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The Legislature of 1931 in Extraordinary Session enacted Chapter 15624, Laws of Florida, imposing licenses and fees for opening, operating, maintaining, or establishing stores in this State and to define the duties of the Comptroller and Tax Collectors of the several counties with reference thereto.
This suit was brought by appellants pursuant to Section
Fourteen of the 1931 Chancery Act (Chapter 14658, Acts of 1931) to test the validity of Chapter 15624 generally referred to as the Chain Store Act. The chancellor below held the act valid as against the attack made on it and granted the defendant's motion to dismiss the bill of complaint at the cost of the complainants. Appeal was taken from that decree.
It is first contended that Chapter 15624 was enacted in violation of Section Eight of Article Four of the Constitution of Florida in that certain amendments thereto adopted in the Senate June 24, 1931, and in the House of Representatives June 19, 1931, constituted "legislative business" and were not adopted by a two-thirds vote, neither was the subject matter of said Act embraced within the Governor's proclamation of June 6, 1931, calling the Legislature in Extraordinary Session.
Section Eight of Article Four of the Constitution provides for calling the Legislature in Extraordinary Session and limits legislative business transacted at such sessions to that stated in the proclamation of the Governor calling the session or that called to the attention of the Legislature while in session or that initiated while in session by a vote of two-thirds of each house. We think the subject matter of Chapter 15624 was fully comprehended in the proclamation of the Governor calling the Legislature in Extraordinary Session but if it was not so comprehended the record discloses that both the House of Representatives and the Senate agreed by a two-thirds vote to receive and consider committee substitute for House Bill 8-X which was finally adopted and became Chapter 15624. The two-thirds vote required by Section Eight of Article Four applies only to the matter of taking up "legislative business" for consideration not embraced in the Governor's proclamation or called by him to their attention while in session. After agreeing by two-thirds vote to consider any "legislative business" it then takes the regular course under the
rules and may be amended, adopted, or rejected by a majority vote. For all the record shows Chapter 15624 was adopted by a two-thirds vote.
It is next contended that Section Five of Chapter 15624 creates arbitrary and unreasonable discriminations between chain or multiple store retail merchants and single store retail merchants engaged in the same class of business contrary to the equal protection and the due process clauses of the Federal Constitution and Sections One, Four, and Twelve of the Declaration of Rights, Constitution of Florida. This is the dominant question presented and the answer to it is decisive of the case.
Section Five, Chapter 15624 is as follows:
"Section 5. Every person, firm, corporation, association or co-partnership opening, establishing, operating or maintaining one or more stores or mercantile establishments within this State, under the same general management, supervision or ownership, shall pay the license fee hereinafter prescribed for the privilege of opening, establishing, operating or maintaining such stores or mercantile establishments. The license fee herein prescribed shall be paid annually, and shall be in addition to the filing fee prescribed in Sections 2 and 4 of this Act.
" 'The license fees herein prescribed shall be as follows:
" '(1) Upon one store, the annual license fee shall be Five Dollars for each such store.
" '(2) Upon two stores or more, but not exceeding fifteen stores, where the same are located in any one county, the annual license fee shall be Ten Dollars for each such additional store.
" '(3) Upon two stores or more, but not to exceed fifteen stores, where the same are located in different counties, the annual license fee shall be Fifteen Dollars for each such additional store.
" '(4) Upon each store in excess of fifteen, but not to exceed thirty, when all are located in any one county, the annual license fee shall be Fifteen Dollars for each such additional store.
" '(5) Upon each store in excess of fifteen, but not to exceed thirty, where the same are located in different counties, the annual license fee shall be Twenty Dollars for each such additional store.
" '(6) Upon each store in excess of thirty, but not to exceed fifty, where all are located in any one county, the annual license fee shall be Twenty Dollars for each such additional store.
" '(7) Upon each store in excess of thirty, but not to exceed fifty, where the same are located in different counties, the annual license fee shall be Thirty Dollars for each such additional store.
