American Bakeries Co. v. City of Haines City , 131 Fla. 790 ( 1938 )

I dissent from the majority opinion filed in this cause for the following reasons:

First: Section 39 of Chapter 18011, Acts of 1937, provides, "That nothing herein shall be construed to repeal any license tax now imposed by law and not specifically repealed hereby." Section 5 of Chapter 18011, Acts of 1937, provides:

"Vehicles used by any person for the sale and delivery of tangible personal property at wholesale from his established place of business on which a license is paid, shall not be construed to be separate places of business and no license may be levied on such vehicles or the operator thereof as salesmen or otherwise, by the State or any County or Municipality, any other law to the contrary notwithstanding."

The majority opinion holds that the above quoted portion of Chapter 18011, Acts of 1937, is legally sufficient to strike down Sections 115 and 116 of Chapter 12790, Laws of Florida, 1927 (the present charter for Haines City), which reads as follows:

"Sec. 115. LICENSES. — The City Commission is authorized to levy and impose license taxes by ordinance, for the purpose of regulation and revenue, upon all occupations, and upon any and all privileges and to create and fix the amounts to be paid; to provide for the collection of the same, and to provide penalties for failure or refusal to pay such license taxes. All such license taxes so imposed shall constitute a legal indebtedness to the City, which may be recovered in any Court of competent jurisdiction and no property of such debtor shall be exempt from forced sale, after due process of law, for such indebtedness. The City Commission may, by ordinance, provide for licensing, the keeping of dogs, and for the destruction of dogs, when the owner or keeper thereof shall not comply with the regulations prescribed by ordinance in effect thereto, and for the punishment of persons violating the city ordinance upon this subject.

"Sec. 116. PERIOD COVERED FOR LICENSES. — Licenses shall be issued for the periods, and be transferable as provided by the General Laws for State License. The agent or agents of non-resident proprietors shall be severally responsible for carrying on business in like manner as if they were proprietors. The fact that any person, firm or corporation reporting himself or itself as engaged in any business, calling or profession or occupation for the transaction of which a license is required, or that person exhibiting a sign or advertisement indicating engagement in such business calling or profession or occupation, shall be conclusive evidence of the liability of such person, firm or corporation to pay a license."

Section 8 of Article VIII of the Constitution of Florida, gave the Legislature the power to enact Chapter 12790, Acts of 1927. The question as to whether the general Act, being Chapter 6924, Acts of 1915, should prevail over the Charter provision of the City of Pensacola, being Chapter 6087, Acts of 1909, was before this Court in the case of Sanders v. Howell, 73 Fla. 563, text p. 570, 74 So. 802, when this Court, speaking through Mr. Justice SHACKLEFORD, said:

"We fully approve of this holding. We would also call attention to the fact that Chapter 6924 contains no repealing clause. Unless, then, Chapter 6924 and Section 1 of Chapter 6087 of the Acts of 1909 are so repugnant and irreconcilable as to indicate a legislative intent that the former should repeal pro tanto or modify the latter, both statutes must be permitted to stand. In Florida East Coast Ry: Co. v. Hazel, 43 Fla. 263,31 South. Rep. 272, 99 Amer. St. Rep. 114, we held that `Repeals by implication are not favored, and in order that the court may declare that one statute repeals another by implication, it must appear that there is a positive repugnancy between the two, or that the last was clearly intended to prescribe the only rule which should govern the case provided for, or that it revises the subject-matter of the former.' See also State v. County of Gadsden, 63 Fla. 620,58 South. Rep. 232. In Ferguson v. McDonald, 66 Fla. 494,63 South. Rep. 915, we held that, `Where there are valid local or special laws relating to the powers and government of particular municipalities that are in conflict with the general statutory law, such local or special laws prevail.' Under these authorities, we must hold that Section 1 of Chapter 6087 of the Acts of 1909 has not been modified or repealed by Chapter 6924 of the Acts of 1915."

It appears that every question raised as to the repeal of the charter provisions of the City of Haines City as stated in the majority opinion is fully answered by Sanders v. Howell, supra.

Second: This Court has cited with approval the rule expressed in Sanders v. Howell, supra, in the following cases: Stephens v. Anderson, 75 Fla. 575, 79 So. 205; State, ex rel. Young, v. Duval County, 76 Fla. 180, 79 So. 692; Ex Parte Davidson, 76 Fla. 272,79 So. 727; State, ex rel. Triay, v. Burr, 79 Fla. 290,84 So. 61; City of St. Petersburg v. Pinellas Power Co., 87 Fla. 315,100 So. 509; City of Apalachicola v. State, 93 Fla. 921,112 So. 618; Abell v. Town of Boynton, 95 Fla. 984, 117 So. 507; West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361; State v. City of Miami, 101 Fla. 292, 134 So. 608; City of Lake Alfred v. Lawless,102 Fla. 84, 135 So. 895; Flamingo Park Warehouse Co. v. Solberg,113 Fla. 45, 151 So. 281; Critchlow v. Maryland Casualty Co.,116 Fla. 226, 156 So. 440; Broward v. Garrison Investment Corporation, 121 Fla. 45, 163 So. 212; State, ex rel. Muldoon, v. McCarthy, 112 Fla. 519, 165 So. 700; Langston v. Lundsford,122 Fla. 813, 165 So. 898; Scott v. Stone, 129 Fla. 784, 176 So. 852.

