I cannot agree with the construction placed on the language of the statute (Sec. 23 of c. 20956, Acts of 1941) in the opinion prepared by Mr. Justice WHITFIELD.
In the case of Levy v. Collins, 143 Fla. 619, 197 So. 522, we had under consideration Sec. 23 of c. 18011, Acts of 1937, and, on consideration of petition for rehearing, said:
"It is the contention of the appellant that the section of the statute, supra, which reads: 'Section 23. Every person who operates for a profit any place where dancing is engaged in or entertainment such as variety programs or exhibitions, is provided, shall pay a license tax of $100.00. The license required by this section shall be in addition to any other license required by law and the operation of such a place as herein described shall not be construed to be incidental to some other business; provided that a license may be issued for one night only, upon the payment of twenty-five dollars, but in such cases the Tax Collector must write across the license the words 'Good for one night only.' Provided, further, that this section shall not apply to entertainments given *Page 379 for charitable purposes, the proceeds of which are given to local charities; provided further that this section shall not apply to any place operated as a theatre or moving picture show only; provided, further, that this section shall not apply to hotels paying an occupational tax as provided for in section 21, should be construed to apply only to those places of business where a direct profit is realized from or a charge made for, the privilege of dancing or for enjoying entertainment of variety programs or exhibitions. We cannot agree to this construction.
"The records in the office of the Secretary of State show that in 1939 the Legislature attempted to amend the law in this regard by the passage of House Bill No. 1906 by which the language would have been changed to read:
"'Section 23. Every person who operates for a profit any place where dancing is permitted or entertainment such as variety programs or exhibitions is provided for a charge shall pay a license tax of $100.00 . . . .' (Emphasis supplied.) This enactment was vetoed by the Governor because the change in the law would reduce the revenue accruing to the State under the then existing statute."
As I read the statute, it was the legislative intent to require the $100.00 license only where dancing is permittedfor a charge or where entertainment, such as variety programs or exhibitions, is provided for a charge.
If the legislature did not intend the amendment to dispense with the requirement of the tax except in cases where a specific charge was made for the permitting of dancing or for the entertainment specified, *Page 380 the passage of the Act was a vain and useless gesture and accomplished nothing.
There is some significance to be found in the fact that there is a difference in the language used in the two statutes,supra. The 1937 Act uses the language, "Where dancing is engaged in" and if the legislature did not intend to make the change as contended by petitioner, that language would have been clear and all sufficient, but if it was the legislative intent to limit the application of the statute only to those places where a specific charge is made for dancing, then the language, "where dancing is engaged in" for a charge would have made the construction ambiguous, as it would have been uncertain whether the statute would have applied to places where the proprietor made a charge for the privilege of dancing, or where the dancers made a charge for entertaining by dancing. Therefore, the legislature eliminated ambiguity and made the intent clear by substituting the language, "where dancing is permitted," and, as I construe the statute added the words "for a charge."
Perhaps if the statute read "for profit" instead of "for a charge" it could be successfully contended that the increase in profit which the proprietor might acquire by allowing free dancing would be an element of profit chargeable to dancing and that, therefore, a part of the profit derived from the operation of the coin operated jook organ, or from the service of meals and drinks, as well as that from private dining rooms desired by spooning couples, or others; is derived from permitting dancing however, the legislature did not use the words "for profit" but specifically provided that the tax could only be required where dancing is permitted for a charge. *Page 381
A cardinal, elementary and universally recognized principle applicable to the construction of taxing statutes is that every doubt must be resolved in favor of the tax-payer.
It appears to me that the conclusion must necessarily be that unless a specific charge is made by the proprietor for the privilege of dancing, the license of $100.00 is not required.