128 So. 632 (Fla. 1930), Cahoon v. Smith

Citation:128 So. 632, 99 Fla. 1174
Opinion Judge:WHITFIELD, P.J.
Party Name:CAHOON, Sheriff v. SMITH.
Attorney:[99 Fla. 1176] Fred H. Davis, Atty. Gen., and T. T. Turnbull, of Tallahassee, for plaintiff in error. John E. Mathews, of Jacksonville, for defendant in error.
Case Date:May 21, 1930
Court:Supreme Court of Florida
 
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Page 632

128 So. 632 (Fla. 1930)

99 Fla. 1174

CAHOON, Sheriff

v.

SMITH.

Florida Supreme Court, Division B.

May 21, 1930

Error to Circuit Court, Duval County; De Witt T. Gray, Judge.

Habeas corpus proceedings by E. S. Smith against W. B. Cahoon, as Sheriff. From a final order discharging petitioner, defendant brings error.

Reversed.

COUNSEL

Page 633

[99 Fla. 1176] Fred H. Davis, Atty. Gen., and T. T. Turnbull, of Tallahassee, for plaintiff in error.

John E. Mathews, of Jacksonville, for defendant in error.

OPINION

WHITFIELD, P.J.

This writ of error was allowed and taken under the statute to a final order discharging the petitioner in habeas corpus proceedings. Section 5444, Compiled General Laws 1927; State v. Bethea, 61 Fla. 60, 55 So. 550; Hiers v. Mitchell, 95 Fla. 345, 116 So. 81.

It appears that E. S. Smith owned and operated two [99 Fla. 1177] motor-propelled vehicles in the business of transporting property for compensation upon the public highways between fixed termini and over regular routes, all within the state, not a common carrier but as a private carrier under special contract; that he has not made application for or received a certificate of public convenience and necessity, and has not paid to the comptroller an advance payment upon the mileage tax required by chapter 13700, Laws of Florida 1929, and that, such failure being a misdemeanor under the statute, the said E. S. Smith had been committed to the custody of the sheriff for trial, but was discharged on habeas corpus, the circuit judge holding chapter 13700 cannot be constitutionally applied to the facts of the case.

The statute entitled 'An act Providing for the Supervision and Regulation of Persons, Firms, Corporations and Associations Owning, Controlling, Operating or Managing Motor Vehicles Used in the Business of Transporting Persons or Property for Compensation Over the Public Highways of the State; Defining Auto Transportation Companies and Providing Supervision and Regulation Thereof by the Railroad Commission of the State of Florida and Providing for the Enforcement of the Provisions of This Act and for the Punishment of Violations Thereof and Imposing a Mileage Tax and Providing for the Disposition of the Revenue Raised by the Same; and Repealing All Acts Inconsistent with the Provisions of This Act,' provides that:

Page 634

'The term 'auto transportation company' when used in this Act means every corporation or person, their lessees, trustees or receivers, owning, controlling, [99 Fla. 1178] operating or managing any motor-propelled vehicle not usually operated on or over rails, used in the business of transporting persons or property for compensation or as a common carrier over any public highway in this State between fixed...

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