The opinion
This appeal is taken from an interlocutory order granting the motion of appellees to dismiss the amended bill brought by the appellants to enjoin the enforcement of Chapter 15624 of the Laws of Florida adopted in 1931, on the ground of the alleged unconstitutionality of said act.
Section 5 of the act reads:
"Section 5. Every person, firm, corporation, association or co-partnership opening, establishing, operating or maintaining one or more stores or mercantile establishment within this State, under the same general management, supervision or ownership shall pay the license fee hereinafter prescribed for the privilege of opening, establishing, operating or maintaining such stores or mercantile establishments. The license fee herein prescribed shall be paid annually, and shall be in addition to the filing fee prescribed in Sections 2 and 4 of this Act.
"The license fees herein prescribed shall be as follows:
"(1) Upon one store, the annual license fee shall be Five Dollars for each such store.
(2) Upon two stores or more, but not exceeding fifteen stores, where the same are located in any one county, the annual license fee shall be Ten Dollars for each such additional store.
(3) Upon two stores or more, but not to exceed fifteen stores, where the same are located in different counties, the annual license fee shall be Fifteen Dollars for each such additional store.
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(4) Upon each store in excess of fifteen, but not to exceed thirty, when all are located in any one county, the annual license fee shall be Fifteen Dollars for each such additional store.
(5) Upon each store in excess of fifteen, but not to exceed thirty, where the same are located in different counties, the annual license fee shall be Twenty Dollars for each such additional store;
(6) Upon each store in excess of thirty, but not to exceed fifty, where all are located in any one county, the annual license fee shall be Twenty Dollars for each such additional store.
(7) Upon each store in excess of thirty, but not to exceed fifty, where the same are located in different counties, the annual license fee shall be Thirty Dollars for each such additional store.
(8) Upon each store in excess of fifty, but not to exceed seventy-five stores, where all are located in any one county, the annual license fee shall be Thirty Dollars for each such additional store.
(9) Upon each store in excess of fifty, but not to exceed seventy-five, where the same are located in different counties, the annual license fee shall be Forty Dollars for each such additional store.
(10) Upon each store in excess of seventy-five where all are located in any one county, the annual license fee shall be Forty Dollars for each such additional store.
(11) Upon each store in excess of seventy-five, where the same are located in different counties, the annual license fee shall be Fifty Dollars for each such additional store.
In addition to the above amounts, Three Dollars for each and every One Thousand Dollars of value of stock carried in each store or for sale in such store."
Section 11 of the act provides that:
Section 11. A county license tax of twenty-five per cent. of the state license tax shall be levied and imposed upon each store as herein defined and each incorporated municipality of the State of Florida is authorized to levy a municipal license tax of twenty-five per cent. of the State tax imposed by this Act, provided that the tax levied by or for the several counties and municipalities *Page 633
shall be graduated only on the number of stores situate in such county or municipality, respectively, notwithstanding the applicant may own other stores beyond the limits of such county or municipality, as the case may be. In all cases coming within this Section of this Act, where the license must be obtained from the Comptroller of the State of Florida, the county and municipal taxes shall be paid by the applicant to the Comptroller and immediately remitted to the proper officers of the several counties and municipalities of the State.
The plaintiffs, Louis K. Liggett Company, owning and operating 22 retail drug stores in various counties in Florida, Winn Lovett Grocery Company, owning and operating 58 retail grocery stores in various counties in this State, and Paxson's Inc., owning and operating seven shoe stores in Florida and one in Georgia, all being corporations, bring this as a class suit, for the benefit of plaintiffs and all other merchants similarly situated who may desire to avail themselves of the benefits thereof. (See section 14, Chancery Procedure Act of 1931). The following parties filed petitions asking that they be allowed to intervene, on account of their interest in the subject matter, and, while setting up facts peculiar to their own situation, adopted the allegations of the bill attacking the constitutionality of the act: Independent Furniture Company; The Nunnally Company, G. R. Kinney Shoe Co., Southern Stores Corporation, South Florida Stores Corporation, Melville Shoe Corporation; J. C. Penney Company, F. W. Woolworth Company, Montgomery Ward Company, the Great Atlantic Pacific Tea Company and the United Cigar Stores Company, all owning and operating retail stores, situated at different points in Florida. Montgomery Ward Company allege that they operate only one store in Florida, but the other petitioners allege that they own and operate varying numbers of stores in this State, running from three to 226 stores each, most of them operating *Page 634
stores in more than one county. Several of these petitioners were by order of the court permitted in intervene.
