Opinion
Opinion Filed February 22, 1938.
An appeal from the Circuit Court for Leon County, J.B. Johnson, Judge.
Baker Baker, Robert A. Baker and Martin Sack, for Appellant;
Cary D. Landis, Attorney General, and H.E. Carter and W.P. Allen, Assistant Attorneys General, for Appellee.
STATEMENT.
Chapter 15658, Acts of 1931, contains the following:
"That all corporations, firms and individuals, including municipalities, receiving payment for electricity for light, heat or power and for natural or manufactured gas for light, heat or power and for use of telephones and for the sending of telegrams and telegraph messages of all such corporations, firms and individuals engaged in any such businesses on or before the first day of January, A.D. 1932, and annually thereafter, report to the Comptroller of the State of Florida on or before fifteenth day of March under oath of the Secretary or other officer of such company, corporation, firm or individual the total amount of gross receipts derived from business done in this State for the preceding calendar year, provided, however, that the first report made March 15th, 1932, shall be for the period from July 1st, 1931, to December 31st, 1931, and at the same time shall pay into the Treasury of the State the sum of One ($1.50) Dollar and Fifty Cents upon each One Hundred ($100.00) Dollars of such gross receipts * * *." Sec. 1.
The bill of complaint herein contains the following:
"BROOKS-SCANLON CORPORATION, a corporation organized and existing under the Laws of Delaware, authorized to do business in the State of Florida, and having its place of business at Foley, Taylor County, Florida, brings this, its bill of complaint, against J.M. LEE, AS COMPTROLLER OF THE STATE OF FLORIDA, who resides in Tallahassee, Leon County, Florida, and thereupon alleges:
I.
"That at all times hereinafter mentioned the Plaintiff was engaged in the business of manufacturing lumber in the Town of Foley, Taylor County, Florida, and as incidental to such business manufactured and produced electric current for the operation of its mills, for the use of the inhabitants of Foley, a town inhabited exclusively by employees of the Plaintiff, and for the lighting of said town; and said current so furnished for the town and its inhabitants was furnished gratis.
II.
"That the electric current produced by Plaintiff's plant was in excess of its personal requirements aforesaid, and the Plaintiff on the 24th day of May, 1929, entered into a certain agreement with The Taylor County Power Company for the sale to it of such excess current, a copy of which agreement is hereto attached, marked Exhibit "A," and made a part hereof; said Taylor County Power Company assigned said Contract to Florida Power and Light Company; that said Contract was duly extended for an additional period of five (5) years in and by said assignment; and that Plaintiff, between July 1, 1931, and December 3st, 1936, sold, under the terms of said Contract, as extended, electric current in the gross amount of $71,370.50.
III.
"Plaintiff further alleges that pursuant to Chapter 15658, Acts of 1931, Laws of Florida, the Defendant has demanded of Plaintiff the payment of the sum of $1,070.55, or at the rate of $1.50 per $100.00 of the gross receipts derived by Plaintiff from the sale of electric current as aforementioned and Defendant has given Plaintiff's Official, five (5) days' notice to report and pay the said tax on such gross receipts, which time has since expired, but Plaintiff has refused and still refuses to make such report or pay said tax for the reasons hereinafter set forth.
IV.
"The Plaintiff has heretofore paid all the taxes imposed upon it and required to be paid by it under Chapters 14677 and 15726, Laws of Florida.
V.
"And Plaintiff would further show that the electricity sold by it under the Contract, Exhibit `A' hereto, is not furnished `for light, heat or power' within the meaning of Chapter 15658, but was a sale of electric current in gross for distribution by Florida Power Light Company in such manner and for such uses, including resale, as that purchaser might elect and determine, and Plaintiff says that the use and purpose to which such current was applied by said Purchaser was the resale of the same to ultimate consumers; that said Chapter 15658 was intended to tax the gross receipts of corporations primarily engaged in the business of furnishing electricity to ultimate consumers for light, heat or power, and not to tax incidental production and sale of electric current for uses, such as resale, not specified in said Act; and that Florida Power Light Company has paid the taxes imposed by said Act in relation to the receipts derived by it from the resale of the current purchased by it from the Plaintiff, under the Contract attached hereto as Exhibit `A.'
VI.
"That the Defendant, unless restrained by Order of this Court, threatens to and will impose upon Plaintiff the penalties prescribed by said Chapter 15658 and will enforce the same in the manner provided in said Act, to the irreparable damage and injury of the Plaintiff.
"WHEREFORE, Plaintiff prays the Defendant be enjoined and restrained from enforcing the provisions of said Chapter 15658, Acts of 1931, Laws of Florida, against Plaintiff; and that said Act be held inapplicable to the receipts derived by Plaintiff from the sales of electric current under the Contract hereto attached as Exhibit `A'; and upon final hearing such injunction may be made permanent."
The agreement referred to as "Exhibit A" contains the following:
"A contract between the Brooks-Scanlon Corporation, organized under the laws of the State of Delaware, represented by J.S. Foley, Vice-President, and The Taylor County Power Company, organized under the laws of the State of Maryland, represented by J.B. Whitworth, Vice-President, entered into this 24th day of May, 1929.
