In discussing the power of the legislature to classify persons and things, it was said by this court, speaking through MR. CHIEF JUSTICE *Page 648 TAYLOR, in State vs. Jacksonville Terminal Co., 41 Fla. 363,27 So. 221, said that the equal protection clause of the Fourteenth Amendment to the Federal Constitution does not preclude legislation reasonably classifying persons and things, and that generally it only requires the same means and methods to be applied impartially to all the constituents of a class, so that the law shall operate equally and uniformly upon all persons in similar circumstances. And the test of the reasonableness of a classification is that it must be based upon some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection.' " Citing Mahoun v. Illinois Trust Savings Bank,170 U.S. 283, 18 S.C. R. 594, and Dell v. Marvin, 41 Fla. 221,26 So. 188. See also Stripling v. Thomas, 132 So. 824, S. A. L. Ry. Co. vs. Simon, 56 Fla. 545, 47 So. 1001.
This Court, speaking through MR. JUSTICE STRUM, in Sheip Co. vs. Amos, 130 So. 699, said:
"The province of the judiciary in considering an objection of the nature just stated, as applied to an excise, is limited. In the direct imposition of a state excise upon taxable privileges, the Legislature exercises a power of extensive scope. Organic requirements as to uniformity and valuation, applicable to ad valorem taxes, do not apply to excises, since the latter are not regarded as a "tax" within the meaning of constitutional limitations requiring uniformity of rates and just valuations. Jackson v. Neff, 64 Fla. 326, 60 So. 350; Heirs v. Mitchell, 95 Fla. 345, 116 So. 81. In the imposition of excises, the only organic limitations upon the state are that due process, equal protection, and contract rights shall not be burdened nor federal functions interfered with. Therefore there must be a reasonable basis of classification, and there must be geographic, as distinguished from intrinsic, uniformity. Amos v. Matthews (Fla.) 126 So. 308; Amos v. Gunn, 84 Fla. 285, 94 So. 615; Jackson v. Neff, supra; Peninsular Casualty Co. vs. State, 68 Fla. 411, 67 So. 165; Panhandle Oil Co. v. Mississippi, 277 U.S. 218, 48 S.Ct. 451, 72 L. ed. 857, *Page 649 56 A. L. R. 583. See also, Newell v. Green, 159 N.C. 462, 86 S.E. 291. Unless the classification, or the amount of the tax, is purely arbitrary and unreasonable under every conceivable condition in practical affairs, the courts will not interfere.
"It is held in the federal courts that the mere fact that an excise tax, imposed for revenue purposes, operates to practically suppress the business taxed, does not render an act of Congress unconstitutional, and that it is not a part of the function of a court to inquire into the reasonableness of the excise, either as respects the amount, or the property upon which it is imposed."
"The rule in this state, however, is somewhat more stringent. This court fully recognizes the doctrine, long established, that the judicial department cannot prescribe to the legislative department limitations upon the exercise of its existing powers. That doctrine however, is consistent with the further doctrine heretofore adopted by this court that, although there is no express limitation upon the power of the Legislature to provide for a tax on licenses, nevertheless the organic requirements of due process and equal protection must be observed in imposing such a tax. See Roach v. Ephren, 82 Fla. 523, 90 So. 609.
