State Ex Rel. McLeod v. Harvey , 125 Fla. 742 ( 1936 )

I concur in much that is said in the opinion of Mr. Justice BUFORD, but not in the conclusion that has been reached by him on the premises he has assumed and stated.

Passing sub silentio the propriety of entertaining an attack on the constitutionality of Section 12A of Chapter 17257, Acts of 1935, in a proceeding of this kind wherein the respondents have only ministerial duties to perform in connection with the holding of the general election of 1936, which must be held at all events, it seems to me that said Section 12A of the Act is not amenable to the objection of unconstitutionality urged against it, for the reasons I shall hereafter set forth.

Chapter 17257, supra, commonly known as the "Slot Machine Act, undertakes to create and provide for conferring on certain specified applicants, a special and extraordinary license privilege, namely, the privilege of operating a particular type of gambling device for profit. Such privilege is one that the Legislature had authority to confer absolutely, or upon condition, and to make the condition of it precedent or subsequent. In the case of Chapter 17257, the Legislature has elected to confer the privilege on condition subsequent, the condition subsequent of the privilege being that it shall remain enjoyable only during such time after the Act took effect as the voters of the respective counties of the State shall approve of its being enjoyed by failing to vote for its withdrawal in accordance with the Legislature's expressed determination that upon such contingency it shall expire.

It is therefore obvious that insofar as the Act in question provides for granting or withdrawing slot machine licenses by popular vote and by counties, it is solely an exercise of the police power of the State. This is so because absent the creation and continuance in existence of the special privilege conferred by the Act to engage in a business that would otherwise be a violation of the original laws against gambling, the revenue features of the Act have no subject upon which they can operate.

The revenue impositions of the "Slot Machine Act" may therefore be said to provide for the imposition of a State tax only upon a conditional privilege capable of being enjoyed and actually enjoyed in accordance with the permission that the Act gives to enjoy it. And since the Act confers only a conditional privilege, and not an absolute privilege, to procure licenses to operate slot machines (or to renew the same from year to year), the revenue features of the Act are only incidentally affected by the happening of the contingency specified as the condition upon which the privilege was granted in the first instance, the condition being that the privilege should cease to exist upon the contingency of an election expressing the will of a majority of a particular county's electors against its further enjoyment in that locality.

That the Legislature may provide for special privileges and licenses to be granted upon any reasonable conditions precedent or subsequent that may see fit to impose, and that it may provide for the withdrawal of such licenses and privileges upon like reasonable conditions, can hardly be successfully gainsaid. Indeed, there has been no such contention made or argued in the present case.

So it is, Section 12A of Chapter 17257, Acts of 1935, amounts to nothing more nor less than a legislatively expressed condition subsequent upon which the licenses to operate slot machines were provided to be granted and accepted in the first instance. Upon the invocation of such condition subsequent the licenses once granted become incapable of renewal after they have duly expired according to their terms.

An election called under said Section 12A and resulting in a decision to withdraw slot machine licenses in a particular county is accordingly not a repeal of the Slot Machine Act as to such county. This is so, because the Act remains in force in such county and criminal prosecutions can be had under it therein against unlicensed operators of slot machines who may thereafter attempt to carry on their business absent the special statutory license so to do. On the contrary, such election under Section 12A of the Act is simply the happening of the contingency upon which the licenses were conditionally granted (and voluntarily accepted) in the first instance, so whatever effect the withdrawal may have on the total of the revenue collections contemplated under the Act, it is no different in substance than it would be if all the slot machine operators in a particular county should voluntarily yield to the unvoted for, but otherwise expressed, wishes of the inhabitants of that county and fail to apply for any new licenses in such county at the expiration of the license period.

Hence no matter if half the counties of Florida call elections to vote out slot machines and do vote them out under the terms of Section 12A, Chapter 17257, supra, nevertheless, in its police as well as in its revenue features, remains a uniform statewide law, effective as a revenue measure throughout the State to still collect from every privilege holder in the State the amount of tax imposed upon any privilege licensed and enjoyed under it, and that it is likewise effective as a police measure to secure the elimination under heavy criminal penalties of all slot machines for which no licenses exist in counties that vote out the privilege of licensing.

