State Ex Rel. Lane Drug Stores, Inc. v. Simpson , 122 Fla. 582 ( 1935 )

All members of the court are agreed that a gross receipts tax cannot, under the Constitution, be graduated in the manner attempted by Subdivision B of Section 4 of the Act here under review. That the tax imposed by Subdivision B is, in substance and effect, a tax on gross receipts is clear, and the only part of that subdivision which can possibly be upheld is "Class 1," imposing a tax of one-half of one per cent., which, by the elimination of the other enumerated classes, makes possible a construction allowing a uniform application of a gross receipts tax of one-half of one per cent. on the gross receipts of each and every store, regardless of the character of the ownership or management. This construction takes some liberties with the general scheme set up by the Act, but is deemed by the court to be justified by the very broad and unusually comprehensive language of the saving clause embodied in the Act and quoted in Judge Smith's opinion.

Frankly, I have some doubt as to the constitutionality, under our Florida Constitution, of the provisions contained in Subdivision A of Section 4 of the Act, not only for the reasons advanced by Mr. Justice BUFORD in his dissenting opinion in this case, but also for the reasons set forth in my dissenting opinion in the case of Liggett Co. v. Amos, 104 Fla. 609, 647, 141 So.2d 153, 167, 172, which was concurred in by Mr. Justice ELLIS. But my views in that case were overruled by the majority of the court, not so much in regard to he principles enunciated as in regard to the application of those principles to the Act of 1931 then under review in the light of the facts pleaded, as well as those of which the court took judicial notice. And the majority view and holding of this court, in that case, involving the fundamental question of legislative power now before us, was in the main upheld and affirmed by the federal Supreme Court (See Liggett Co. v. Lee, 288 U.S. 517, 53 Sup. Ct. 481, 77 L. Ed. 929, 85 A.L.R. 699), while the conclusions in my dissenting opinion were sustained only as concerned one feature of the 1931 Act, that is, that portion of the Act then under review which imposed a greater tax per store on all stores in a chain if any one or more of the stores were located in another county or counties.

In view of the precedents set by the opinion and decision of this Court in the Liggett case, as well as the opinion and decision of the national Supreme Court, in the same case, also in view of the very broad and liberal language of the latter court in subsequent cases, notably the Fox case concerning the classification power of the Legislature, in the imposition of excise taxes, I am not able to confidently affirm that Subdivision A of Section 4 of the 1935 Act is unconstitutional and void beyond all reasonable doubt, and while I yet entertain some doubt of the constitutionality of that important part of the Act, I feel that I should resolve such doubt in favor of the action of the Legislative branch of our State government, the rule in this jurisdiction being that the courts should never strike down an Act of the Legislature unless it is unconstitutional beyond all reasonable doubt.