
    PARAMOUNT-GULF THEATRES, Inc. v. CITY OF PENSACOLA.
    Supreme Court of Florida, en Banc.
    Dec. 14, 1951.
    On Rehearing July 15, 1952.
    On Second Rehearing Dec. 19, 1952.
    
      Yonge, Beggs & Lane, Pensacola, Carroll R. Runyon, St. Petersburg, La Mar Sarra, Jacksonville, Gibbons Burke and Rosen, Kammer, Wolff, Hopkins & Burke, all of. New Orleans, La., for appellant.
    Grover C. Robinson, Jr., F. Churchill Mellen, J. McHenry Jones (of Jones & Harrell), and W. H. Watson (of Watson & Brown), all of Pensacola, for appellee.
   DICKINSON, Associate Justice.

This is an appeal from a decree of the Circuit Court of Escambia County validating certain revenue certificates proposed to be issued by the city of Pensacola to cover the cost of erection of a City Auditorium. As security for the payment of these obligations the city pledged the revenues therefrom as well as the proceeds of an amusement tax and a tobacco tax theretofore levied by the city. Objection to the validation of these certificates on the ground that the city had no authority to levy the amusement tax and hence its pledge was invalid, was made by the appellant here, who intervened in the proceedings below. An additional ground was raised that if the city had such authority, then the levy was so arbitrary and unreasonable as to be unconstitutional.

The lower court validated the bonds as revenue certificates but in his decree found: “That said city has power to irrevocably pledge said amusement taxes and tobacco taxes to the payment of the principal of and interest on said Recreation Certificates, notwithstanding that the levy and collection of such amusement taxes and tobacco taxes, and the pledge thereof, is not specifically authorized by the Charter of said city or by any special or general act of the Legislature of the State of Florida.1’

Thus, the question is, if the city had no specific authority to levy such a tax, can such authority be implied from its charter or by subsequent acts of the Legislature?

It was conceded by the testimony that the revenues from the project would barely cover the cost of maintenance and that therefore the pledge of these excise taxes which heretofore had gone into the general revenue fund of the city was the primary source to be used for the retirement of the certificates.

The city claimed authority to levy the tax from the charter of the city, from special acts of the Legislature, Chapters 26-136 and 26139, Laws of Florida 1949, and from the provisions of Section 23 of Chapter 26319, Laws of Florida, Extraordinary Session 1949, F.S.A. § 212.01 et seq., which latter act is the Sales Tax Act. The appellant, on the contrary, contends that only by a specific grant of power by the Legislature can a city levy an amusement tax and that that power cannot be implied and was not specifically granted by the Legislative Acts above.

The field of amusement taxes clearly falls within the field of excise taxes, which field has long been reserved by the State as a special field of taxation for itself.

We have construed the pertinent portions of the City Charter of the City of Pensacola in the cases of Heriot v. City of Pensacola, 108 Fla. 480, 146 So. 654, and City of Pensacola v. Lawrence, 126 Fla. 830, 171 So. 793, as modified by Asbell v. Green, 159 Fla. 702, 32 So.2d 593. In those cases we said that the Legislature could grant the power to levy excise taxes as here contended, but that if it did so, then such grant should be given in clear and certain terms.

We have already held in several cases that a city has no inherent power to levy excise taxes on amusements in the ab«ence of any specific — we repeat — specific power or grant by the Legislature. See City of Miami v. Kayfetz, 158 Fla. 758, 30 So.2d 521, and City of St. Petersburg v. Florida Coastal Theatres, Inc., Fla., 43 So. 2d 525. The city of Pensacola here has no more power or authority to levy taxes on licenses or privileges than was granted these cities in their charters, the pertinent portions of which were construed or involved in those cases, unless it be as coming from its power “to exercise any power that the Legislature could legally grant.” Section 2 of the Charter Act of the City of Pensacola, Chapter 15425, Sp.Laws of Florida 1931, provides “it is intended that the City of Pensacola shall have, and may exercise all powers which under the Constitution of Florida, it would be competent, for this charter specifically to enumerate.” The city also contends that its present charter retained all powers of preceding charters granted it, Chapter 6087, Laws of Florida 1909, which in Section 1 thereof provided that the city could “levy and impose license taxes * * * upon any and all occupations and upon any and all privileges *' * as fully and 'to the same extent and in the same manner that the Legislature could impose such licenses and taxes, for city purposes * * These provisions cannot in any way be construed as a grant of specific authority to levy an amusement or admission tax, for to so hold would amount to the approval by this court of permitting a complete abdication of its Legislative power by the Legislature in favor of a city, which, of course, cannot be done. The Legislature cannot abdicate its power to a city or municipality. A municipality is a creature of the Legislature and must derive its powers from its acts. To permit this could result in the absurdity that the Legislature could say: “We create the City of Pensacola and give it all powers that we could give it at any time for any purpose.” We cannot conceive of this as being a proper delegation of power under our tripartite system of government.

