BELCHER OIL COMPANY, a Florida corporation, and Parman Kendall Corporation, a Florida corporation, Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee, 271 So. 2d 118

ROBERTS,.Chief Justice. This cause is before this Court on direct appeal from the Circuit Court of Dade County. The trial court passed directly on the constitutionality of Fla.Stat. § 167.431, F.S.A., declaring said statute to be valid. We have jurisdiction. Fla. Constitution

Article V, § 4(2), F.S.A. In 1970, the Board of County Commissioners of Dade County as the metropolitan or municipal government of the unincorporated areas of Dade County enacted Ordinance No. 70-72 to become effective October 1, 1970. This Ordinance which was enacted pursuant to Fla.Stat. § 167.431, F.S.A., provided, inter alia, “Section 2.

Rate and Amount of Excise Tax on Purchase of Public Utility Services: Collection of Tax. “There is hereby levied and imposed by the county upon every purchase in the unincorporated area of electricity, metered gas, bottled gas, fuel oil, telephone service, telegraph service, and water service, included in or reflected by any bill rendered by the seller to the purchaser an excise tax which shall be as follows:

(1) When the seller, in accordance with his rules and regulations, renders a bill to the purchaser to cover purchases made during the period of time to which the bill is applicable the amount of excise tax shall be ten percent, exclusive of governmental charges and taxes, shown on any such bill, due and payable on account of such purchases of such total amount.”

Section 167.431 authorizes municipalities to levy a tax on public services. The language of said statute pertinent to the case before this Court provides as follows: “

(1) The several cities and towns in this state are hereby given the right, power, and authority, by nonemergency ordinance, to impose, levy and collect on each and every purchase of electricity, metered or bottled gas (natural liquefied petroleum gas or manufactured), water service, telephone service and telegraph service in their corporate limits, a tax (straight percentage, sliding scale, graduated or other basis) in an amount not to exceed ten per cent of the payments received by the seller of such utility service. ...

In the event any such ordinance imposes such a tax on the purchase of one of the utility services described herein and a competitive utility service or services are purchased in the city or town, then such ordinance shall impose a tax in like amount on the purchase of the competitive utility service or services whether privately or publicly owned or distributed; however, telephone service and telegraph service shall not be required to be considered competitive services.

Provided, however, that the city or town shall notify the seller of such utility service in writing of any change in the boundaries of the municipality or in the rate applicable to such tax. “

(2) All laws, general and special, in conflict with the provisions of this

section are hereby superseded to the extent of such conflict, it being the purpose and intent of the legislature to confer the right and authority hereby granted to the several cities and towns notwithstanding any limitations or restrictions which may be contained in any general or special law; but nothing contained in this

section shall be construed to affect or repeal gross receipts taxes imposed by

chapter 203.” (emphasis supplied) Appellants, plaintiffs-below, Belcher Oil Company and Parman Kendall Corporation, which respectively sell and purchase fuel oils within the unincorporated limits of Dade County, and which were thereby subjected to the terms of the Ordinance, filed a declaratory action on October 30, 1970, challenging the constitutionality of both the Ordinance and its enabling act, Fla.Stat. § 167.431, F.S.A.

This declaratory action also challenged the authority of Dade County to impose the excise tax on fuel oils since, appellants alleged, the enabling legislation did not specifically authorize a tax on the purchase of fuel oils, by name. The trial court found the evidence clearly showed that fuel oil service is competitive with bottled gas service, that the enabling act was clear and unambiguous that competitive services not specified by name must be taxed, citing Owen v. Cheney, 238 So.2d 650, (Fla.App.1970).

Having considered the pleadings, evidence and memorandum o>f law filed by each party, the trial court concluded that the Ordinance in question is valid Dade County legislation, that Fla.Stat. § 167.431, F.S.A. is valid State legislation, and therefore the appellants’ complaint and cause should be dismissed with prejudice. We agree with the trial court determination that Fla.Stat. § 167.431, F.S.A. is constitutional and does not constitute an unlawful delegation of legislative authority without objective guidelines or standards.