This cause is now before this court on an application for a temporary restraining order, pending a determination of the appeal upon its merits, thereby involving the power of the court under sec. 5 of Art. V of the Constitution. Autuono v. City of Tampa, 87 Fla. 82 , 99 So. 324 . But the court sees fit to dispose of the appeal upon its merits, as has been done in a number of instances involving matters of public importance. Crawford v. Gilchrist, 64 Fla. 41 , 69 So. 963 ; Carlton v. Mathews, 137, So. 815.
The act is first attacked upon the ground that the subject matter was not within the Governor's proclamation of June 6, 1931, calling the extra session during which this act was adopted. It is not contended that the act was not finally adopted by a "two-thirds vote of each house," as required by section 8 of Art. IV of the Constitution, but that certain amendments and the motion of concurrence in the House are not shown to have been adopted by a two-thirds vote. Whether this would or would not have been essential, if the act was outside the subjects named in the Governor's call, it is contended by appellees that the second subject dealt with in the Governor's proclamation, commencing with the words, "To provide new sources of revenue," is sufficiently broad to cover an act of this nature.
The ground of appellants' attack upon the constitutionality of the act which are most earnestly insisted upon in the arguments and briefs are briefly as follows:
1. That subsections 1, 2, 4, 6, 8 and 10 of section 5, as applied to the factual situation set forth in the amended bill and admitted by the motion to dismiss, create arbitrary and unreasonable discriminations between single store retail merchants and chain or multiple store retail merchants doing business in the same county, contrary to the "due *Page 635
process" and "equal protection of the laws" clause of the Fourteenth Amendment to the Federal Constitution, and the "equal civil rights" and "due process" clause of sections 1, 4 and 12 of the Declaration of Rights embraced in the Constitution of Florida.
2. That subsections 1 to 11 inclusive of section 5, as applied to the facts alleged in the bill, create arbitrary and unreasonable discriminations between retail merchants doing business in only one county, whether single store or multiple store merchants, and merchants such as plaintiffs doing business in different counties, contrary to the above designated constitutional provisions; and that section 11 of the act, undertaking to provide for county and municipal license taxes for retail merchants, is predicated upon the fees required by section 5, and is void for the same reasons.
3. That provisions of section 8, the last clause of section 5, and section 2 of said Act, exempting wholesale merchants (who remain subject to the license tax provided for by section 1197 Compiled General Laws), as applied to the "factual situation" set up in the amended bill, create arbitrary and unreasonable discriminations against all chain or multiple retail merchants who own and operate warehouses, that stand in the same relation to their retail units as the wholesale merchant bears to single store retail merchants, contrary to the aforesaid provisions of the State and Federal Constitutions severally.
4. That the proviso contained in section 8 of said Act undertaking to exempt filling stations engaged exclusively in the sale of gasoline and other petroleum products, as applied to the "factual situation" set up in the amended bill, admitted by the motion to dismiss, creates an arbitrary and unreasonable classification and discrimination against all other owners of retail "stores" as defined by said Act, contrary to the aforesaid provisions of the State and Federal Constitutions severally. *Page 636
5. That on account of the invalidity of the several parts of said Act, as aforesaid, the elimination thereof would produce a result not intended by the legislature, and hence said Act must be declared void in its entirety.
6. That the Comptroller's attempted administration of the Act, as set forth in section 15 of the amended bill, undertaking to exempt furniture dealers, filling stations that sell tires and tubes, automobile dealers, cigar stores, restaurants, and sundry other classes of store operators, regardless of whether single store operators or chain store operators, creates arbitrary and unreasonable discriminations against the complainants and intervenors severally in this cause, contrary to the "due process' clauses and "equal protection of the laws" clauses of the State and Federal Constitutions severally as aforesaid.