"The rule in this jurisdiction was thus stated in State ex rel. Bonsteel v. Allen, 83 Fla. 214, 91 So. 104, 105, 26 A. L. R. 735:
" 'While it is within the power of the courts to declare laws levying license taxes void because of the unreasonable and arbitrary exercise of the state's power either in the classification or in fixing the amount of the license, such power will not be exercised unless the amount of the license tax is so great, or the classification so palpably arbitrary as to be beyond the necessities for the legislation, or equivalent to an impairment of the constitutional rights or property, or tend to prevent a great number, if not all persons, from pursuing otherwise lawful occupations which do not impair public safety, public health, or destroy property.' "
The application of this clause of the Fourteenth Amendment to state taxation statutes is thus stated in the majority *Page 650 opinion by MR. JUSTICE ROBERTS, in the recent case of State Board of Tax Commissioners v. Jackson, 283 U.S. 527,75 L. ed. 1464, 51 S.C. 540:
"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 law 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. v. Pennsylvania, 134 U.S. 232, 33 L. ed. 892, 10 S.Ct. 533; Southwestern Oil Co. v. 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 v. 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 v. Kirkenhall, 223 U.S. 59, 56 L. ed. 350, 32 S.Ct. 192. As was said in Brown-Forman Co. v. Kentucky, supra,:
'A very wide discretion must be conceded to the legislative power of the state in the classification of trades, callings, businesses or occupations which may be subjected to special forms of regulation or taxation through an excise or license tax. If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of the equal protection of the law.'
It is not the function of this court in cases like the present to consider the propriety or justness of the tax, to seek for the motives or to criticize the public policy which prompted the adoption of the legislation. Our duty is to sustain the classification adopted by the legislature if there are substantial differences between the occupations separately classified. Such differences need *Page 651 not be great. The past decisions of the court make this abundantly clear."
In the opinion of the four dissenting Justices, as pertains to the general principle involved, it was said:
It is settled that the power of the State to classify for purposes of taxation is of wide range and flexibility; but that, while the difference upon which the classification is based need not be great, mere difference is not enough. Classification, to be legitimate, must rest upon some ground of difference having a reasonable and just relation to the object of the legislation. All persons similarly circumstanced must be treated alike. Louisville Gas E. Co. vs. Coleman,277 U.S. 32, 37; 72 Law ed. 770, 48 S.Ct. 423, and cases cited."
In the majority opinion, MR. JUSTICE ROBERTS said that the appellants had produced evidence to prove that there are many points of difference between chain stores and independently operated units, which justified the classification made by the Indiana Act, naming them. That these differences exist in Florida at least in so far as appellant's businesses are concerned, is denied by the bill in this case. Indeed, the existence of these differences in Indiana was doubted by the minority members of the Court. In commenting on this feature of the majority opinion, the dissenting opinion says:
*Page 654"In the state of Indiana there are approximately 44,000 retail stores engaged in the same general lines of business, only eight per cent. of which are so-called 'chain stores.' Among them are single stores each of greater value than all the stores of appellee combined, and each doing a business in excess of all that done by appellee. For example, there are two large department stores in the city of Indianapolis, each doing a business of more than $8,000,000. per annum, one operating 124 separate departments and the other 86 separate departments, but each pays a license fee under the statute of only $3.00 per annum; while appellee, owning 225 separate stores and doing a total business of approximately *Page 652 $1,000,000. per annum, pays license fees of $5,443. per annum — eighteen hundred times as much! Each of several owners of a large number of stores, (145 in one instance) who happens to have only one store in Indiana, pay a license fee of $3., contrasted with the payment of $25. for each store over twenty owned by appellee. Appellee, upon 205 of his stores, pays the aggregate sum of $5,125.; while the proprietors of 205 stores, held and operated separately, pay in the aggregate only $615., although they or some of them may be of equal of greater value, equally well or better located, doing as much or more business, and producing as much or more income. The evidence further shows that a "co-operative volunteer chain" consisting of several hundred stores in Indiana paying an annual license fee of only $3. each, operates under an association called the Independent Grocer's Alliance. The association carries on co-operative buying and advertising for the benefit of the members of the group; and it seems clear that as to most, if not all, of the advantages said to be enjoyed by the chain stores the volunteer co-operative group occupies a position of equality.
"These are obvious and flagrant discriminations which put upon the act the clear stamp of unconstitutionality, unless the differences relied upon are gemane to, and reasonably sufficient in substance to sustain, the proposed imposition of license fees of such unequal amounts upon different persons following identical occupations.
