Jackson Grain Co. v. Lee , 139 Fla. 93 ( 1939 )

On April 13, 1936, the Circuit Court of Leon County, Florida, entered a final decree in the case of Jackson Grain Company, a corporation, X-Cel Stores, Inc., a corporation, and Seminole Feed Company, a corporation, plaintiffs, v. J.M. Lee, as Comptroller, defendant, perpetually enjoining J.M. Lee, as Comptroller, from enforcing or attempting to enforce as against the plaintiffs Classes 2 to 6, inclusive, of Subdivision B of Section 4 of Chapter 16848, Laws of Florida, Acts of 1935. Likewise perpetually enjoining J.M. Lee, as Comptroller, from enforcing as against the plaintiff the provisions of Subdivision B of Section 4 of said Chapter as to the gross receipts arising from the sale of bakery products, dairy products, ice, insecticides, fungicides, fertilizer and agricultural or horticulcultural products specified in Subdivision (f) of Section 2 of Chapter 16848, supra.

On the 1st day of December, 1936, this Court, in the case of Liggett Drug Company v. Lee, 126 Fla. 359, 171 So. 326, in construing Subdivision (f) of Section 2 and Subdivisions (a) and (b) of Section 4 of Chapter 16848, Acts of 1935, held that a tax on gross receipts was collectable against bakery products, dairy products, ice, insecticides, fungicides, fertilizer and agricultural or horticultural products or implements when sold by those who were not the producers or manufacturers thereof.

On the 10th day of September, 1937, the Circuit Court of Leon County, Florida, entered an order in the case of Jackson Grain Company, X-Cel Stores, Inc., and Seminole Feed Company v. J.M. Lee, as Comptroller, granting leave and authority on the part of J.M. Lee, as Comptroller, to file a bill of complaint in the nature of a bill of review, having as its objective the correction of the law expressed in the final decree entered by the Circuit Court of Leon County, Florida, supra, so as to conform with the rule enunciated by this Court in the case of Liggett Drug Co. v. Lee, supra. In conformity with said order so made a bill of complaint in the nature of a bill of review was filed in the Circuit Court of Leon County on the 30th day of September, 1937, and the Jackson Grain Company, X-Cel Stores, Inc., and Seminole Feed Company were made defendants thereto. The bill of complaint in the nature of a bill of review had as its objective and sought to modify, vacate, change, or annul the following portion of the final decree dated April 13, 1936, entered by the Circuit Court of Leon County, Florida, viz.:

"That Class 1 of Subdivision B of Section 4 of the Act is valid and enforceable but that the gross receipts received from the sale at retail of any bakery products, dairy products, ice, insecticides, fungicides, fertilizer and agricultural or horticultural products are by Subdivision (f) of Section 2 of this Act exempted from the tax levied by Subdivision B of Section 4 of said Act, by whomsoever sold; * * * And that said defendant be, and he hereby is, perpetually enjoined and restrained from enforcing the provisions of Subdivision B of Section 4 of the Act as against the plaintiffs, or either of them, in so far as the same covers the gross receipts from sales of bakery products, dairy products, ice, insecticides, fungicides, fertilizer and agricultural or horticultural products."

On December 6, 1937, counsel for defendants in the bill of complaint in the nature of bill of review filed a motion to dismiss on seventeen separate grounds, and on April 29, 1938, the Circuit Court of Leon County, Florida, entered its order denying the motion to dismiss the bill of complaint in the nature of a bill of review filed in compliance with an order of the court granting leave and authority so to do on the part of J.M. Lee, as comptroller of the State of Florida, and an appeal has been perfected therefrom and the order made by the Circuit Court of Leon County, Florida, denying the motion to dismiss is assigned as reversible error in this Court.

The appellants, since April 13, 1936, the date of entry of the final decree sought to be modified, altered and changed, entered by the Circuit Court of Leon County, Florida, have not paid the taxes as required by other business enterprises of Florida. The decision of this Court in Liggett Drug Co. v. Lee,supra, was filed on December 1, 1936, several months after the date of entry of the final decree sought to be altered or modified in this case. It is contended that the appellants should have filed an original bill within six months after April 13, 1936, and for this reason the order appealed from is erroneous. Likewise, an appeal should have been taken by the Attorney General within the six months' period prescribed by statute; that the decree dated April 13, 1936, cannot be altered, changed or modified and the issues put at rest by the decree cannot now be inquired into because of the doctrine or law of res adjudicata, and the appellees cannot be required to pay the taxes demanded by Chapter 16848, notwithstanding the fact that other business enterprises are required so to do.

We cannot agree to this conclusion, because all persons, firms and corporations of Florida are equal before the law and especially is this true on the question of assessment and collection of taxes. It is the contention of the Attorney General that the appellees are liable for taxes under Chapter 16848, supra, and the liability began on September 10, 1937, the date of the order granting leave and authority to file a bill of complaint in the nature of a bill of review seeking to alter, amend, modify and change the final decree dated April 6, 1936, under which appellants claim immunity from taxes demanded by Chapter 16848.

The power to alter, amend, change or modify the final decree dated April 13, 1936, by a bill of complaint in the nature of a bill of review is fully sustained by the decisions of this Court. See City of Winter Haven v. Lake Elbert Citrus Fruit Co., 122 Fla. 422, 165 So. 360; In re: Newkirk, 114 Fla. 552,154 So. 323; Miami Bank Trust Co. v. Mahlstedt, 107 Fla. 282,144 So. 659; Sapp v. Warner, 105 Fla. 246, 141 So. 124,143 So. 648, 144 So. 481.

There is no error in the record and the order appealed from is hereby affirmed.

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

BUFORD, J., concurs specially.

THOMAS, J., dissents.