
    FLORIDA GREENHEART CORPORATION, Appellant, v. John A. GAUTIER, Tax Assessor, et al., Appellee.
    No. 33101.
    Supreme Court of Florida.
    March 3, 1965.
    Rehearing Denied April 5, 1965.
    
      Brigham & Brigham, Miami, for appellant.
    Thomas C. Britton, County Atty., and St. Julien P. Rosemond, Asst. County Atty., for appellee.
   DREW, Chief Justice.

This direct appeal from a final decree of the Circuit Court of Dade County comes to us under Article V of the Florida Constitution, F.S.A. vesting jurisdiction here to review on appeal any decision of a trial court “construing a controlling provision of the * * * federal constitution.”

Florida Greenheart Corporation, a Florida corporation, appellant, is a Miami importer of pilings and sawn timber called Demerara Greenheart from British Guiana. In its complaint against the Tax Assessor and other tax officials of Dade County and the State of Florida, appellees, it sought to enjoin the imposition of tangible personal property taxes upon such greenheart, contending the assessment and imposition of such taxes was a tax upon import in violation of Article I, Section 10, Clause 2, of the Federal Constitution. It alleged that the individual pieces of greenheart were shipped by boat to appellant’s storage yard in Dade County where they were unloaded, stacked according to existing orders or according to descriptions, and stored until sold without being altered in form, substance or character and without being mixed with any other property of any kind except other pieces of greenheart previously imported, stacked and stored as above stated, and that each of said pieces of green-heart is an import constituting an original package.

Appellees answered, denying the allegations of the complaint that the greenheart shipments of individual pieces were each imports immune from county tangible personal property taxation. Evidence was taken in the form of affidavits, exhibits and depositions upon the issues made by the pleadings.

The chancellor entered his final decree finding the equities with the taxing authorities and that the importer plaintiff did not demonstrate immunity of said piling and sawn timber from taxation pursuant to Article I, Section 10, Clause 2, of the Constitution of the United States.

To summarize, the chancellor found that at least some of the greenheart was “ ‘put to the use for which it was imported,’ ” and “ ‘mixed with the mass of local property’ ” “ ‘by having been offered for sale among the community at large;’ ” “that there was a ‘breaking of bulk’ ” “in at least some of the shipments of ‘Greenheart,’ ” that some of it was stacked in piles according to length, no effort having been made to keep it separated as a unit of transportation or as to anticipated particular sales and it was offered for sale to the public; that the portion of the greenheart so stacked was commingled as to shipment and offered for sale to the public.

The chancellor conceded that any shipment of greenheart which may have been kept apart from other greenheart and maintained on plaintiff’s property in the hope it might be sold to some particular purchaser may have retained its status as an import until sold; that under such circumstances it would not have been put to the use for which it was intended and there would have been no mixing with the mass of local property, and no offer of it for sale among the community at large nor breaking of bulk. But the chancellor said he was unable under the facts presented to separate the two categories discussed; that from the evidence 60 to 70 per cent of the greenheart brought to Dade County was in hopeful anticipation of some particular future need, but the chancellor could not glean from the evidence when and to what extent such greenheart materials were commingled with other shipments offered for sale among the general public.

The chancellor then stated the facts above summarized correspond closely with the factual situation in E. J. Stanton & Sons v. Los Angeles County, 78 Cal.App.2d 181, 177 P.2d 804, certiorari denied 332 U.S. 766, 68 S.Ct. 75, 92 L.Ed. 352. The chancellor said the E. J. Stanton & Sons case held in effect that the unit of transportation or importation was the original package, that such unit was broken and offered for sale to the general public and that it therefore passed the point where the prohibition to tax ceased. The chancellor also said he found no case which holds that each piece of lumber is the “original package”; and that the Stanton case represents the law applicable to a situation where packaging is inherently impracticable.

The decree of the trial court holds that the property is taxable apparently on the theory that the sale of any portion of a shipment, after being placed in stacks of uniform length upon unloading, constituted an alteration of the “original form or container” in which the property was imported, although such lumber was purchased by the importer, invoiced, and classified by customs service by board-foot measurement, and sold by appellant by the same unit without physical alteration of the pieces, each bearing individual identification stamped at the foreign point of origin of the shipment. That part of the shipment remaining in appellant’s hands and held solely for sale was found to have been “put to the use” for which it was imported.