"What, then, are the differences, or so-called advantages, relied upon to justify the classification? They were, in their strongest aspect, stated by an expert witness called by the appellants in support of the act, as follows: The ability of the chain stores to make large quantity purchases; to pay cash and thus obtain the advantage of discounts; skill in buying so as to avoid either overstocking or understocking; warehousing in, and distribution from, a single warehouse for numerous stores; large capital with the advantages flowing therefrom; certain pricing and sales policies resulting in slightly lower prices on the part of the chain stores as compared with single stores; more rapid turn-over of goods; cheaper and better advertising; superior management; *Page 653 standardization in the matter of display; standardization of store management; and similar elements thought to have a beneficial effect upon the disposition of goods.
"But the effect of this enumeration of supposed advantages is completely swept away by the testimony of the same witness on cross-examination, which stands upon the record without dispute, that they are not confined to the chain stores, but are enjoyed as well by such of the favored taxpayers as are engaged in large business, whether in a single establishment or in many establishments.
"Every advantage that I have spoken of as relating to the chain group is that which inheres, primarily, in volume and management without respect to whether it is involved in a chain group or in a single store. Good management makes for volume and volume makes for the possibility of making or acquiring more capital, and more capital makes for the possibility of employing the highest grade of experts, so that there is constant intercommunication of revolving. I would find the same advantage adhering in a large department store over a small one. Every quality that I have enumerated as going to the manner of organization relates itself, primarily, to there being a sufficient capital structure and volume of business to permit it to be carried on, and I would add management in that it is an essential part of it.
* * * * * * * * * * *
'Q. So that it does not relate itself to the form of organization — whether they are administering fifty of a hundred stores, or administering one store?
A. No, no.
Q. The fact that it is administering multipley owned stores has nothing to do with it, but it is the fact that it is administering a large business that develops the situation that you have referred to?
A. That is true. But I might add that the management of a large number of stores may contribute to the more rapid increases in the size.
Q. Just as the manager of a large unit store, with many departments, may develop the ability to strengthen and enlarge those departments?
A. Yes.
Q. And the problem would be identical, wouldn't it, in the case of Macy or Gimbel — or, taking it locally in connection with Ayres, or Block?
A. Yes, I would say the problem would be the same. There is no difference in the functions that are performed here — the function of retailing.'
"It thus appears that the advantages attributed to the chain store lie not in the fact that it is one of a number of stores under the same management, supervision or ownership, but in the fact that it is one of the parts of a large business. In other words, the advantages relied upon arise from the aggregate size of the entire business, and not from the number of parts into which it is divided. For the want of a valid ground upon which to stand, therefore, the classification should fall, because it is made to depend not upon size or value or character, amount of capital invested or income received, but upon the mere circumstance — wholly irrelevant so far as any of the advantages claimed are concerned — that the business of one is carried on under many roofs, and that of the other under one only. Reduced to this single detail of difference, what fairly conceivable reason is there in the policies or objects of taxation which gives countenance to the requirement that the former shall make an annual contribution to the revenues of the state eighteen hundred times as much as the latter? A classification comparable in principle would be to make the amount of an income tax depend upon the number of sources from which the income is derived, without regard to the character of the sources or the amount of the income itself.
"Since the supposed differences thus are reduced to the one of number only, and, since that turns out to be irrelevant and wholly without substance, it follows that the act is a "clear and hostile discrimination." against a selected body of taxpayers, Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237, 33 L. ed. 892, 895, 10 S.Ct. 533 — a mere subterfuge by which the members of one group of tax payers are unequally burdened for the benefit of the members of other groups similarly circumstanced. All of which is to say that the legislature *Page 655 has misapplied its powers to classify with the result of reaching an end forbidden by the 14th Amendment.
"To this situation the language of Mr. JUSTICE FIELD in Santa Clara County v. Southern P. R. Co. (C. C.) 9 Sawy. 165, 18 Fed. 385, 399, seems peculiarly applicable.