" '(8) Upon each store in excess of fifty, but not to exceed seventy-five stores, where all are located in any one county, the annual license fee shall be Thirty Dollars for each such additional store.
" '(9) Upon each store in excess of fifty, but not to exceed seventy-five, where the same are located in different counties, the annual license fee shall be Forty Dollars for each such additional store.
" '(10) Upon each store in excess of seventy-five, where all are located in any one county, the annual license fee shall be Forty Dollars for each such additional store.
" '(11) Upon each store in excess of seventy-five, where the same are located in different counties, the annual license fee shall be Fifty Dollars for each such additional store.
" 'In addition to the above amounts, Three Dollars for each and every One Thousand Dollars of value of stock carried in each store for sale in such store.' "
As a prelude to the exegesis which follows we may say that remarkably few cases have made their appearance in this Court so thoroughly prepared and presented. Counsel for Appellants have supported their cause by many publications from the pens of some of the outstanding specialists in this country. These publications are devoted exclusively to the origin, history, economic, and social development of the chain store business and while they do not treat the legal aspect of the case with which we are here confronted
they throw much light on it. We had conceived the chain store as a product of our industrial era but by a well established chronology its roots sink much deeper in our history, so deep in fact that it is coeval with the discovery of America, and it may be entirely possible that Columbus provisioned the Pinta, the Nina, and the Santa Maria from a chain store when he set out on his famous voyage in 1492.
This Court has repeatedly held that to construe or test the validity of a legislative enactment, resort may be made to the history of the legislation, the contemporary conditions, political, industrial, and social of the community at whose suggestion the statute was promulgated and that it may be compared with cognate laws to determine its meaning and effect. Lee vs. Clearwater Growers Association, 93 Fla. 214,111 So. 722; Amos vs. Matthews, 99 Fla. 1, 126 So. 308; Jerome H. Sheip Co. vs. Amos, 100 Fla. 863, 130 So. 699; Gray vs. Central Florida Lumber Co., decided by this Court March 15, 1932.
The term "due process of law," or "law of the land," as written in Magna Carta, was engrafted on the Federal and State Constitutions from the Petition of Right where it appears to have been first used, though it has the same meaning regardless of the form in which used. As applied to life, liberty, or property, due process of law is a fundamental, personal, Constitutional guaranty and as against the United States it is provided by the Fifth and Fourteenth Amendments. As against the States, it is provided by the Fourteenth Amendment and as against the State of Florida, it is provided by Sections Four and Twelve of the Declaration of Rights. The language of the Fifth and Fourteenth Amendments as to due process is identical yet they were engrafted on the Constitution under very different circumstances. We do not discuss these circumstances here except to say that while the Fifth Amendment as a restraint
on the Federal government preceded the Fourteenth by most one hundred years, it was rarely invoked while as soon as the restraint against the states was provided in the Fourteenth Amendment, the dockets of the courts were crowded with cases affecting it. Courts have generally proceeded on the assumption that the legal import of the phrase was the same in both Amendments yet it is admitted that circumstances might arise in which a different construction and application of their provisions would be proper. French vs. Barber Asphalt Paving Co., 181 U.S. 324, 328, 21 Sup. Ct. Rep. 625, 45 L.Ed. 879. See also Slaughter House Cases, 16 Wall. (U.S.) 36, 21 L.Ed. 394.