The bill sets forth the origin and history of the development of the present-day chain store or multiple store method of merchandising, which it alleges to be a natural and logical outgrowth of economic changes, especially those taking place since the World War, and charges that the act under review is a part of a widespread campaign to destroy chain store merchandising for the benefit of those merchants who refuse to adjust their businesses to conform to the changed economic conditions, and constitutes, under the guise of a revenue measure, an effort to destroy or arbitrarily burden a method of merchandising which has become an economic necessity, in order to eliminate waste and shorten the spread between the producer and the consumer, which it is alleged was pointed out by the Department of Commerce when the present President was at the head of that Department. That said Department stated that at that time about one-third of every American dollar spent in the stores in this country covered the actual cost of production, while the other two-thirds was absorbed in the process of distribution, whereas by a recent investigation *Page 637
by the Harvard Board of Business Research it has been found that in the grocery field chain stores are able to operate on less than 20 per cent. of the consumer's dollar, of which 1 3/4 per cent. is net profit, leaving 80 per cent. to go to the producer. Also, that similar changes have been accomplished in other fields by chain stores handling other classes of merchandise, thus going a long way towards eliminating the "tragic economic waste" of which Mr. Hoover spoke. That the policy so inaugurated had also been fostered by state governments, including Florida, by the enactment of the act of 1923 authorizing the formation of co-operative marketing associations, the declared policy of which was to eliminate speculation and waste between the producer and the consumer.
That under this act, which became a law without the Governor's approval on July 3, 1931, Cohen Brothers, the largest department store in Jacksonville, covering a whole block, will only have to pay a license fee of $5.00, while complainant Winn Lovett Grocery Co. would have to pay $40.00 per store on each of its 58 stores in excess of fifty stores, and lesser graduated amounts for each store below fifty; and Louis K. Liggett Company, on its 22 stores, $20.00 per store in excess of fifteen. That like arbitrary differences exist between the single store operator and Paxson's Inc., owning and operating seven shoe stores in different counties; which discriminations are based purely upon the number of roofs under which a merchant does business, and whether located in more than one county.
That George C. Blume owns and operates in Duval County thirty-seven grocery stores, known as "Whiddon's Stores," which are similar to and operated under the same circumstances and in the same manner as the twenty-three grocery stores in Duval County owned and operated by complainant, Winn Lovett Grocery Company but that under the arbitrarily increased fee on stores operated in *Page 638
more than one county, embraced in the schedule set forth in section 5 of the Act, complainant is required to pay a State license fee averaging of $24.74 per store on each of its stores in Duval County, whereas the Whiddon Stores are only required to pay $13.78 per store on each of its stores located in the same county. That similar discriminations exist as against the other complainants, all of whom operate stores in more than one county, and that there is no justification whatever for such discrimination, based as it is solely upon the fact that a merchant does business in more than one county in this State.
That said Louis K. Liggett Company operates its drug stores in several counties of Florida in the same may that other drug stores in the county are operated whether owned singly or otherwise. That the merchandise dispensed at the soda founts in such stores is very largely purchased locally, consisting of such items as milk, foodstuffs, ice cream, nuts, fruits, etc. That said company purchases cigars, cigarettes and tobacco from the manufacturer and shipments are made directly to the stores where needed, substantially in the same manner that those classes of goods are purchased and received by the owners of single drug stores. That some of the medical and toilet goods are purchased by the Company and collected in its principal warehouse in New York City, from which shipments in interstate commerce are made weekly or bi-monthly on requisition by the individual stores located in Florida and other States. Such frequent shipments are necessary in order to permit more rapid turnovers, keep fresh goods in retail units and prevent the accumulation of old or shelf-worn stock. That the owner of a single drug store ordinarily buys his supply of medical and toilet goods from the manufacturers, jobbers or wholesalers and shipments are made either from some factory or from Florida wholesale warehouses. That no advantage results to said company by buying merchandise *Page 639
in large quantities and centralizing the same in a central warehouse, but the operation of such central warehouse involves the expense of the capital investment in such stock or merchandise, the interest, taxes and insurance thereon, investment in warehouse, and freight paid from the warehouse to the several stores. That none of these items of expense or burdens are borne by the owners of single drug stores who ordinarily purchase their merchandise locally from brokers or wholesalers. That none of the stores operated by this complainant increase the fire hazard or endanger the health or morals of the community or require increased or additional police protection different from the stores operated by other druggists doing a similar business. That the twenty-two Liggett stores operated in Florida are burdened with State license fees in the aggregate amount of $355.00, whereas twenty-two individually owned drug stores competing with the Liggett stores are assessable with State license fees in the sum of only $110.00.