'Unequal taxation, so far as it can be prevented, is, therefore, with other unequal burdens, prohibited by the Amendment. There undoubtedly are, and always will be, more or less inequalities in the operation of all general legislation arising from the different conditions of persons from their means, business, or position in life, against which no foresight can guard. But this is a very different thing, both in purpose and effect, from a carefully devised scheme to produce such inequality; or a scheme, if not so devised, necessarily producing that result. Absolute equality may not be attainable, but gross and designed departures from it will necessarily bring the legislation authorizing it within the prohibition. The Amendment is aimed against the perpetration of injustice, and the exercise of arbitrary power to that end. The position that unequal taxation is not within the scope of its prohibitory clause would give to it a singular meaning. It is a matter of history that unequal and discriminating taxation, leveled against special classes, has been the fruitful means of oppressions, and the cause of more commotions and disturbance in society, of insurrections and revolution, than any other cause in the world.'
"It seems plain enough that we have in the present case 'a carefully devised scheme to produce such inequality; or a scheme, if not so devised, necessarily producing that result.' "
There are certain distinctions between the act here under review and the Indiana act, considered in the above cited case. The Indiana act appears to have applied to all stores, whether wholesale or retail, while the Florida act applies only to retail stores, the stocks carried therein, and held in storage to be sold in or through such stores. There is a difference also in the amount of license fees. Under *Page 656 the Indiana act, the license fees run from $3.00 for a single store to a maximum of $25.00 for each store in excess of twenty stores when owned and operated under a single ownership whereas under the act here in question the fees run from $5.00 to $50.00. But the most marked difference between the two acts is that the Florida act provides a considerably higher license fee for the same number of stores (in excess of one store) under a single ownership where any of such stores are located in more than one county.
The North Carolina act, which was also upheld by the Federal Supreme Court by a memorandum decision, on October 26, 1931 (Great Atlantic Pacific Tea Co. vs. Maxwell) did not embrace an ascending graduated scale of fees, but merely provided for a license tax of $50.00 on each store in excess of one store where such two or more stores were under the same management, supervision or ownership.
The motion to dismiss the amended bill in this case, like a demurrer, admits all facts well pleaded in the amended bill. Taking these facts as true, as we must in reviewing the action of the lower court on the motion to dismiss, my conclusion is that the court below erred in granting such motion and in denying the temporary restraining order. For under the principles heretofore enunciated by this court, and by the Supreme Court of the United States, including the recent case of State Board of Tax Commissioners v. Jackson, supra, said Chapter 15624 would be unconstitutional as applied to these appellants, if the facts alleged in the amended bill are true, on the ground that as applied to appellants the act constitutes an arbitrary and unreasonable classification for taxation purposes, contrary to the due process and equal protection clauses of the Federal Constitution and similar provisions in the preamble and sections 1, 4 and 12 of the Declaration of Rights *Page 657 in our State Constitution. It is my opinion that the facts alleged in the amended bill are sufficient to require the defendants to answer, and that the motion to dismiss was erroneously granted.
It would also appear that those provisions of the act which require increased or higher license fees on multiple stores under the same general management, supervision or ownership, where the same are located in more than one county, are so arbitrary and unreasonable on their face as to render them unconstitutional and to require that they be regarded as eliminated from the act. We cannot see where they have any just or reasonable relation to the object of the act. Under these provisions for instance, a man owning the same number of stores as another man would have to pay a much higher tax per store if he had one of them in an adjoining county, regardless of value or volume of business. This is also contrary to that geographical uniformity which is referred to in Sheip Co. vs. Amos, supra. We cannot see wherein county lines are material in a State license statute of this nature. Any given number of stores located in a populous county might do a much larger business than the same number scattered throughout a number of small counties, sparsely populated. Under this act the owner of the 37 Whiddon Stores in Duval County, referred to in the bill, would have to pay total license fees amounting to $510.00, or $13.78 per store. If he decided to locate one store at Fernandina, the addition of this one store would make him liable under the act to license fees on 38 stores totaling $755.00, or $19.60 per store. Thus by establishing one store across the county line his license taxes would be increased $245.00, or nearly 50%. His 37 stores in Jacksonville would remain exactly as before, yet the tax on them would be increased nearly 50% merely because one store was opened in an adjoining county. Such artificial and law-made disparagement of the rights of one citizen and tax payer in favor of another certainly does not *Page 658 comport with our constitutional guarantees of "equal civil rights" and "equal protection of the laws." Such an arbitrary classification in a state license tax based on mere county lines, is "classification gone wild."