The Supreme Court of the United States has consistently declined to attempt a precise definition of "due process of law," Davidson vs. New Orleans, 96 U.S. 97, 101, 24 L.Ed. 616, but has frequently commended this Constitutional guaranty, Holden vs. Hardy 169 U.S. 366, 389, 18 Sup. Ct. Rep. 383,42 L.Ed. 780, Yick Wo vs. Hopkins, 118 U.S. 356,6 Sup. Ct. Rep. 1064, 30 L.Ed. 220; Bank of Columbia vs. Okley 4 Wheat. (U.S.) 235, 244, 4 L.Ed. 559. Its meaning is discussed generally in Kennard vs. Louisiana, 92 U.S. 480, 23 L.Ed. 478; Davidson vs. New Orleans 96 U.S. 97, 24 L.Ed. 616; Ex Parte Wall107 U.S. 265, 2 Sup. Ct. Rep. 569, 27 L.Ed. 552; Hagar vs. Reclamation Dist. No. 108, 111 U.S. 701, 4 Sup. Ct. Rep. 663, 28 L.Ed. 569; Missouri Pac. Ry. Co. vs. Humes 115 U.S. 512,6 Sup. Ct. Rep. 110, 29 L.Ed. 463; Freeland vs. Williams 131 U.S. 405,9 Sup. Ct. Rep. 763, 33 L.Ed. 193; Hallinger vs. Davis 146 U.S. 314,13 Sup. Ct. Rep. 105, 36 L.Ed. 986.
As applied to crimes, life or liberty being involved; "due process of law" requires that all persons so charged be tried in a court of justice according to the rules and regulations provided by law for its orderly administration. When orderly administration is supplanted by arbitrary,
unreasonable or unwarranted exercise of governmental power "due process of law" is denied. As applied to property, "due process of law" presents a more complex question. For this reason on pain of failure to be sufficiently comprehensive and perspicuous, state and federal courts have generally determined the application of the principle by judicial inclusion and exclusion as the case arises and have made no attempt at a comprehensive definition to fit every case. Due process of law is in its final analysis a judicial question and whenever invoked requires opportunity for hearing and defense in proceedings appropriate to the case and just to the parties affected. It must be pursued in an orderly manner in proceedings adapted to the end to be attained. It implies conformity with the natural and inherent principles of justice for the protection of individual rights, forbids the taking of one's property without compensation and requires that no one be condemned in person or property without opportunity to be heard. Holden vs. Hardy 169 U.S. 366, 18 Sup. Ct. Rep. 383,42 L.Ed. 780. As applied in the Dartmouth College Case (4 Wheat. (U.S.) 518, 4 L.Ed. 629) Mr. Webster defined it as the law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning of all this is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society in our democracy.
The "equal protection of the laws," like "due process of law," as applied to life, liberty, and property is likewise a fundamental, personal, Constitutional guaranty, and as against the States and the United States is provided by the Fourteenth Amendment. As against the State of Florida, it is secured by Sections One and Four of the Declaration of Rights. Both rights are ultimately of judicial determination and are frequently treated together.
The equal protection clause, like the due process clause,
is generally not susceptible of exact delimitation. It is also said by some courts that no definite rule in respect of either, which will automatically solve the question in specific instances, can be formulated. Certain general principles, however, have been established, in the light of which the cases as they arise are to be considered and determined. It has been said generally that "equal protection of the law" means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes of persons in the same place and in like circumstances. Connolly vs. Union Sewer Pipe Co., 184 U.S. 540, 558,22 Sup. Ct. Rep. 431, 46 L.Ed. 679; Bowman vs. Lewis 101 U.S. 22,25 L.Ed. 989; Kentucky Railroad Tax Cases 115 U.S. 321, 6 Sup. Ct. Rep. 57, 29 L.Ed. 414; Magoun vs. Illinois Trust and Savings Bank, 170 U.S. 283, 293; 18 Sup. Ct. Rep. 594, 42 L.Ed. 1037.
Prior to the adoption of the Fourteenth Amendment, the law of the states in terms insured equal protection to all persons. The Fourteenth Amendment conferred no new or additional right but merely extended the protection of the Federal Constitution over the right to life, liberty, and property that previously existed under all State Constitutions. The right so extended is secured to all persons whether citizens or not and that which constitutes denial of equal protection will depend largely on what protection has been extended or what rights have been conferred under the Constitution and laws of the particular state in which the question arises. The rule that each case must rest on its own facts is particularly applicable to this class of cases. Nashville C. St. L. Ry. vs. Taylor 86 Fed. 168, text 185.