It is impossible to reconcile this holding with our decision in Overstreet v. Frederick B. Cooper Co., Fla.1961, 134 So.2d 225, which dealt with certain imported canned meats from Europe. In that case the meat was imported in original cases and was stored in a warehouse where it was sold by the importer from time to time in the original unbroken cases. We held that the meats were not subject to local personal property taxes, holding: “Thus it appears that so long as personal property imported from a foreign country remains the property of the importer, in the original form or container in which imported, it retains its character as an import and is exempt from taxation by state or local authorities. * * * And the offering of the goods for sale by the importer does not subject them to taxation by the state.”

The chancellor in this case seems to attach great significance to the fact that after these logs and the heavy sawn timber were placed in the importer’s warehouse or on his yard and thereafter sold, they ceased to enjoy the exemption. In this respect the chancellor said: “That portion of the greenheart so stacked and commingled as to shipment and offered for sale to the public had clearly passed that point where prohibition to tax ceases and the power of the state to tax commences. That merchandise had been put to the use for which it was imported.” (Emphasis supplied.) It seems clear that what the chancellor is saying is that, when the importer offered the lumber for sale, it became subject to local taxation because of the fallacious reasoning that such was the purpose for which it was imported. This is not what the Constitution provides and the cases hold. On the contrary, in most instances the very purpose of importing is for resale. It is after the sale — where it is sold in the original form or package— that it becomes taxable by local authority.

Moreover, another fallacious assumption is the significance given by the chancellor to the words “original package.” Where this expression has been used in the cases, it has been used in juxtaposition with the words “original form.” This was the language used more than 100 years ago in the early case of Brown v. State of Maryland by Justice Marshall, 12 Wheat. 419, 25 U.S. 419, 6 L.Ed. 678. The cases since have held that the exemption attaches to the sale in the original form or the original package. Obviously in imports of articles of great size such as this greenheart timber, or perhaps immense mahogany logs or large pieces of machinery, to confine the exemption to the original package idea would be to deny the exemption to articles of personal property solely because of its form or size.

In this case the original package idea is carried to the point of holding that the ship or cargo itself constitutes in some manner the original package, although the record reflects that appellant’s shipments were invariably brought by boats bearing numerous consignments for other ports. The chancellor relied upon E. J. Stanton & Sons v. Los Angeles County, supra, which held that lumber of different shipments, although stacked separately in the importer’s storage yard, was taxable as soon as one piece of it was sold; i. e., when the original package (the shipload) was broken. We cannot agree with this conclusion, even if it were the result reached by the California court, for three reasons: first, it ignores the original form concept; second, it is directly contrary to our holding in Overstreet v. Frederick B. Cooper, supra; and, third, it goes counter to cases such as those which hold cotton in bales, kegs of nails, barrels of chains, rolls of cloth, disks in crates, wine in packages and similar items enjoy the exemption.

If the evidence in this case showed that a few logs of greenheart were imported by a dealer in domestic and other piling 'and promiscuously mixed with such other piling and sold to the public when so commingled, we think then it would fall within the rationale of those cases which hold that when the original package is broken or the articles commingled with the general property of the state it loses its status of exemption under the applicable constitutional provision.

There are numerous cases holding that minerals imported in bulk, phosphate imported in bags, oil imported in bulk do not lose their status as being exempt merely by virtue of their form. We cannot see, and the record does not disclose, how it would be possible physically to make packages out of this personal property. We hold that under all of the cases with the possible exception of the Stanton case, which is directly contrary to our holding in the Overstreet case, this property under the facts disclosed by this record enjoys immunity from taxation under the Constitution.

Reversed and remanded for the entry of a decree in accordance with the views herein expressed.

THORNAL, O’CONNELL, CALDWELL and HOBSON (Retired), JJ., concur.

ERVIN, J., dissents with opinion.

ROBERTS, J., dissents and agrees with ERVIN, J.