Hence we must see whether the two above special acts of Legislature of 1949 pertaining to the City of Pensacola or the Sales Tax Act granted the city such authority.

Chapter 26136 aforesaid merely grants to the city authority to pledge excise taxes for certain purposes and thus is not applicable.

Chapter 26139 is an act validating and confirming all acts and proceedings of the City Council of Pensacola and ordinances appertaining thereto relative to the pledge of the revenues of the auditorium and recreation pier of the city-and the proceeds of the amusement taxes and tobacco taxes levied and collected by the city for a $1,000,000.00 issue of revenue certificates. Nowhere in this Act is there any specific authority or grant to the city to levy an amusement tax. It presupposes only that the levy had been validly made. Thus it fails to give the city such authority.

The Sales Tax Act says in Section 4 “no municipality * * * shall hereafter (after Nov. 1, 1949) levy an excise tax on amusement admissions” and Section 23 says: “Nothing herein contained shall be construed as repealing any general or special act authorizing a municipality to levy a special tax upon admission tickets which said tax is now being levied by such municipality." Thus there can be no comfort to the city in this provision because the saving clause must necessarily presuppose a preexisting or pre-granted right to levy the tax. In other words, the tax must have 'been legally levied under authority theretofore granted a city by the Legislature. This is not a grant of authority to levy a tax, but only a recognition of such a grant as may have been specifically made by the Legislature at some previous time.

In our opinion this case is identical with the case of City of Miami v. Kayfetz, supra, wherein we said that statutes authorizing the levy of taxes are to be strictly construed; they are not to be extended by implication, nor is their operation to be enlarged so as to embrace matters not specifically pointed out, though standing upon a close analogy. If the authority to tax is doubtful, the douibt must always be resolved against the tax. We reiterate this and say that the Legislature could have granted this power to the city of Pensacola but we do not feel that it has so far by its enactments.

We 'have carefully considered the authorities submitted by the city as well as the questions of res adjudicata and estoppel raised by it. A previous bond validation proceeding is only res adjudicata as to the questions raised therein. The question here involved, that is, whether the city had authority to levy the amusement tax, was not raised in either State v. City of Pensacola, Fla., 43 So.2d 340, or City of Pensacola v. Fillingim, Fla., 46 So.2d 876; Therefore these cases- are not res adjudicata as to the issues here. Estoppel cannot be raised here by the city because it only lies when a party has been damaged, thus permitting the invocation of the rule. Here the city has not been harmed, if anything, it has been bene-fitted by the levy and collection of the tax in question.

Having determined that the city had no power to levy the tax herein pledged, it is unnecessary to determine whether the same is unreasonable and discrim,inatory as contended in appellant’s second question.

Hence it follows that the judgment and decree of the lower court must be affirmed but with directions to delete that portion thereof authorizing the pledge of amusement taxes to the payment or security of the revenue certificates here involved.

SEBRING, C. J., and TERRELL and HOBSON, JJ-, concur.

CHAPMAN and ROBERTS, JJ., dissent.

MATHEWS, J., not participating.

On Rehearing

PER CURIAM.

On rehearing granted, we have reconsidered the effect of Chapter 26139, Laws of Florida, Special Acts of 1949, on the question of the authority of the City of Pensacola to levy the amusement tax here in question and have determined that an erroneous conclusion was reached in the opinion heretofore entered in this cause.

It may be conceded that, since the decision of this court in City of Miami v. Kayfetz, 158 Fla. 758, 30 So.2d 521, a tax of the kind here in question cannot be levied under the express authority of the City of Pensacola to “levy and impose license taxes * * ‘ * upon any and all occupations and upon any and all privileges * * Laws 1909, c. 6087. And this court appears to follow the rule that a grant of general taxing power to a municipality does not authorize it to impose an excise tax. City of Pensacola v. Lawrence, 126 Fla. 830, 171 So. 793. Also, since the decision of this court in Asbell v. Green, 159 Fla. 702, 32 So.2d 593, it is doubtful that the broad powers given to the City of Pensacola in its charter, as construed by this court in Heriot v. City of Pensacola, 108 Fla. 480, 146 So. 654, would be sufficient without more to justify the imposition of the tax here in question, this court having said in the As-bell case [159 Fla. 702, 32 So.2d 599] that “If there is any intimation in the opinion [in the Heriot case] that this provision of the Charter authorized the City of Pensacola to extend its powers beyond those specifically enumerated or to be reasonably implied as incidental to the specific powers granted, such implication is now overruled.”

We are now persuaded, however, that the amusement tax here in question is on a different footing from those considered in the cited cases.

