a threatened seizure of personal property of complainants in the enforcement of the collection of a tax imposed by a statute of the state of Florida, of a general and public nature.

(6) That it does not appear from the facts averred in complainants' bill of complaint that an enforcement of the provisions of the statute referred to will regulate, hinder, restrain, prohibit, or destroy interstate commerce between the state of Florida and other states of the United States, in violation of the provisions, or any of them, of the Constitution of the United States.

(7) That it does not appear from the facts averred in complainants' bill of complaint that an enforcement of the provisions of the said statute will deprive or tend to deprive complainants of liberty or property without due process of law, in violation of the provisions, or any of them, of the Constitution of the United States.

(8) That it does not appear from the facts averred in complainants' bill of complaint that an enforcement of the provisions of the said statute will deny to complainants the equal protection of the law, in violation of the provisions, or any of them, of the Constitution of the United States.

(9) That it does not appear from the facts averred in complainants' bill of complaint that an enforcement of the provisions of the said statute will tend to impair contractual obligations of the complainants, in violation of the provisions, or any of them, of the Constitution of the United States.

(10) That it does not appear from the facts averred in complainants' bill of complaint that an enforcement of the provisions of the said statute will require or result in an arbitrary and unlawful classification of the business of complainants for purposes of taxation, in violation of the provisions, or any of them, of the Constitution of the United States.

The section of the act called in question by the bill of complaint reads as follows:

'Sec. 35. Merchants, druggists and storekeepers shall pay a license tax as follows: For the first one thousand dollars or fraction of one thousand dollars of stock of merchandise, three ($3.00) dollars in each county and for each place of business, and one and one-half ($1.50) dollars for each additional thousand or fraction thereof; but dealers in merchandise at wholesale only, shall pay a license tax of one and one-half ($1.50) dollars for each one thousand dollars of their stock of merchandise: Provided, that the words 'stock of merchandise,' shall be held to mean the cash value of the merchandise or goods on hand and not the amount of the capital stock invested in the business: Provided further, that any merchant keeping sewing machines in stock for sale in the same manner as other merchandise shall not be taxed as a sewing machine agent or dealer: Provided further, that each and every person, firm or corporation, who shall offer with merchandise bargained or sold in the course of trade any coupon, profit-sharing certificate, or other evidence of indebtedness or liability, redeemable in premiums, shall pay annually a state license tax of five hundred ($500.00) dollars, and a county license tax of two hundred and fifty ($250.00) dollars, in each and every county in which said business is conducted or carried on, and if more than one place of such business shall be operated by any person, firm or corporation, a separate state and county license shall be taken out for each such place; and no person, firm or corporation shall offer with merchandise, bargained or sold as aforesaid, any coupon, profit-sharing certificate or other evidence of indebtedness or liability, redeemable by any other person, firm or corporation than the one offering the same without paying the above license for each other person, firm or corporation who may redeem the same. The license prescribed in this section shall be in addition to other licenses prescribed by this act. Any person violating any of the provisions of this section, whether acting for himself or as agent of another, shall on conviction thereof be punished by fine not exceeding one thousand dollars or by imprisonment in the county jail

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