The prohibition against the denial of equal protection "was not intended to compel the state to adopt an iron rule of equal taxation" nor "to prevent a state from adjusting its system of taxation in all proper and reasonable
ways." Bell's Gap R. Co. vs. Pennsylvania 134 U.S. 232,10 Sup. Ct. Rep. 533, 33 L.Ed. 893, 892. Neither does it prevent the states from distinguishing, selecting, and classifying objects of legislation within a wide range of discretion, provided only that the discretion must be based on some reasonable ground. If the statute or classification is applicable to all persons under like circumstances and subjects no one to arbitrary exercise of power or if it operates alike on all persons similarly situated, it is sufficient. Tinsley vs. Anderson171 U.S. 101, 18 Supt. Ct. Rep. 805, 43 L.Ed. 91; Walston vs. Nevin128 U.S. 578, 9 Sup. Ct. Rep. 192, 32 L.Ed. 544. The classification may be limited as to objects or territory if all persons subject to it are treated alike under like circumstances and conditions. Hayes vs. Missouri 120 U.S. 68,7 Sup. Ct. Rep. 350, 30 L.Ed. 578; Giles v. Teasley193 U.S. 146, 24 Sup. Ct. Rep. 359, 48 L.Ed. 655; Toyota vs. Territory of Hawaii 226 U.S. 184, 33 Sup. Ct. Rep. 47, 57 L.Ed. 180.
"Classification must have relation to the purpose of the legislature, but logical appropriateness of the inclusion or exclusion of objects or persons is not required. A classification may not be merely arbitrary, but necessarily there must be great freedom of discretion even though it result in ill advised, unequal, and oppressive legislation;" Heath
Milligan Mfg. Co. vs. Worst, 207 U.S. 338,28 Sup. Ct. Rep. 114, 52 L.Ed. 236; Mobile County vs. Kimball 102 U.S. 691,26 L.Ed. 238.
The Supreme Court of Pennsylvania has held that whether a classification under a statute is a denial of equal protection of the laws is a legislative question, subject to judicial revision only so far as to see that it is founded on real distinctions in the subjects classified, and not on artificial or irrational ones used for the purpose of evading the Constitutional prohibition. If the distinctions are genuine, the courts cannot declare them void, though they may not consider them made on a sound basis. The
test is not wisdom but good faith in the classification. Seabolt vs. Commissioners of Northumberland Company 187 Pa. St. 318, 41 A. 22; Commonwealth vs. Randall 225 Pa. 197,73 A. 1109.
In the imposition of an excise tax, the rule of equality and uniformity as guaranteed by Article Nine of the Constitution is not involved. Excise taxes have been imposed in many ways but so long as they are reasonable, not unjustly discriminatory, nor arbitrary, whimsical, irrational, grossly oppressive, plainly unequal or contrary to common right, they will be upheld. State ex rel Bonsteel vs. Allen 83 Fla. 214,91 So. 104; Jackson vs. Neff 64 Fla. 326, 60 So. 350; Peninsular Casualty Co. vs. State 68 Fla. 411, 67 So. 165; Amos vs. Gunn84 Fla. 285, 94 So. 615; Amos vs. Matthews 99 Fla. 1,126 So. 308; Jerome H. Sheip Co. vs. Amos 100 Fla. 863, 130 So. 699.
Perfect equality in the operation of laws imposing a tax on real estate is recognized as impossible. It is even more difficult to arrive at uniformity in the operation of an excise tax, but mere inequality or lack of uniformity in its operation is no bar to its enforcement. It must be so arbitrary and oppressive as to clearly amount to a denial of due process or of equal protection and where, as here, the public health and safety are not involved, the ultimate test is whether or not the excise so imposed is so arbitrary and oppressive as to prohibit a great number, if not all persons from pursuing occupations otherwise lawful. Jerome H. Sheip Co. vs. Amos, supra; American Uniform Co. vs. Commonwealth 237 Mass. 42,129 N.E. 622.