ERVIN, Justice

(dissenting) :

My study of the authorities leads me to the conclusion that we should affirm the decision of the chancellor. Furthermore, from a consideration of the evidence I agree with the chancellor and the appellees that many of the greenheart timbers on appellant’s storage yard were offered for sale and sold piecemeal to the general pub-lie. In reaching the conclusion we should affirm, I believe the rule announced in E. J. Stanton & Sons v. Los Angeles County, 78 Cal.App.2d 181, 177 P.2d 804, certiorari denied 332 U.S. 766, 68 S.Ct. 75, 92 L.Ed. 352, is correct that a shipment or cargo of timbers received by an importer constitutes the unit of importation in the sense of the original package and when the timbers are offered for sale and sold piecemeal or as separate items to the general public the package is broken and the immunity from local taxation no longer obtains. In so doing, the contention is rejected that each piling or piece of sawn timber of the green-heart constitutes an original package because of its unique or inherent nature, rendering it incapable of being packaged for shipment with other like pilings or timbers of greenheart.

E. J. Stanton & Sons v. Los Angeles County, supra, reads in part:

“ * * * A cargo of planks, timbers or logs imported from foreign lands is surrounded by the invisible gossamer woven of law, custom and convention which protects the merchandise from the local tax assessor only so long as it retains the unbroken wrapper in which it entered the port. But when such cargo sheds its invisible cover, even though in the warehouse of the importer, and is so sorted and classified as to facilitate its sale, and portions thereof are sold until the pile is depleted and the remnants thereof are commingled with new shipments of the same type of timbers, also to be offered for sale, then a reasonable construction of section 10 and the decisions which have interpreted its meaning compel the termination of immunity from local taxation of such broken lots and commingled remnants of imported lumber.
“The circumstances attending the shipments in question are additional reasons for concluding that the several boards or timbers were not original packages. (1) Lumber is universally bought and sold by board feet; (2) the United States Customs’ method of classification of lumber is by board feet; (3) the price paid by respondent for its shipments is determined by board feet except in the purchase of lignum vitae logs; (4) the consular certificates of origin describe the shipments by board feet, grade and variety; (5) the absence of an address from, each board and the manner of transporting the lumber as an aggregation of goods, — these facts establish the folly of calling each plank an original' package, and of designating the segregated and classified lumber in the bins to be in the 'original form’ in which it was shipped.” 177 P.2d 804, 807, 808.

If this were not the rule, discrimination-in the impact of local taxes disadvantageous-to fair competition in the building supply business in our communities would result. In this respect, attention is directed to the-views expressed by the United States Supreme Court in the case of F. May & Company v. City of New Orleans, 178 U.S. 496, 20 S.Ct. 976, 44 L.Ed. 1165, which appear analogously to apply in principle to> this case.

The Court said:

“In our judgment, the 'original package’ in the present case was the box or case in which the goods imported were shipped, and when the box or-ease was opened for the sale or delivery of the separate parcels contained' in it, each parcel of the goods lost its distinctive character as an import andl became property subject to taxation by the state as other like property-situated within its limits. * * * We cannot impute to the framers of the-Constitution a purpose to make such a. discrimination in favor of property imported from other countries as. would result if we approved the views, pressed upon us by the plaintiffs. When their goods had been so acted’, upon as to become a part of the general. mass of property in the state the plaintiffs stood, with respect to liability to state taxation, upon the same basis of equality as the owners of like property, the product of this country; * * *

In Hinson v. Lott, 8 Wall. 148, 75 U.S. 148, 19 L.Ed. 387, the United States Supreme Court, in discussing the landmark case Brown v. State of Maryland, 12 Wheat. 419, 25 U.S. 419, 6 L.Ed. 678 (1827), said with regard to foreign imports in the hands of the importer:

“ :|: * * y\s soon as they passed out of his hands into use, or were offered for sale among the community at large, they would he liable to a tax which might render their use or sale impossible.” (Italics supplied.)

Appellant’s contention that the later California case of Simon v. County of Los Angeles, 141 Cal.App.2d 74, 296 P.2d 381 (1956), reversed or greatly modified E. J. Stanton & Sons v. Los Angeles County, supra, does not appear to be correct, because in the Simon case the California Court said that E. J. Stanton & Sons, supra: “[Undoubtedly represents the law applicable to a situation where packaging is inherently impossible or impracticable,” but “the Stanton case does not control imports which actually are in packages” as was the situation in the Simon case. The same distinction made in the Simon case applies as -between the instant case and Overstreet v. Frederick B. Cooper Co. (Fla.1961), 134 So.2d 225.

