The opinion hereinabove quoted from was written by Judge Frank A. Smith, Senior Circuit Judge of the Ninth Judicial Circuit. Circuit Judge M.B. Smith, of the same circuit, who also participated in the decision of the Court below in this case, rendered a special concurring opinion which reached the same conclusion by a somewhat different route. As it is the duty of the Court to so construe an Act as to avoid any grave doubts as to its constitutionality, where this can reasonably be done without violating the legislative intent, I think part at least of the opinion of Judge M.B. Smith which I consider well founded, should be here set forth. As shown by the record, he said: *Page 796
"I concur in the conclusion reached by Judge Frank A. Smith in the foregoing opinion and answer the question presented also in the affirmative, but am not particularly concerned with the question of the constitutionality of Chapter 18296 of 1937, for in my opinion both Acts can stand and operate together, viz.: Chapter 15798, Acts of 1931, and Chapter 18296, Acts of 1937, without contravening the intent of the lawmaking power and without necessarily holding the later Act unconstitutional to protect the constitutional rights of Plaintiff.
"The statutes involved are to be construed under the well recognized principles announced in the following cases:
"`The legal presumption is that the Legislature did not intend to keep contradictory enactments in the statute book or to repeal a law without expressing an intent so to do, and where the Courts can, in construing two provisions, preserve the force of both without destroying their evident intent, it is their duty so to do. State v. Givens, 37 So.2d 308, 48 Fla. 165. And to the same effect: Sparkman v. State, 71 So.2d 34, 71 Fla. 210. Stewart v. DeLand, etc. 71 So.2d 42, 71 Fla. 158.
"Also: `Laws should be construed with reference to the Constitution and the purpose designed to be accomplished, and in connection with other laws in pari materia." State v. Johnson, 72 So.2d 477, 71 Fla. 363.
"`The rule that statutes are not to be construed retrospectively, unless such construction was plainly intended by the Legislature, applies with peculiar force to those statutes the retrospective operation of which would impair or destroy vested rights.' In re Seven Barrels of Wine, 78 Fla. 1, 83 So. 627.
"Now a careful reading of Chapter 18296, Acts of 1937, will show that there is nothing therein which can be interpreted *Page 797 to take away or diminish the fees of tax collectors for services already rendered.
"To determine that the Legislature intended to diminish the fees of tax collectors for services already rendered we would have to decide that to that extent they intended to repeal Chapter 15798, Acts of 1931, which would be a repeal by implication, the result of which would impair or destroy vested rights.
"The proper presumption is that the Legislature had Chapter 15798, Acts of 1931, in mind at the time of the enactment of Chapter 18296, Acts of 1937, and provided for the collection of the Tax Collector's earned commissions, in the passage of the latter Act.
"Some of my reasons for this are as follows:
"The only places where the word `costs' appears are the following sections: Section 3. `Upon the payment of the bid as aforesaid, and after deductions of any costs or expenses of suchsale, the said Clerk shall distribute the money so derived from said sale between the State and the County in proportion to the amount of taxes levied by each.'
"Surely if they had not intended for the word `costs' to include the tax collector's commission they would have provided for the payment of the same to him before they would have the Clerk distribute the money `from said sale' between the State and the County. His commission is a part of the face of the certificate and it would be going mighty far to impute a legislative intent to take `his money' and not pay him and then distribute his commission between the State and County and leave him without his commission. If that was the intention, which I do not think, the word `costs' only meant `Clerk's costs' of such sale. I think it meant all costs heretofore incurred in obtaining the thing (certificate) being sold and one of these items is the costs due the Tax Collector. *Page 798
"Section 4. `Clerk of Circuit Court to whom any such application is made is hereby authorized to require of such applicant a deposit of sufficient amount to cover all advertisingand other costs incident to making of such sale, which deposit shall be credited upon bid made by such applicant.'
"Now we find the expression `other costs incident to making such sale' used in this section. That word `incident' was used for some purpose; if not to cover the tax collector's costs, I see no reason for its use. The phrase `other costs' of `making sale' was sufficient to cover the Clerk's costs if that was the only costs they intended to have paid. The word `incident' is defined by the Twentieth Century Dictionary as `appertaining to or following the chief or principle; as a payment incident as a fee of office' also `in connection with the main design.'"
The opinion then goes on to call attention to similar language in Section 10 of the Act. From these three quotations from the Act, which appear to be the only portions thereof dealing with the question of the costs incident to sales made thereunder, the opinion goes on to conclude that the Legislature never intended by the use of such language to confine the costs to clerk's costs only, but must have intended to include also the tax collector's commission, which was shown on the face of the certificate.
Thus construing Chapter 15798, Acts of 1931, and Chapter 18298 of 1937 together, Judge Smith concludes that the phrases "any costs or expenses" and "other costs incident to" should be construed to include not only the clerk's costs but also the tax collector's costs, that is, the already earned 5 per cent. commission, set forth on the face of the certificate, thus reaching the same conclusion as that reached by Judge Frank A. Smith.
*Page 799WHITFIELD, J., concurs.