The "Small Loan Act" conferred a special privilege accompanied by special licensing on certain classes of money lenders. This privilege was nothing more nor less than a special permit to violate the usury law as to interest rates on certain classes of loans. It carried with it the imposition of special taxes on the privilege thus granted. That Act limited, however, the enjoyment of the privilege granted by attaching to it a condition that it would only be obtainable and enjoyable in counties of more than 45,000 population. The "Small Loan Act" was therefore a dual police and revenue measure that applied only in counties of a certain classification. Yet that measure was upheld as constitutional by this Court in the case of Beasley v. Cahoon,109 Fla. 106, 147 Sou. Rep. 288.

And likewise in Ex Parte Lewis, 101 Fla. 624,135 Sou. Rep. 147, it was held that it was not an unconstitutional delegation of legislative power to the Board of County Commissioners to confer on them the authority to declare a closed fishing season of so many days in each year, notwithstanding some county commissioners might fail to declare such a cloture and thereby bring about an open season in one county while in the adjoining county the season would be closed. See also Olds v. State,101 Fla. 218, 133 So. 641.

Numerous other examples might be cited to show that the exercise of special statutory privileges can be constitutionally made dependent upon specified statutory contingencies and conditions provided to be decided by public bodies, executive officers or by popular vote, and that such provisions are generally considered by the courts as not amounting to an unconstitutional delegation of legislative power, because they do not affect the provisions of the law that the Legislature has passed, but merely affect the circumstances upon which the Legislature has decided in the law itself it shall become operative or inoperative, as the case may be. See: State, ex rel. Crim, v. Juvenal, 121 Fla. 69, 163 Sou. Rep. 569.

For the reason that I think it is plain that Section 12A of Chapter 17257, Acts of 1935, is not a referendum on the repeal of the slot machine law, or its revenue provisions, in particular counties desiring it, but is merely a means of expressing a condition upon which the Legislature intended the licenses to operate slot machines to be grantable in the first instance, I am of the opinion that said Section 12A is not unconstitutional as an unlawful delegation of legislative power to the electorate to suspend or repeal a validly enacted statute, but is sustainable as an appropriate legislative condition that may be annexed to any special statutory privilege that the Legislature may see fit to create and confer, whether taxed or untaxed in its enjoyment by the grantee.

In connection with what has just been stated, it is well to observe in conclusion that nothing in Section 12A of Chapter 17257 (Slot Machine Act) purports to authorize a local county referendum to be taken in Wakulla County, or in other counties, to decide the question whether or not slot machines duly licensed in Wakulla County shall continue to pay the State taxes that are imposed on slot machines in all the counties as a revenue measure. On the contrary, the referendum is expressly limited to the question whether or not licenses for the continued operation of such slot machines shall be renewed or reissued in Wakulla County, or in other counties, after the will of the local voters has been expressed adverse to the issuance of such licenses.

If the referendum was confined to the incidence of the tax, obviously the point would be well taken that such referendum would be unconstitutional as an unauthorized attempted delegation of legislative powers to the voters to decide the policy of levying and collecting, or not levying and collecting, a State tax. Indeed, the Legislature has no authority to submit to a statewide referendum the question whether or not a particular statewide tax shall be levied or collected as that decision is one that the Legislature and the Legislature alone must make.

I agree with Mr. Justice BUFORD in his conclusion that elections held under Section 12A operate in future only, and that they have no effect as a wiping out of licenses already outstanding and paid for at the time of the voting, until the period taxed and paid for the enjoyment of the license has run. To hold otherwise, even if the language of the Act were susceptible of that construction, which I do not think it is, might render the section subject to the very criticism of unconstitutionality leveled against it as an unlawful delegation of legislative power to the voters of individual counties to affect the State revenues, since the denial of a privilege paid for in advance of the expiration of the license period, would impose the moral, if not the legal, duty on the Legislature to refund to the holders of unexpired licenses the money paid into the State Treasury for the unused portion of the licenses cancelled or recalled ante the date of their expiration.

WHITFIELD, C.J., and TERRELL and BROWN, J.J., concur.

ELLIS, P.J., and BUFORD, J., dissent.