The anomalous nature of the majority opinion in the case is further demonstrated by reference to 51 Am.Jur., pages 140 and 141, where it is stated:

“The doctrine under consideration loses most of its meaning when it is sought to be applied to certain kinds of property. Thus, an individual cow or steer or an entire herd of cattle, transported into a state from a foreign country on the hoof is in no sense of the term to be placed in the category of an ‘original package,’ and if cattle should be transported from a foreign country into a state by train or truck, and each such car or truck should be regarded as an ‘original package,’ the cattle would lose their status as imports as soon as they were unloaded from the train or trucks. If, where oil is imported into the country in tank cars or tank steamers, the cars and boats may be regarded as ‘original packages,’ then such packages are broken and the character of the oil as an import ceases when it is pumped from the cars or boats and stored in tanks within the state, and thereafter the imports and exports clause offers no objection to state taxation. With respect to property of this kind the determining factor in deciding whether the property has lost its status as an import and hence become subject to state taxation under the imports and exports clause appears to be whether it has become mingled with other property in the state. The foregoing test has been followed even where the ranch on which cattle were kept after their importation was designated by the Secretary of the Treasury as a private bonded warehouse for customs purposes.”

and to 15 Am.Jur.2d, Commerce, § 45, which reads as follows:

“Although many and varying definitions have been given, the general gist of the decisions is that an ‘original package’ is that package which, according to custom respecting the particular articles shipped, is usually delivered by the vendor to the carrier for transportation and delivered as a unit to the consignee. It is the package, as a unit, which is delivered by the shipper to the carrier at the initial place of shipment in the exact condition in which shipped. Upon the question what is an ‘original package,’ it is immaterial whether the package is suitable for wholesale or retail trade or whether it is shipped to a'dealer or to a consumer.
“Where an aggregation of articles or packages is, for convenience in shipping, packed and shipped in a larger package or receptacle, the larger package or receptacle, and not the individual articles or packages, constitutes the original package, even though the larger receptacle is unfastened or uncovered. Where the car or vessel itself constitutes the receptacle or container in which the commodity is transported, the car or vessel, together with the contents, constitutes the original package. However, there is authority that where goods are shipped in carload lots, packed in cases, casks, or sacks, the cases, casks, or sacks are the original packages and not the car.
“In cases where packaging is inherently impossible or impracticable, as where lumber which is not fastened together in any way is imported, the ‘aggregation of articles imported’ has been held to constitute, in legal concept, an original package. However, there is also authority to the effect that the ‘original package’ doctrine is inapplicable in a situation where packaging is impossible. Thus, the doctrine has been held inapplicable to imported cattle, since neither an individual cow, nor a herd, nor a stock car in which the cattle are transported, constitutes an original package.”

I believe the weight of authority supports an affirmance of the decree below.

ROBERTS, J., concurs. 
      
      . The language of the questioned decree is “ * * * that the plaintiff has not demonstrated an immunity from taxation pursuant to Article I, Section 10, Clause 2, of the Constitution of the United States, as alleged, * *
     
      
      . Low v. Austin, 13 Wall. 29, 80 U.S. 29, 20 L.Ed. 517; Imperial Development Co. v. City of Calexico, 47 Cal.App. 666, 191 P. 50; Simon v. County of Los Angeles, 141 Cal.App.2d 74, 296 P.2d 381.
     
      
      . Anglo-Chilean Nitrate Sales Corp. v. State of Alabama, 288 U.S. 218, 53 S.Ct. 373, 77 L.Ed. 710. 58 Harvard Law Rev. 858.
     
      
      . Tres Ritos Ranch Co. v. Abbott, 44 N.M. 556, 105 P.2d 1070, 130 A.L.R. 963.
     
      
      . Ibid.
     
      
      . Mexican Petroleum Corp. v. City of South Portland, 121 Me. 128, 115 A. 900, 26 A.L.R. 965.
     
      
      . Ibid.
     
      
      . Ibid.
     
      
      . E. J. Stanton & Sons v. Los Angeles County, 78 Cal.App.2d 181, 177 P.2d 804, cert. den. 332 U.S. 766, 68 S.Ct. 75, 92 L.Ed. 352; McGregor v. Cone, 104 Iowa 465, 73 N.W. 1041, 39 L.R.A. 484; Re: Agnew, 89 Neb. 306, 131 N.W. 817, 35 L.R.A.,N.S., 836.
     
      
      . Simon v. Los Angeles County, 141 Cal.App.2d 74, 296 P.2d 381.
     
      
      . Ibid.
     