It is generally recognized that in the application of an excise tax, some objects of taxation will bear the burden while others will be relieved of it, one business will be selected while another will be omitted and one class of property will be taxed while another will go tax free. This fact, however, or the fact that it bears more heavily on one person or corporation than on another, does not vitiate
the exercise. Clay Products Co. vs. United States 52 F.2d 1033.
The rule is thus recognized in this State that the judiciary cannot nor will it attempt to prescribe to the Legislature limitations on its power and while there is no express limitation on the power of the Legislature to provide an excise or tax on licenses, nevertheless, the organic requirements of due process and equal protection must be observed in imposing such a tax. Roach vs. Ephren 82 Fla. 523, 90 So. 609; Stateex rel. Bonsteel vs. Allen 93 Fla. 214, 91 So. 104, 26 A.L.R. 735; Hiers vs. Mitchell, 95 Fla. 345, 116 So. 81; Jackson vs. Neff 64 Fla. 326, 60 So. 350; Jerome H. Sheip Co. vs. Amos100 Fla. 863; 130 So. 699; Gray vs. Central Fla. Lumber Company, supra.
An examination of the Federal and Florida cases on this point discloses that the Federal rule governing the imposition of excises is more liberal than the rule in this state. Here, we require the observance of due process and equal protection in the imposition of such taxes while the Federal Courts hold that the reasonableness of an excise imposed for revenue purposes is a legislative prerogative that will not be inquired into by the courts either as to the amount of the tax or the property on which it is imposed. It makes no difference if the tax in practical effect operates to suppress the business taxed, that fact alone will not render an act of Congress unconstitutional. Hiers vs. Mitchell, supra; Jerome H. Sheip Co. vs. Amos, supra, both citing Federal cases supporting this rule. Others are cited in this opinion.
The second net result extracted from these opinions is that as to equal protection, the decisions of the Florida and Federal Courts are in harmony. In other words, there is no such thing as degree when we come to the admeasurement of equal protection while as to due process, the Federal rule is much more liberal than the state rule, due largely to the weight attached to the determination of that question by the legislative body.
But Appellants contend that in consideration of the factual situation in this case, due process and equal protection are denied them in that Subsections One, Two, Four, Six, Eight, and Ten of Section Five of Chapter 15624 as above quoted, create arbitrary and unreasonable discriminations between single store retail merchants and chain or multiple store retail merchants.
The answer to this contention turns on whether or not the classification of retail stores for purposes of taxation under Subsections One, Two, Four, Six, Eight, and Ten of Section Five, Chapter 15624, is reasonable, not arbitrary or capricious and rests upon some reasonable distinction in the subjects classified. In the nature of things, there cannot be an exact inclusion and exclusion of the persons or things classified. Ozan Lumber Co. vs. Union County Nat. Bank of Liberty207 U.S. 251, 28 Sup. Ct. Rep. 89, 52 L.Ed. 195.
The Subsections of Section Five as enumerated first lay an annual license tax on retail stores, increasing progressively with the number of stores under the same general management and located in a single county. The act in other words classifies or points out the chain store and imposes a different measure of taxation on it for the privilege of doing business from that imposed on stores owned and operated as individual units. Appellants say that there is no substantial difference between the business done and the manner of operating the chain store and the individual unit that would justify the classification on the basis of which the additional tax is imposed.
The record discloses material points of difference between chain stores and independently owned units. Such differences consist in the method of management, group control of store operation, frequent turnover, cooperative advertising, cooperative buying, suitable location, display of goods, training of employees, the combination of wholesale and retail functions under one control, and serving the
public in the manner the public desires to be served. These differences were ample basis for the classification complained of.
Appellants assert that like advantages are available to independent stores and when properly applied will produce the same or similar results. This assertion may be true in part but in the nature of things it cannot be true as a whole. It is common knowledge that the chain store possesses many distinguishing features that give it an advantage over the independent store dealing in the same commodities. Its method of integration for purposes of cooperative buying, community advertising, traffic in "selling talk," displaying, serving the public, unqualified control of wholesaling and retailing, and commanding capital could, under no circumstances become available to the independent store with such results as flow therefrom to the chain store.