"The citizen's right to pursue any lawful business is property that cannot be taken from him without due process of law, and is one of the privileges of a citizen of the United States of which he cannot be deprived without invading his liberty. The legislature may not, under the guise of protecting public interests, arbitrarily interfere with private business nor impose unusual and unnecessary restrictions on lawful occupations." This was the holding in State v. Rose, 97 Fla. 710, 122 So. 225. In the opinion by Mr. JUSTICE ELLIS in the Rose case, the case of Marymont v. Nevada Banking Board, 111 P. 292, 32 L.R.A. (N.S.) 477, was cited, in which case the court said that "The right to do a grocery or dry goods business is available to all citizens and no grant from the sovereign is essential to its existence." Some others of our Florida cases dealing with the subject of the equal protection of the laws, or as our Declaration of Rights expresses it, "all men are equal before the law," are: State v. Bryan, 87 Fla., 57,99 So. 327; Stewart v. Stearns Culver Lumber Co., 56 Fla. 570,48 So., 19, 24 L.R.A. (N.S.) 649; Harper v. Galloway,58 Fla. 255, 51 So. 236, 26 L.R.A. (N.S.) 794, 19 Anno. Cases 235; S. A. L. R. Co. v. Simon, 56 Fla. 545, 557, 47 So. 1005; Ex parte Messer, 87 Fla. 92, 99 So. 330; Ex parte Smith,128 So. 864; Teuton v. Thomas, 129 So. 330; Motes v. Hagan,132 So. 676, L. N. R. Co. vs. Amos, 98 Fla. 350, 123 So. 745; State ex rel. Davis v. City of Stuart, 97 Fla. 69, 120 So. 335.
There is very little, if any, conflict, in the statement of the general principles which must be observed in order for legislative classifications to square with the constitution, between the majority and minority opinions of the Federal Supreme Court in the Jackson case, above quoted *Page 659 from. The minority opinion in effect supplements the statement of the doctrine enunciated in the majority opinion by adding thereto a qualification which has long been recognized by this court, as a reading of the cases cited in the preceding paragraph will show, i.e., that such classification should not be merely arbitrary, but the differences on which it is based must have some just and reasonable relation to the subject or object of the legislation and the attempted classification. See the text of the able opinion of Mr. JUSTICE WHITFIELD in the Simon case, supra., 56 Fla. 554, to 557, 47 So., 1002 to 1005. So, in order to get a complete view of the law on this subject, both the majority and minority opinion in the Jackson case must be considered. The chief difference between the two opinions lies in the analysis of the facts and the application of the law to the facts. The writer is further inclined to the view that under our former decisions, as applied to the state of facts alleged in the bill, the act here in question creates such an arbitrary classification as to render it unconstitutional and void.
I am, however, inclined to concur in the conclusion reached by the learned Circuit Judge that the statute here under review was lawfully enacted, in so far as the same was attacked by the bill on the ground that the subject dealt with by it was not within the Governor's call. It is not contended that the act, as finally adopted, was not adopted by a "two-thirds vote of each house," as required by section 8 of Art. IV of the Constitution. The contention is that certain amendments and the motion of concurrence in the House were not adopted by a two-thirds vote.
My view is that the order of the court below dismissing the amended bill and denying the application for temporary injunction should be reversed, and the cause remanded for further appropriate proceedings.
*Page 660ELLIS, J., concurs.