Oliver Wendell Holmes, Jr.

“ It is suggested that there is an arbitrary classification 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. ”

“ 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. ”

“ 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 ”