That complainant, Louis K. Liggett Company, has competition in Florida not only from individually owned drug stores, but also from a great number of drug stores individually owned but co-operatively affiliated with McKesson and Robbins Inc., wholesale dealers in drugs, toilet articles, and other goods, wares and merchandise, operating throughout the United States. That the drug stores so affiliated with McKesson and Robbins constitute what is commonly known as "voluntary chain" stores but which would be more properly designated as a "co-operative chain" store. That the aforesaid manufacturer-wholesaler-retailer combination in the production and distribution of drugs enables the individual single store owner affiliated therewith to sell at retail under the same terms and conditions as those established by chain store systems and department stores. That in such McKesson retail drug *Page 640
stores the consumer can find in almost any neighborhood in the United States drugs at the same prices and as extensively advertised as in chain drug stores. That McKesson and Robbins, Inc., have four wholesale distributing points in the State of Florida. That the wholesale distributor at the several points enters into contracts or arrangements with the owner or operators of singly owned drug stores whereby such owners agree to purchase from such distributor in that locality in the State of Florida all of the drugs, toilet articles and other goods handled in drug stores or such of them as may be carried and sold by the distributing warehouse, in consideration of which the distributor of the McKesson system agrees to give to such drug store owner whatever benefits may arise from the volume resulting from his purchases and buying with the purchasers of all other retailers and drug store owners affiliated with said system, and also agrees and does furnish to each retail store owner the benefit of group advertising, including National Radio advertising and merchandising service supplied by and through said McKesson organization. That there are owned and operated in the City of Jacksonville, thirty-five individually owned drug stores affiliated with the McKesson system, while at other points in the State of Florida there are numbers of stores thus affiliated, and that the total number of independent drug stores in the United States and elsewhere affiliated with said McKesson system is 57,000. That said McKesson retail stores are able to purchase merchandise substantially at the same price and on the same terms as your orator, and the total sales made by such stores in Florida amount to a great many times the total sales of the twenty-two stores operated by said Liggett Company, and enjoy all of the advantages accruing from quantity buying, and none of the disadvantages resulting from capital invested in quantity purchased, in warehouses, insurance, etc. Nevertheless, *Page 641
each of such individually owned drug stores affiliated with the McKesson system is required by said Act to pay a State license fee of only $5.00 each, whereas complainants stores must pay a State license of $16.00 each, thus imposing an arbitrary and oppressive burden of taxation upon complainant only because it owns and operates a number of stores under one ownership and management.
The bill also alleges the methods pursued by the Winn and Lovett Grocery Company in the operation of its fifty-eight grocery stores in various counties of the State, and alleges that they are operated in the same manner that similar grocery stores are operated by owners of only one such grocery store; and that the operation of such stores does not increase the fire hazard or endanger the health or morals of the community or require increased or additional police protection any more than stores individually owned. That there is very keen competition in the grocery business in Florida, although many chain grocery store owners operate in the State. That the "Better Food Stores" are a group of individually owned grocery stores affiliated with Lewis-Chitty Consolidated Grocery Co., which does a large wholesale grocery business in the City of Jacksonville, with branch wholesale houses at Orlando, Tampa, Cocoa, Miami and other points. That the name "Better Food Stores" is a trade name belonging to a corporation whose corporate name is "Better Food Stores Inc." That one of the organizers of said corporation is A. B. Chitty, the President and controlling stockholder of said Lewis-Chitty Consolidated Grocery Co. That the formation of such co-operative groups as said "Better Food Stores" has been encouraged by the discrimination of said Act. That on June 18, 1931, another grocery corporation was organized under the name of "Florida Food Stores, Inc.," by certain individuals in the grocery business at Daytona Beach, Florida, and under the name a number of individually *Page 642
owned grocery stores have been affiliated for co-operative purchases in the same way as the aforesaid group operating under the name of "Better Food Stores." And in like manner other co-operative groups of independently owned grocery stores have been formed under trade names, or otherwise since the passage of said Act, being assured that they could so operate without being subjected to the discriminatory graduated license fees provided by the Act. That although the said "Better Food Stores" group were organized on June 8, 1931, about the time said Act was passed, or introduced into the legislature, the same has had a very rapid growth, there being forty-two individually owned grocery stores in the Duval County group, and other groups have been formed at several other points where the said Lewis-Chitty Company has branches of its wholesale grocery business. That by such affiliated and co-operative organizations single grocery store