"The Brooks-Scanlon Corporation and The Taylor County Power Company have entered into an agreement for the sale of electric current, under the following terms and conditions:
"1. The Brooks-Scanlon Corporation agrees that it will provide in its new power plant in the Town of Foley sufficient capacity to supply The Taylor County Power Company with a maximum of 600 KW during the life of this contract.
"2. The life of this contract shall be for a period of five years beginning the date service is established from the Foley plant, and The Taylor County Power Company shall have the privilege at the expiration of the five-year period of renewing this contract for an additional term of five years under the same conditions and at the same rates, except that if at any time during the second five-year period of this contract it should be necessary for The Taylor County Power Company to increase its price to the public for electric current for lighting or power purposes because of war, panic or any other unusual conditions then the prices named in this contract may be subject to the same percentage increase.
"3. The rate at which the Brooks-Scanlon Corporation agrees to sell power to The Taylor County Power Company is:
"1c per KWH for the first 100,000 KWH used each month.
"6c per KWH for the next 50,000 KWH used each month.
"5c per KWH for all over 150,000 KWH used each month.
"4. The minimum payments under this contract shall be as follows:
First year ................... $12,000.00 per year. Second year .................. $13,000.00 per year. Third year and thereafter .... $14,000.00 per year.
* * *
"IT IS ALSO UNDERSTOOD AND AGREED that this contract can only be assigned by The Taylor County Power Company with the consent in writing of the Brooks-Scanlon Corporation."
Temporary injunction was denied and plaintiff appealed, assigning as error the order denying a temporary injunction.
It clearly appears from the bill of complaint and from the agreement made a part of the bill, that the plaintiff corporation "was engaged in the business of manufacturing lumber in the Town of Foley, in Taylor County, Florida, and as incidental to such business, manufactured and produced electric current for the operation of its mills, for the use of the inhabitants of Foley, a town inhabited exclusively by employees of the Plaintiff, and for the lighting of said town; and said current so furnished for the town and its inhabitants was furnished gratis"; that the electric current produced by plaintiff's plant was in excess of its personal requirements aforesaid, and that plaintiff entered into an agreement for the sale of its excess current.
The agreement provides that the plaintiff "agrees that it will provide in its new power plant in the Town of Foley sufficient capacity to supply the other party with a maximum of 600 KW during the life" of the contract.
Plaintiff further alleges that the electricity sold by it is not "for light, heat or power" within the meaning of Chapter 15658, but was a sale of electric current in gross for distribution in such manner and for such uses, including resale, as the purchasers elect and determine, and plaintiff says that the use and purpose to which such current was applied by said purchaser was the resale of the same to consumers; "that said Chapter 15658 was intended to tax the gross receipts of corporations primarily engaged in the business of furnishing electricity to ultimate consumers for light, heat or power, and not to tax the incidental production and sale of electric current for uses, such as resale, not specified in said Act; and that Florida Power Light Company has paid the taxes imposed by said Act in relation to the receipts derived by it from the resale of the current purchased by it from the Plaintiff."
In denying a temporary injunction the Circuit Judge necessarily held the plaintiff to be liable to the tax imposed by Chapter 15658, Acts of 1931. The tax is upon "all corporations, firms and individuals, including municipalities, receiving payment for electricity for light, heat or power" * * * in "the sum of One ($1.50) Dollar and Fifty Cents upon each One Hundred ($100.00) of such gross receipts."
It is contended for appellant that "the employment of the qualifying words `for light, heat or power' connotes that the business, the privilege of doing which is to be taxed, is that of what is commonly known as an electric light company, which furnishes electric current to consumers for use by them in the form of light, heat or power."
Section 2 of Chapter 15658 provides that "the tax hereby imposed shall only be upon the total amount of gross receipts received from business done between points in the State of Florida on the part of such companies."
The plaintiff is a corporation or company, and it does not appear that the "payments for electricity" upon which the tax is imposed, are not received from business done between points in the State of Florida. The plaintiff appellant here alleges that "the use and purpose to which such current was applied by said purchaser was the resale of the same to ultimate consumers." The customary, if not the only, uses of electric current by consumers are for "light, heat or power"; and it reasonably may be inferred from the record that the electric current generated at the plaintiff's "new power plant" is to be used for "light, heat or power" purposes. The mere fact that payments received for electricity are from a purchaser who sells to consumers, does not make the transactions other than those of "receiving payment for electricity for light, heat or power" purposes.
The statute does not limit the tax to receipts from retail sales, or to receipts from the first intrastate sale of electric current; but specifically imposes the tax upon those "receiving payment for electricity for light, heat or power," not upon those receiving payment for electricity from consumers for light, heat or power. The intent of the statute clearly appears by the language used; and such language is not ambiguous as to the tax imposed upon "all corporations * * * receiving payment for electricity for light, heat or power," it appearing that receipts by plaintiff are for electricity to be resold to "consumers."
In Commonwealth v. Pennsylvania Water Power Co., 271 Pa. St. 456, 114 A. 489, the tax was upon gross receipts "from the business of electric light companies." Here the tax is upon "all corporations, firms and individuals * * * receiving payment for electricity for light, heat or power," there being no exemptions from the tax. The fact that plaintiff corporation pays taxes levied on other business done by it, does not exempt it from the specific excise tax here imposed upon "all corporations."
Affirmed.
ELLIS, C.J., and TERRELL, BROWN, BUFORD and CHAPMAN, J.J., concur.