In 1949, the City adopted an ordinance providing for the construction of a public auditorium, authorizing the issuance of revenue certificates for the payment thereof, and pledging the proceeds'of the amusement tax (which had been levied and collected by the City of Pensacola since the year 1937) to the payment of such certificates. The Legislature then, by Chapter 26139, Laws of Florida, Special Acts of ■1949, validated and confirmed all the acts and proceedings with respect to the issuance of such revenue certificates for such purpose, including the “pledge of * * * the proceeds of the amusement taxes * * * levied, and collected by the City, in the manner provided in the aforesaid ordinances of the City Council of the City of Pensacola heretofore adopted * * Thus, the Legislature authorized the City to incur the obligations for the construction of a public auditorium; it ratified the ordinances levying the amusement tax and pledging this tax to the payment of the obligations; and it must be held that the effect of this statute, Chapter 26139, supra, was to grant to the City of Pensacola the authority to levy the tax in question. See Town of Gulfport, etc., v. Mendels, 127 Fla. 730, 174 So. 8.

We are now confronted with the question of the reasonableness of the amusement tax, but this question must be decided adversely to the contention of the appellant.

In the first place, the appellant would appear to have no standing to contest the reasonableness of the tax, since the tax is paid by the patron of the theatre, and not by the appellant. Moreover, the tax has been levied and collected by the City of Pensacola, without objection by the appellant until the instant suit, since the year 1937. Thus, the appellant’s contention that the tax operates as a deterrent to its business can have little force in the light of the fact that, during this period of time, the appellant has never -complained about the tax, has never challenged its validity, nor taken any steps whatsoever to eliminate or to obtain a reduction of the tax.

In the second place, this is not a tax on the gross receipts of a theatre, such as was stricken down by this court in City of St. Petersburg v. Florida Coastal Theatres, Inc., Fla., 43 So.2d 525, and Martin Theatres of Fla., Inc., v. City of Chipley, Fla., 50 So.2d 179, relied on by appellant. The tax in the instant case is a tax upon the consumer which is added to the cost of the ticket when the patron purchases his admission ticket. The cited cases are not, then, authority for the appellant’s contention that the instant tax is unreasonable, and the appellant has failed to show otherwise that the tax is arbitrary, unreasonable and discriminatory.

The other questions raised by appellant have been carefully considered, but we find no reversible error.

For the reasons stated, we recede from our former opinion and, accordingly, the decree appealed from should be and it is hereby

Affirmed.

SEBRING, C. J., and CHAPMAN, HOBSON, ROBERTS and MATHEWS, JJ-, concur.

THOMAS, J., dissents.

DICKINSON, A. J., adheres to original opinion.

On Second Rehearing

PER CURIAM.

A second rehearing was granted in this case in order to permit counsel for the parties to file briefs on the question of the constitutionality of Chapter 26139, Laws of Florida, Special Acts of 1949.

We have carefully considered this question, in the light of briefs filed, and have concluded that both the notice of intention to apply for passage of the Act, and the title thereto, were sufficient within the meaning of Sections 21 and 16 of Article III of the Constitution of Florida, F.S.A. As to .Section 21, it is well settled that so long as the law finally enacted accords in substance and in purpose and is germane to and within the scope of the subject matter of the published notice, the organic provision is complied with. See State ex rel. Watson v. City of Miami, 153 Fla. 653, 15 So.2d 481; Chase v. City of Sanford, Fla., 54 So.2d 370, 374. Similarly, as to the requirements of Section 16, “The test by which it may be determined whether the title of an act meets this requirement is met if its verbiage is sufficient to put one on notice and cause him to inquire into and ascertain the contents of the body of the act. If it does this, it is sufficient to correct the vice that section 16 of article 3 was designed to cure.” Mayo v. Polk Company, 124 Fla. 534, 169 So. 41, 43.

Both the notice and the title of Chapter 26139 were sufficient to apprise the public that the Legislature proposed to validate all acts and proceedings with respect to the construction and equipment of a municipal auditorium and the issuance of revenue certificates to pay the cost of the construction thereof, and to put the public on inquiry as to the method of paying off such certificates. It is clearly apparent from the body of the Act that, as was stated in the prior opinion of this court on Rehearing 'Granted: “ * * * the Legislature authorized the City to incur the obligations for the construction of a public auditorium; it ratified the ordinances levying the amusement tax and pledging this tax to the payment of the obligations; and it must he held that the effect of this statute (Chapter 26139, supra) was to grant to the City of Pensacola the authority to levy the tax in question.”

It not having been made to appear that Chapter 26139 is subject to the infirmities contended for by appellant, we ,adhere to our former opinion entered on the first rehearing granted in this cause.

It is so ordered.

SEBRING, C J., and HOBSON, ROBERTS and MATHEWS, JJ., concur.

DICKIN'SON, Associate Justice, dissents and adheres to original opinion.

THOMAS and DREW, JJ., not participating.

HOBSON, Justice.

I concur in this opinion on second rehearing because this Court’s Order granting said rehearing limited it to a consideration only of the constitutionality vel non of Chapter 26139, Sp.Laws of Florida 1949.  