owners have adopted the best feature of chain store merchandising and have secured substantially all the benefits derived therefrom, while at the same time they have avoided the burdens of capital investments, insurance, etc., incident to the carrying of a large stock in a central warehouse, such as is maintained by the Winn Lovett Grocery Company in Jacksonville and Sanford. That the latter company also finds it necessary to maintain a force of employees and a fleet of trucks to deliver merchandise from its warehouse in Jacksonville to its retail units in Duval County and outlying towns, whereas the individually owned stores affiliated as "Better Food Stores" have no such expense and can obtain daily deliveries by motor trucks as needed from the Lewis-Chitty Consolidated Grocery Company with which they are under contract. That such co-operative groups are not local merely to Jacksonville and other parts of Florida, but such methods of co-operative merchandising prevail generally throughout the United States. That the *Page 643
largest organization of independently owned grocery stores in the United States is known as "The Independent Grocers Alliance," which organization now embraces thirty-eight states, has one hundred and thirty jobbing or supply depot centers and has affiliated with it 14,000 retail grocery stores, with a buying power of $500,000,000.00 per year. That the scheme of organization and affiliation of Independent Grocers Alliance and the owner of individual grocery stores is very similar to the relation which exists between the members of said Better Food Stores and the Lewis-Chitty Consolidated Grocery Company or its intermediary, Better Food Stores, Inc. That the retail grocer affiliated with the Independent Grocers Alliance pays $3.50 per week to the Independent Alliance jobber, who in turn furnishes the retailer with groceries at reduced prices, and also newspaper advertising, copy mats, display cards, price-posters, and various up-to-the-minute merchandising helps. That the newspaper advertising is placed by the I. G. A. wholesalers in his local paper, but the copy and layouts are furnished by the I. G. A. advertising counsel. That the I. G. A. advertising appears in 283 dailies and 454 weeklies, and calls for an annual expenditure of $757,000.00, in addition to which there is an annual expenditure of $250,000.00 for National magazine and Radio advertising. That there are in Florida, affiliated with the Independent Grocers Alliance eighty-three retail grocery stores in Tampa, St. Petersburg, and on the West Coast of the Peninsula who get their supplies from Perkins and Sharpe, whose warehouse is situated in Tampa and who are the I. G. A. Jobbers in that territory. That there are many other voluntary chains or co-operative groups in the United States not only in the grocery business, but in other lines and independent store owners so operating have adopted the best features of modern merchandising promulgated by chain or multiple store operators, which features are set forth with some detail in the bill. That although members, *Page 644
of such voluntary chains or co-operative groups are doing business in the same way, the Act under review undertakes to impose excessive burdens of State license taxes upon complainants and other chain store operators similarly situated, while not placing the same corresponding burdens upon members of said voluntary chains or co-operative groups. That the legislature knew that the Independent Grocers Alliance was operating extensively in Florida before said Act was passed and also knew that complainants were also operating several drug, grocery and shoe stores in Florida and had been for some years prior to the passage of said Act.
That complainant, Paxson's Inc., was organized in 1929 under the laws of the State of Florida, with a capital stock of $40,000.00, its stockholders and officers being residents of this State. That it owns and operates eight retail shoe stores, one in Georgia and seven in Florida, and conducts the business in its several stores in the same manner as other shoe stores are conducted in said several localities, attempting however, to give customers better service and better values for their money, which are mere matters of competitive merchandising equally available to all other shoe merchants, whether owning only one store or many stores. That it carries comparatively the same stock of goods in each of its stores and does not own or maintain any warehouses, but buys its goods direct from the factories situated in different parts of the United States from which factories shipments are made direct to each individual store. That it buys shoes on substantially the same terms as other shoe merchants doing business in different parts of the State, whether operating single stores or many stores. That in Jacksonville, where one of the stores is located, there are shoe businesses operated in more than one location, but in no other county, and that in Cohen's department store in Jacksonville there are several departments for different grades of shoes, combined stocks of *Page 645
which are greater in value than the combined value of all the stocks of complainants in its seven Florida shoe stores. That nevertheless, said large department store, including several shoe departments, will be assessed under the Act with an arbitrary license fee of only $5.00, whereas this complainant will be assessed with an arbitrary State license fee in the sum of $13.60 on each of the said shoe stores, in addition to which complainant will be required to pay $3.00 per thousand license tax on the value of its merchandise carried in its several stores plus a County license of 25 per cent. of the State tax and plus a municipal license tax of another 25 per cent. of the State tax.