The majority opinion violates the doctrine of stare decisis.

Third: In the case of State v. Sanders, 79 Fla. 835,85 So. 333, this Court considered and had before it the existence or non-existence of a general repealing clause. It held that if the general law does not in some express terms repeal or supersede the local law, the local law will prevail, and this rule should be applied to the case at bar. It cannot strike down a statute by implication as is attempted here.

Fourth: In Langston v. Lunsford, 122 Fla. 813, 165 So. 898, based on Chapter 16774, Acts of 1935, there is contained a general repealing clause, whereas Chapter 18011, Acts of 1937, which seeks to strike the taxing authority of the City of Haines City, contained no general repealing clause. The fact that the 1937 Legislature, by Chapter 18011, failed and omitted to place therein a general repealing clause is conclusive that it was not the intention of the Legislature to repeal Chapter 12790, Laws of 1927, charter of Haines City upon which the ordinance in question is predicated.

Fifth: In City of Orlando v. Gill, 128 Fla. 139, 171 So. 224, the general law controlled the subject of licensing pool halls and fixed the amount to be collected in the way of taxes for: (a) State; (b) county; (c) municipality; and contained the following clause, "All laws or parts of laws in conflict with or inconsistent herewith are hereby repealed and superseded. But this shall not be construed as repealing any law consistent therewith." It stands to reason that a different policy was before the Legislature with reference to "pool halls only" and the right of a municipality to tax the same. We find no such language in the repealing clause in Chapter 18011. Neither was it the intention of the Legislature to change the policy of business affecting the petitioners here and no intention is clear to deprive municipalities of this revenue.

We are forced to recognize the previous ruling of this Court in Sanders v. Howell, supra. The case of City of Orlando v. Gill has no bearing upon the case at bar. The case of Stewart v. DeLand-Lake Helen Special R. B. Dist., 71 Fla. 158, 71 So. 52, has no application to the principle of law involved in the case at bar, except fixing rules controlling a court in making statutory construction.

Sixth: This Court has held in a number of cases in testing the validity of, as well as in construing a statute, resort may be had if necessary to the history of the legislation, to the public history of the times in which it was passed, and it may be compared with cognate laws in order to determine its purpose, meaning and effect as an aid in determining its validity. See Sheip v. Amos, 100 Fla. 863, 130 So. 699; State, ex rel. Davis, v. City of Clearwater, 106 Fla. 761, 139 So. 377. This Court can take judicial notice of common knowledge prevalent in Florida previous to and at the time of the passage of Chapter 18011 by the 1937 Legislature. We find many of the municipalities of Florida financially embarrassed. In some instances municipalities were heavily involved with high rates of interest. Many were financially unable to pay interest on bands or to extend the time of payment. Taxpayers of many of the cities and towns knew it was impossible to pay the heavy interest rate and declined to pay taxes. It was difficult to meet the current expenses of operating the towns and cities. Payrolls had not been met in many months, other items were in default and it was difficult to maintain the costs of government. The municipalities of the State organized and were before the 1937 Legislature begging for financial assistance at the very time of the passage of Chapter 18011. They represented that their bonds were in default, the taxpayers were on a strike, payrolls past due, current bill unpaid, suits being filed, and heavy costs of municipal government to meet. They asked the 1937 Legislature for financial aid from the gasoline tax, pointing out that the cities and towns in many instances formed connecting links on the State highway system of Florida; that if help was extended bonds could be stabilized, payrolls met, current debts liquidated, the taxpayers would respond and that this policy would assist Florida and the nation in their financial rehabilitation program. The municipalities of Florida requested the 1937 Legislature to see that right, fairness and justice should prevail. It is difficult to conceive under these facts and circumstances that the limited resources of cities and towns should be further reduced by Chapter 18011. The members of the 1937 Legislature did not intend that the cities and towns of Florida should be deprived of this revenue.

Section 4 of the Declaration of Rights of the Constitution of Florida provides:

"All courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay."

If justice and right are to be administered in this cause the revenues of the City of Haines City shall continue in the future as in the past and the decree appealed from should be affirmed.

ON PETITION FOR REHEARING