The constitution of the state is not taken up into the
Fourteenth Amendment of the Constitution of the United States.
Burt v. Smith, 203 U. S. 129.
A state tax will not be upset under the equal protection
provision of the Fourteenth Amendment upon hypothetical or unreal
possibilities if good upon facts as they are.
Keokee
Consolidated Coke Co. v. Taylor, 234 U.
S. 224.
Quaere whether a classification of sleeping and parlor
car companies excluding railroad companies operating their own
sleeping and parlor
Page 235 U. S. 24
cars is so arbitrary as to be unconstitutional under the equal
protection provision of the Fourteenth Amendment.
The provision in the statute involved in this case that the
proper state officer fix the amount of gross receipts on which the
tax shall be based in case the party subject to the tax shall fail
to make a report of the actual gross receipts as required by the
statute
held not a deprivation of property without due
process of law under the Fourteenth Amendment as denying an
opportunity to be heard.
The court in this case declines to overthrow a state taxing
statute on the ground of its invalidity under the state
constitution as the decisions of the state court sustaining similar
statutes are apparently broad enough to cover this statute, even
though there may be possible distinctions between it and the
statutes involved in the other cases.
Louisville &
Nashville R. Co. v. Garrett, 231 U. S. 298.
The statutes of Florida of 1907 and 1913 imposing taxes on
sleeping and parlor car companies
held not
unconstitutional under the federal or the state constitution.
The facts, which involve the constitutionality of a statute of
Florida taxing sleeping car companies, are stated in the
opinion.
Page 235 U. S. 25
MR. JUSTICE HOLMES delivered the opinion of the Court.
These are suits to prevent the collection of a tax on gross
receipts for different years, derived from business done by the
appellant in the State of Florida, and to have the laws under which
the tax would be assessed declared contrary to the Fourteenth
Amendment. The bills are like those stated in
231 U. S. 231 U.S.
571, and aver the following facts: Chapter 5597 of the Laws of
Florida for 1907, now § 44 of Chapter 6421 of the Laws of 1913,
imposes a license tax, which has been paid. Section 46 of Chapter
5596 of the Laws of 1907, imposes a tax
ad valorem, which
also has been paid, with immaterial exceptions. Up to 1907, this
property tax had not existed, but sleeping and parlor car companies
had been required to make a return of gross receipts from business
done between points within the state, and to pay a percentage upon
such returns, which it paid in lieu of all other taxes. But by § 47
of said Chapter 5596 (now § 45 of Chapter 6421 of the Laws of
1913), the last-mentioned tax was continued in force alongside of
the new
ad valorem tax of § 46, and the appellant contends
that, after the levying of a property tax, the tax on gross returns
became void. An application for a preliminary injunction was heard
before three judges and was denied, whereupon this appeal was taken
and a supersedeas was granted upon payment of the sum in dispute
into court.
The cases come here upon an alleged infringement of the
Constitution of the United States, but are argued mainly upon the
constitution of the state. Of course, the latter is not taken up
into the Fourteenth Amendment.
Castillo v. McConnico,
168 U. S. 674;
Burt v. Smith, 203 U. S. 129,
203 U. S. 135.
It can be considered only because the cases come from the district
court upon the other ground. We will deal with the federal question
first. It is suggested that there is an arbitrary
classification
Page 235 U. S. 26
because the tax is confined to sleeping and parlor car
companies, and does not fall upon railroads operating their own
sleeping and parlor cars. If otherwise this were a valid objection,
as to which we need express no opinion, it is enough to say that a
tax is not to be upset upon hypothetical and unreal possibilities
if it would be good upon the facts as they are.
Keokee
Consolidated Coke Co. v. Taylor, 234 U.
S. 224. It does not appear that any railroad in Florida
does operate its own sleeping or parlor cars, and the attorney
general of the state denies that such a case exists.
The other objection urged is that the taxpayer is not given a
hearing. The statute, as we have said, requires the companies to
make a report and fixes a percentage ($1.50 per $100) to be paid.
If the report is not made, the comptroller is to estimate the gross
receipts and add ten percent of the amount of the taxes as a
penalty. If the companies do as required, there is nothing to be
heard about. They fix the amount, and the statute establishes the
proportion to be paid over.
Bell's Gap R. Co. v.
Pennsylvania, 134 U. S. 232. The
provision in case of their failure to report is not, as it seemed
to be suggested in argument, an alternative left open for the
companies to choose. It is a provision for their failure to do
their duty. In that event, their chance and right to be heard have
gone by.
We do not feel called upon to discuss the objections under the
constitution of the state at length. Starting with the conceded
proposition that the tax, to be valid, must be either
ad
valorem or a license tax, the appellant argues that this
cannot be a license tax, as was held by the judges who refused the
injunction, because the payment of it is not made a condition of
the right to do business, because another tax is imposed in terms
for a license, and because the history of the law shows that for
years it took the place of a property tax. These considerations
Page 235 U. S. 27
undoubtedly are very strong. But, as we are dealing with the
validity of the law under the state constitution, a matter that
must be decided finally by the state court, and as the state court
has held other gross earning taxes to be license taxes
(
Afro-American Industrial & Benefit Ass'n v. State, 61
Fla. 85, 89), we are of opinion that, if this act is to be
overthrown, it should not be overthrown by us. It is true that
there are possible distinctions between this case and the Florida
decision cited, but it seems to us not improbable that the supreme
court had in view a principle broad enough to cover the case at
bar.
Louisville & Nashville R. Co. v. Garrett,
231 U. S. 298,
231 U. S.
305.
Decree affirmed.