The words competitive utility service or services are sufficient guidelines for the municipalities to determine what commodities they are authorized to tax if they in their discretion so desire. Failure to include fuel oil in the title of the session law did not invalidate the right of the city to tax the same since the statute in question has been repeatedly reenacted materially unchanged in the biennial revisions of the Florida statutes.

The rule in Florida is that all infirmities or defects in the title of a reenacted statute are cured by reenactment; and this is true whether the statute has been previously declared inoperative or not. See Rodriguez v. Jones, 64 So.2d 278, (Fla.1953); State ex rel. Badgett v. Lee, 156 Fla. 291, 22 So. 2d 804, (1945); Christopher v. Mungen, 61 Fla. 513, 55 So. 273, (1911); State v. Board of Public Instruction, 98 Fla. 66, 123 So. 540, (1929).

However, we cannot agree that Dade County was compelled or mandated by the statute to tax competitive services, but, in our opinion, municipalities are merely authorized or empowered by Fla.Stat. § 167.-431, F.S.A., to levy taxes on public utilities. Whether they choose to enact an ordinance imposing such a tax is within the legislative discretion of the municipality. Because it decided to tax the aforestated utility services specifically designated in the statute, the municipality of Metropolitan Dade County cannot be mandated to levy and collect a tax on fuel oil.

Constitutionally construed, the statute empowers but does not require the city to impose such a tax if the municipality in its discretion finds a particular service to be competitive. Compare City of Tampa, et al. v. Birdsong Motors, Inc. et al., 261 So.2d 1, (Fla.1972).

We recognize the terminology employed by the Legislature in the promulgation of the statute in issue that, “In the event any such ordinance imposes such a tax on the purchase of one of the utility services described herein and a competitive utility service or services are purchased in the city or town, then such ordinance shall impose a tax in like amount on the purchase of the competitive utility service . . . ” (emphasis supplied) Although the term “shall” normally has a mandatory connotation, in proper cases and particularly so where required to conform to constitutional requirements, it may be construed as permissive only.

Lomello v. Mayo, 204 So.2d 550, (Fla.App.1967). A permissive rather than mandatory construction should be given to Fla.Stat. § 167.431, F.S.A. As the Florida Constitution and the case law of this State evidence, the State, through the legislative branch of the government, possesses an inherent power to tax, and a municipality may exercise a taxing power only to the extent to which such power has been specifically granted to it by general law. See Fla. Constitution,

Article VII, § 1(a); Housing Authority of Plant City v. Kirk, 231 So.2d 522, (Fla.1970); and City of Miami Beach v. Lansburgh, 218 So.2d 519, (Fla.App.1969). The right to determine the subjects of taxation and exemptions therefrom is within the Legislature’s prerogative in the exercise of its sovereign power. But this right is subject to the controlling constitutional limitations. Cassady v. Consolidated Naval Stores, Inc., 119 So.2d 35, (Fla.1960). This Court has held in City of Tampa et al. v. Birdsong, supra, municipalities may not impose a particular tax unless specifically authorized by general law to do so.

In Birdsong, supra, the statutes in question, Fla.Stat. § 167.43, F.S.A., provided that, “The city or town council may raise, by tax and assessment upon all real and personal property, and by license on professions, business and occupations carried on within the corporation, all sums of money which may be required for the improvement and good government of the city . . . ” (emphasis supplied) and Fla.Stat. 212.081(3) (b), F.S.A., forbade pyramiding or duplication of excise taxes.

Therein, this Court concluded that the City of Tampa was attempting to go beyond its statutory authorization since it attempted to increase its revenue by taxing sales within the city after having imposed the traditional valid license tax. The general law, Fla.Stat. § 167.-431, F.S.A., permits Dade County to tax those public utilities enumerated in the statute and to tax those services which it finds to be competitive with the specifically stated utilities, but because of constitutional limitation this is a right not an absolute obligation.