This phase of the question is conclusively settled against the contention of Appellants by the Supreme Court of the United States in State Board of Tax Commissioners vs. Jackson283 U.S. 527, 51 Sup. Ct. Rep. 540, 75 L.Ed. 1248. Speaking through Mr. Justice Roberts, that Court said:
"The power of taxation is fundamental to the very existence of the government of the states. The restriction that it shall not be so exercised as to deny to any the equal protection of the laws does not compel the adoption of an iron rule of equal taxation, nor prevent variety or differences in taxation, or discretion in the selection of subjects, or the classification for taxation of properties, businesses, trades, callings, or occupations, Bell's Gap R. Co. vs. Pennsylvania 134 U.S. 232, 33 L.Ed. 892, 10 S.Ct. 533; Southwestern Oil Co. vs. Texas, 217 U.S. 114, 54 L.Ed. 688, 30 S.Ct. 496; Brown-Forman Co. vs. Kentucky, 217 U.S. 563, 54 L.Ed. 883, 30 S.Ct. 578. The fact that a statute discriminates in favor of a certain class does not make it arbitrary, if the discrimination is founded upon a reasonable distinction,
American Sugar Ref. Co. vs. Louisiana 179 U.S. 89, 45 L.Ed. 102, 21 S.Ct. 43, or if any state of facts reasonably can be conceived to sustain it. Rast vs. Van Deman L. Co., 240 U.S. 342, 60 L.Ed. 679, L.R.A. 1917A, 421, 36 S.Ct. 370, Ann. Cas. 1917B, 455; Quong Wing vs. Kirkendall 223 U.S. 59, 56 L.Ed. 350, 32 S.Ct. 192. As was said in Brown-Forman Co. vs. Kentucky, supra . . . "
State Board of Tax Commissioners vs. Jackson, just quoted from, is known as the Indiana Chain Store Case. The Indiana Act upheld in that case was different in some respects from the Florida Act involved in this case but these differences were not material to a disposition of the point under review. The Indiana Act applies to wholesale and retail stores, the Florida Act applies only to retail stores, the Indiana Act imposes a license fee of from three to twenty-five dollars, the Florida Act imposes a license fee of from five to fifty dollars when the stores are located in a single county and fifteen to fifty dollars when located in different counties, the Indiana Act graduates the license tax on the basis of the number of stores located in the state under a single management while the Florida Act graduates the license tax, first, on the basis of the number of stores located in a single county under a single management, and second, on the basis of the number of stores located in different counties under a single management.
As a second phase to this question, Appellants contend that in consideration of the factual situation in this case, the provision of Subsections Three, Five, Seven, Nine, and Eleven of Section Five of the Florida Act imposing a greater burden on retail merchants doing business in different counties under the same management than that imposed on retail merchants doing business in a single county under the same management is an arbitrary and an unreasonable discrimination.
It may be admitted that this question was not directly
before the Court in the Indiana Case, however, what we have said in this opinion on the subject of classification is applicable to the latter contention. It may be said further that nothing less than an arbitrary exercise of power can be stricken down under the Fourteenth Amendment. Judicial interference cannot be predicated solely on unjust and oppressive legislation, neither can invalidity stand on the mere fact that the act appears faulty. Metropolis Theatre Co. vs. City of Chicago 228 U.S. 61, 33 Sup. Ct. Rep. 441,57 L.Ed. 730.
In Toyota vs. Territory of Hawaii, 226 U.S. 184, 33 Sup. Ct. Rep. 47, 57 L.Ed. 180, the Supreme Court upheld a statute of Hawaii imposing a license tax of six hundred dollars on auctioneers in the district of Honolulu and a like tax of fifteen dollars on auctioneers in each other taxing district in the island. The act was assaulted on the ground that it deprived an auctioneer in Honolulu of his property without due process of law and denied him the equal protection of the law. The opinion in this case was written by the present Chief Justice before his retirement from that Court.