That there are several other singly owned shoe stores in the City of Jacksonville which each carry a larger stock and do a larger business than complainant in all of its three stores located in said City, yet said large single shoe stores are chargeable with annual State license fees of only $5.00 each as compared with an annual State license fee against each of complainant's stores of $13.60. The bill refers to the differences between chain stores and independently owned units catalogued by the majority opinion of the Supreme Court of the United States in the case of State Board of Tax Commissioners of Indiana v. Jackson, 283 U.S. 527 , 75 L.Ed., 1248 , decided May 18, 1931, and alleges that regardless of what may or may not have been the then conditions of merchandising and methods used by chain store operators in the State of Indiana, such conditions and such differences do not prevail in Florida. Each one of the differences set forth in the majority opinion in the cited case is taken up in detail by the bill and facts alleged with reference to each, tending to show that such differences do not exist in this State.
The bill also alleges that the defendant, Hon Ernest Amos, Comptroller is undertaking to administer said Chapter 15624 in a manner so as to create sundry exemptions and exceptions as to the merchants to whom it shall be applied; *Page 646
that the comptroller holds that wholesale grocery concerns are not covered by the new Act but continue subject to Section 1197 C. G. L. paying only $1.50 per thousand on its merchandise carried instead of $3.00 per thousand as is charged to complainant Winn Lovett Grocery Co. upon merchandise carried in its warehouses, pursuant to the new Act; that the comptroller construes said Chapter 15624 to be inapplicable to furniture dealers, regardless of whether they operate one retail store or many retail stores, on account of the fact that Section 1149 C. G. L. provides a special graduated license tax upon furniture dealers dependent upon capital stock invested in such business. That in like manner the comptroller and the several tax collectors of the State acting upon his instructions, with the advice of the Attorney General, undertake to exempt from the provisions of said new Act, not only filling stations engaged exclusively in selling petroleum products, but also to exempt filling stations selling those products plus tires and tubes, holding that Section 1061 C. G. L. provides a graduated tax for tire and tube dealers depending upon the population of the town or city where located. That an exemption is also made in behalf of automobile dealers, whether second-hand or otherwise, because Section 1056 C. G. L. provides a graduated tax upon merchandise of that kind. That in like manner the comptroller is undertaking to exempt merchants dealing in cigars and tobacco who are taxed by Section 1120 C. G. L. Similar allegations are made with reference to hay, feed and grain dealers; restaurants and cafes, etc. That Chapter 15624 carries its own definition as to who shall be subject to the license taxes sought to be imposed thereby and repeals all laws and parts of laws in conflict therewith, and that if said Act is valid, the said exemptions sought to be allowed are unauthorized and would operate to deprive complainants of the equal protection of the law. *Page 647
The bill also alleges that the Act operates to place an undue burden upon the interstate commerce business of complainants.
It is further alleged that the complainants have tendered and offered to pay the taxes lawfully assessable against them under the law existing prior to the passage of Chapter 15624 but that the tax collectors, acting under the advice of the comptroller declined to accept the same, and threatened to cause the complainants and their store managers to be prosecuted for doing business without license and to impose the 25% penalty provided in Section 4 of said Act. Wherefore, complainants pray that the court issue its writ of injunction restraining the defendants from attempting to enforce said Act of 1931 and from interfering with lawful procurement by complainants of the proper licenses under the prior law, until further order of this court, and that on final hearing such injunction may be made permanent.
The defendants filed a motion to dismiss the amended bill, which motion stated that Chap. 15624 was duly enacted; does not deny complainants equal protection of the laws; that the classification of stores made for taxation purposes by the Act is reasonable and operates equally and uniformly on all stores similarly situated. That the legislature has unlimited power and discretion in the matter of levying excise taxes, except that such taxes shall be geographically equal and uniform, and that the taxes imposed by the Act are geographically equal and uniform, and do not violate any provisions of either the State or Federal Constitutions. The Circuit Court rendered an order, after argument of the motion, denying the application for injunction and granting the motion to dismiss the bill, from which order this appeal was taken.