If the county does find fuel oil to be competitive with bottled gas, for example, and does within its discretion choose to tax fuel oil, then it may do so. This rationale arises from

interpretation of the language of the new 1968 Fla.Constitution,

Article VII, § 9(a), which constitutes a substantial change in language from the 1885 Constitution,

Article IX, § 5. The 1885 Constitution, supra, provided, “ . . . shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes, and all property shall be taxed upon the principles established for State taxation.” (emphasis supplied)

Section 9(a),

Article VII, 1968 Constitution provides that, “Counties, school districts, and municipalities shall, and special districts may, be authorized by law to levy ad valorem taxes and may be authorized by general law to levy other taxes, for their respective purposes, except ad valorem taxes on intangible personal property and taxes prohibited by this constitution.” (emphasis supplied) Under the foregoing 1968 constitutional provision, the mandatory requirement of F.S.

Section 167.431, F.S.A., that a city taxing one utility service “shall impose a tax in like amount on the purchase of the competitive utility service or services” is abrogated. Cities can refuse to impose a fuel tax because under the 1968 Constitution, a city can only be authorized, not required “by general law” to impose “other taxes.” The first portion of Fla.Stat. § 167.431, F.S.A. is directory and permissive only and not mandatory.

Because of the changes in the 1968 Constitution and the fact that the ordinance in question was passed after these changes became effective, the latter portion of this statute must also be read as directory and permissive as relates to the particular facts of the case presently before this Court. Although the municipality must receive the authority to levy this tax on public utilities, and services competitive thereto, from the Legislature, it has legislative discretion to determine what is competitive and whether, in fact, to impose such a tax.

The First District Court of Appeal has held that the legislative body of a municipality has legislative discretion in the enactment of ordinances for the regulation, government and management of the municipal corporations. So. Daytona Restaurants, Inc. v. City of So. Daytona, 186 So. 2d 78, (Fla.App.1966). It should be noted that the constitutional requirement of equality and uniformity as guaranteed by

Article VII, Fla. Const.1968 (previously

Article IX, Fla. Const.1885) has been held to be inapplicable to excise taxes. Gray v. Central Florida Lumber Co., 104 Fla. 446, 140 So. 320, rehearing denied 104 Fla. 446, 141 So. 604, certiorari denied 287 U.S. 634, 53 S.Ct. 18, 77 L.Ed. 536. Therein, this court held, “Excise taxes have been imposed in many ways, but so long as they are reasonable, not unjustly discriminatory, nor arbitrary, whimsical, irrational, grossly oppressive, plainly unequal, or contrary to common right, they will be upheld. “Perfect equality in the operation of laws imposing a tax on real estate is recognized as impossible.

It is even more difficult to arrive at uniformity in the operation of an excise tax, but mere inequality or lack of uniformity in its operation is no bar to its enforcement. It must be so arbitrary and oppressive as to clearly amount to a denial of due process or of equal protection, and where, as here, the public health and safety are not involved, the ultimate test is whether or not the excise so imposed is so arbitrary and oppressive as to prohibit a great number, if not all, persons from pursuing occupations otherwise lawful. Insofar as Owen v.

Cheney, Fla.App., 238 So.2d 650, writ discharged in Central Oil Co. v. Cheney, 253 So.2d 869 (Fla.1971), may appear to be inconsistent with this opinion, the rule announced therein is modified to conform to this view. Further study of the nature of

Section 9(a),

Article VII, 1968 Constitution, in the light of the rationale of City of Tampa v. Birdsong Motors, Inc., supra, has convinced us of the discretionary operation of the constitutional provision. It could be assumed from the record that the fuel oil tax was imposed because the county, pursuant to the rationale of Owen v. Cheney, supra, believed it had no discretion in the matter but was manda-torily required to impose the fuel oil tax.

Therefore, the judgment under review should be and is hereby vacated and the case remanded for further consideration by the trial court to determine whether or not the taxing authority in its free discretion intended the imposition of the tax or whether it adopted this tax under the belief that it was mandated by the state to do so. The impact of this decision is prospective only, not retroactive, and affords no remedy for fuel oil taxes previously paid by persons not making a judicial attack on the ordinance, sub judice. It is so ordered. ERVIN, CARLTON and ADKINS, JJ., concur.

BOYD, J., dissents in part and concurs in part with opinion. McCAIN, J., agrees with BOYD, J. DEKLE, J., dissents with opinion.