In Pacific American Fisheries vs. Territory of Alaska269 U.S. 269, 46 Sup. Ct. Rep. 110, 70 L.Ed. 270, an act of the Territory of Alaska was upheld which imposed a surtax on an upward graduated scale per case of certain types of canned fish. It was there contended that the act discriminated against large canneries in favor of small ones but the act was upheld on the theory that classification for taxes on the basis of the amount of the corpus taxed had frequently been approved.
In Hayes vs. Missouri 120 U.S. 68, 7 Sup. Ct. Rep. 350,30 L.Ed. 578, a statute of the State of Missouri was upheld which provided that in the trial of capital cases, in cities having a population of over 100,000 inhabitants, the state should be allowed fifteen peremptory challenges to
jurors, while elsewhere in the state it was allowed only eight peremptory challenges in such cases. It was contended that the act denied to one accused of murder in a city of more than 100,000 the equal protection of the law.
In Metropolis Theatre Co. vs. City of Chicago 228 U.S. 61,33 Sup. Ct. Rep. 441, 57 L.Ed. 730, an ordinance of the City of Chicago was upheld which imposed a license tax on places of amusement, graduated according to the price of admission for single seats. If the price of admission was one dollar, the license tax was one thousand dollars. If the price of admission exceeded fifty cents but was less than one dollar the license tax was four hundred dollars. The classification was sustained in the face of a showing that some theaters charging the higher admission received less revenue than those charging the lower admission.
The foregoing including the following cases on the question of classification might be enlarged ad infinitum. In addition to supporting the law of this case they demonstrate the utter impossibility of casting a taxing statute under our social structure that does not contain some inequalities and work hardships in individual cases. And while it has been repeatedly pronounced that there is no limit to the discretion of the Legislature in classifying trades, occupations, and businesses for purposes of taxation so long as the classification rests on reason and is not arbitrary or capricious, caution should be exercised in all instances to reduce hardships and inequalities to the irreducible minimum. Clark vs. City of Titusville184 U.S. 329, 22 Sup. Ct. Rep. 382, 46 L.Ed. 569; Central Lumber Co. vs. State of South Dakota 226 U.S. 157,33 Sup. Ct. Rep. 661, 57 L.Ed. 164; Quong Wing vs. Kirkendall 223 U.S. 59,32 Sup. Ct. Rep. 192, 56 L.Ed. 350; Southwestern Oil Co. vs. State of Texas 217 U.S. 114, 30 Sup. Ct. Rep. 496, 54 L.Ed. 688; Armour Co. v. Commonwealth of Virginia 246 U.S. 1,38 Sup. Ct. Rep. 267, 62 L.Ed. 547; Alaska Fish
Salting By-Products Co. vs. Smith 255 U.S. 44, 41 Sup. Ct. Rep. 219; 65 L.Ed. 489; Ohio Oil Co. vs. Conway 281 U.S. 146,50 Sup. Ct. Rep. 310, 74 L.Ed. 775; Great Atlantic and Pacific Tea Co. et al. vs. Maxwell, decided October 26, 1931, cited in Sup. Ct. Rep. November 15, 1931; Reyman Brewing Co. vs. Vrister, 179 U.S. 445, 21 Sup. Ct. Rep. 201, 45 L.Ed. 269; Peninsular Industrial Ins. Co. vs. State 61 Fla. 376,55 So. 398; Lindsley vs. Natural Carbonic Gas Co. 220 U.S. 61,31 Sup. Ct. Rep. 337, 55 L.Ed. 369; The Packer Corporation v. Utah, Supreme Court of U.S., decided February 23, 1932.
