Lee v. Bond-Howell Lumber Co.

Whitfield, C. J. The facts of the case'are stated in the opinion of Mr. Justice Davis filed in connection herewith. Section 18, Article III, Constitution, provides that: “No law shall take effect until sixty days from the final adjournment of the session of the Legislature at which it may have been enacted unless otherwise specially provided i-n such law.” Chapter 16848, Laws of Florida, 1935, Senate Bill No. 724, provides: “Section 20. This Act shall become effective immediately upon its becoming a law.” The Act was approved by the Governor June 1st, 1935, and became a law upon such executive approval. Section *203 28, Article III, Constitution. Parker v. Evening News Pub. Co., 54 Fla. 482, 44 So. 718. The taxes levied by Subdivision A of Section 4 of the Act “shall be due arid payable on the first day of July of each and every year.” The taxes levied and imposed by Subdivision B of Section 4 of this Act “shall be paid monthly * * * on or before the fifteenth day of August, 1935, and on or before the fifteenth day of every calendar month thereafter.” There is nothing in the Act authorizing the courts to change the effective date of the statute that is “specially provided in such law” under the Constitution, or to change the dates on which statutory taxes “shall be due and payable” by the express terms of the law. When a statute pursuant to the Constitution specifically states the time when the “law shall take effect” or “shall become effective” the courts are without legal power or authority to change the time. Section 18 of Chapter 14868, Acts of 1935, provides that if any portion “of this Act” be “held or declared to be unconstitutional, inoperative or void, such holding for invalidity shall not affect the remaining portions of this Act; * * * and the remainder of the Act after the exclusion of such part or parts' shall be deeded and held to be valid as if such excluded parts had not been included herein.” Such provisions authorize the court to consider as excluded from the Act any part thereof held to be “unconsitutional, inoperative or void,” and it is enacted that the “remainder of this Act * * * shall be deemed and held to be valid.” There is no authority given to change any words used in the Act, or to substitute other provisions for those contained in the Act. The provisions of the Act imposing taxes are specific, affirmative and severable, not indefinite or misleading; *204 and distinct, severable portions of such tax provisions are held to be constitutional. As such valid provisions have not heretofore been adjudged invalid by this Court, such severable valid portions of the Act are constitutional from the date of enactment, and are enforceable as specifically provided in the statute. The Circuit Court in granting a temporary injunction held the entire Act to be unconstitutional, but that decree was subject to appeal and is here appealed. This litigation is not a criminal prosecution, nor is it for the collection of penalties. The question is not one of indefiniteness and construction, but of the constitutionality of the whole of the severable parts of the specific, plain and positive provisions of the Acts which impose the taxes. Smith v. Cahoon, 283, U. S. 553, 51 Sup. Ct. 582, 75, L. Ed. 1264, was a habeas corpus proceeding in a criminal prosecution, under a regulatory statute which was indefinite in defining the obligation it imposed upon the petitioner, Smith. In Pierce Oil Corp. v. Hopkins, 264 U. S. 137, 44 Sup. Ct. 251, 68 L. Ed. 593, questions of whether the Act was unconstitutional and whether its alleged uncertainty was removed by construction were treated as wholly different matters. In Wiseman v. Phillips (Ark.) 84 S. W. (2nd) 91, the following statute of that State was applicable: “Whenever, by the decision of any circuit court, a construction may be given to any penal or other statute, every act done in good faith in conformity with such construction after the making of such decision, and before the reversal thereof by the Supreme Court, shall be so far valid that the party doing such act shall not be liable to any penalty or forfeiture for any such act that shall have been adjudged lawful by such decision of the Circuit Court.” *205 There is no statute of that nature in this State. As required by the Constitution, Chapter 16848, Acts of 1935, expressly provides that the Act “shall become effective immediately upon becoming a law,” which was upon the approval of the Act by the Governor, June 1, 1935. The statute also expressly provides that the annual taxes imposed by Subdivision A of Section 4 of the Act shall be due and payable July 1st, “of each and every year” and that the gross receipts taxes imposed by Subdivision B of Section 4 of the Act “shall be paid monthly * * * on or before the fifteenth day of August, 1935, and on or before the fifteenth day of every calendar month thereafter.” Such express provisions of the statute as to when the taxes “shall be due and payable” are not adjudged to be unconstitutional. All of the taxes imposed by Subdivision A of Section 4, and the monthly gross receipts tax imposed by Class 1 “upon one store,” a several portion of Subdivision B of Section 4 of the Act, are held to be constitutional; and this court has no authority to suspend or postpone the operation of the valid portions of the statute from the dates in 1935, expressly fixed therein, until February 25, 1936. The foregoing views are concurred in by Mr. Justice 'Terrell and Mr. Justice Brown, who, with the writer, have reached the conclusion that the injunction granted below should be so modified or dissolved as to permit the terms of Chapter 16848, Acts 1935, as construed and upheld to be valid in part by this Court, to be enforced as' of July 1, 1935, in accordance with its terms. The views of Mr. Justice Ellis are stated in the separate opinion prepared and filed by him. The views of Mr. Justice Davis, which are •concurred in by Mr. Justice Buford, are set forth in the separate opinion prepared and filed by Mr. Justice Davis. *206 This court being evenly divided as to instructions or directions that should .be given to the Circuit Court with reference to the orders appealed from, Mr. Justice Davis concurs in the conclusion that the injunction granted June 18, 1935, against the enforcement of the Act should have been dissolved upon the motion of the State Comptroller, and that the cause should now be remanded to the Circuit Court with specific direction to the Chancellor to grant such dissolution. Order refusing to modify or vacate injunction reversed with directions to dissolve the injunction as prayed for. Order permitting filing of supplemental and amended bill of complaint affirmed, but without prejudice to assertion of appropriate motions or defenses to same. Terrell and Brown, J. J., concur. Buford, and Davis, J. J., concur in the conclusion stated. Ellis, P. J., dissents.