We think that in either event the classification complained of may be held to withstand the challenge directed against it. We see nothing in the factual situation to differentiate this aspect of the case from State Board of Tax Commissioners vs. Jackson, supra, neither do we see anything in the classification either as to stores under the same management in a single county or under the same management in different counties that would do violence to the rule of due process or equal protection as announced in the decisions of this Court. Owners of chain stores are classified on two bases and all in each class are treated alike. If located in different counties the necessary implication of larger volume, wider circulation, growing profits, business expansion and larger opportunity under group control must follow. These facts are ample to support that classification.
As a third phase to the main question Appellants contend that the ultimate purpose and effect of Chapter 15624 is to throttle competition, repress the diligent in business, and to impose a burden on superior skill, initiative, and industry, contrary to the American idea of inalienable rights as expressed in the Declaration of Independence and the Declaration of Rights.
Primarily this contention presents a question of economics
or policy rather than one of law. The policy and expediency of an excise tax is always a question for legislative determination. The objects on which it is imposed, the amount of the tax, and the standard employed to measure the tax are matters in which legislative discretion may take a wide range. The judiciary is not authorized to revise the judgment of the Legislature on these matters even though it impose a burden on superior skill, initiative, and industry unless that burden is shown to be unequal, grossly oppressive, or offends against every impulse of common right and justice.
We know of no reason nor do Appellants cite any for relieving superior skill, initiative, and industry from the payment of a tax. The sole justification for any form of taxation is to support the institutions of government. Our taxing laws, organic and statutory, were cast to meet the needs of an agricultural country when practically all our values were in land. If they cannot be construed and recast to meet the needs of this industrial era when the major portion of our values are represented by personal property then the burden of government is inequitably distributed and equal protection as contemplated by the Constitution is defeated.
It is next contended that the proviso to Section Eight of Chapter 15624 exempting filling stations engaged exclusively in the sale of gasoline and other petroleum products creates an arbitrary and unreasonable discrimination against all owners of retail stores contrary to due process and equal protection.
The proviso to Section Eight applies only to filling stations engaged exclusively in the sale of gasoline and other products of petroleum. Exclusive of other considerations there is ample ground for the exemption of filling stations from the provisions of the act. They are inherently different from ordinary retail stores and a heavy excise tax is collected from gasoline and other petroleum products sold
by them. (Chapter 15659 Acts of 1931, Laws of Florida.) If a retail store as contemplated by Chapter 15624 was operated in connection with the filling station, it would be subject to the tax imposed. Such a classification or distinction is far from being palpably arbitrary and the rule is that it must be upheld if there be any conceivable state of facts on which it can rest. Southern Grocery Stores Inc. vs. South Carolina Tax Commission, United States District Court, Eastern District of South Carolina, decided February 2, 1932, opinion by Judge John J. Parker is conclusive of this point. See also Rast vs. Van Deman Lewis Co. 240 U.S. 342, 36 Sup. Ct. Rep. 370,60 L.Ed. 679, L.R.A. 1917A 421; Ann. Cas. 1917B, 455; Wampler vs. Lecompte 282 U.S. 172, 51 Sup. Ct. Rep. 92, 75 L.Ed. 276; South Carolina Power Co. vs. South Carolina Tax Commission52 Fed. 2d 515.
Other alleged invalidities interposed by Appellants relate to the exemption of wholesale merchants, the penalty of twenty-five per cent. of the license tax imposed when renewals for licenses are not made on or before the tenth day of November of each year, the administration of the act and burden on interstate commerce.
We have examined each of these questions and find them to be without merit. The license year under the act runs from October first to October first of each year. No license lapses prior to October 31, all licensees who have not renewed are then notified by registered mail and are required to renew on or before November 10, or suffer the twenty-five per cent. added to the amount of their license fee as penalty for not complying promptly. Identical or similar provisions are carried in most State and Federal revenue acts and have been often upheld.
The decree of the chancellor is accordingly affirmed.
Affirmed.
BUFORD, C.J., AND WHITFIELD, AND DAVIS, J.J., concur.
ELLIS AND BROWN, J.J., dissent.