City of Jacksonville v. Ledwith

• Decision Date: 14 August 1890
• Parties: CITY OF JACKSONVILLE et al. v. LEDWITH.
• Court: Florida Supreme Court

7 So. 885

26 Fla. 163

CITY OF JACKSONVILLE et al. v. LEDWITH.

Florida Supreme Court

August 14, 1890

Appeal from circuit court, Duval county; JAMES M. BAKER, Judge.

Syllabus by the Court

SYLLABUS

1. A market, within the meaning of that provision of the Jacksonville municipality act, (chapter 3775, St. 1887,) authorizing the mayor and city council to establish and regulate markets, is a place to which the public may resort for selling and buying certain articles; and where the articles are exposed for sale in stalls or space provided for such purpose, and for the use of which stalls or space toll may be charged; and for whose government reasonable regulations, having in view the preservation of peace and good order and the health of the community, may be prescribed.

2. In the United States, the authority to establish and regulate markets falls within the police power of the states, and the right to exercise such authority may be conferred by a state upon municipal corporations; and it is competent for these corporations, if the authority delegated is sufficient, to prohibit the sale of such articles as are within the exercise of the police power, and usually sold at markets elsewhere than at a duly-established market.

3. The question whether or not a grant to a municipal corporation of power to establish and regulate markets implies authority to prohibit the sale of articles falling within the power, and vendible at a market elsewhere than at a duly-extablished market, not decided, but referred to, and authorities cited.

4. A grant to a municipal corporation of power to regulate by ordinance the vending of meatpoultry, fish, fruits, and vegetables, gives authority to prescribe by ordinance the times and places of their sale, and to prohibit the sale of them elsewhere. The restrictions as to such times and places must however be reasonable, with reference to the welfare of the community, and not be in general restraint of trade. Under this grant sales may be restricted, under the same limitations, to markets duly established under a grant of power to establish and regulate markets.

5. The authority of a municipal government to establish and regulate markets implies power to purchase or provide a site, erect necessary buildings and stalls, and when they are provided either by a lease, purchase, or other lawful mode, to adopt reasonable regulations for the government of the market, and the business transacted there.

6. Where a municipal corporation constructs or rents a building its principal object being to provide a market-house, an appropriation of a portion of the building for another purpose, as the holding of municipal courts, does not render the erection or renting of the building illegal.

7. If reasonable facilities for selling at markets are given regulations, restricting to markets the sale of articles falling within the police power, or the sale of which the health or welfare of the community requires to be regulated do not constitute a prohibition or illegal restraint of trade or a monopoly.

8. The courts are the final judges as to what are proper subjects of the police power, and the law-making power cannot arbitrarily make that a subject of its exercise which, from its nature is not one.

9. Where the language of a statute authorizing an exercise of the police power is so broad as to include things which are not as well as those which are subjects of the power, the exercise of the power will be confined to things which are legally the subjects of that power.

10. Where the statute establishing a municipal government provides that its legislative power shall be exercised by a city council, and that no bill shall become a law until it shall be signed by the mayor, unless he shall fail to return it with his objections to the council within a prescribed time, or unless it, on being so returned, shall be passed by two-thirds of the whole number of the council, and also provides that the mayor and council shall have power to establish and regulate markets by ordinance, and to regulate the vending of meats and other specified articles in like manner, a market cannot be established, nor can it or the vending of such articles be regulated otherwise than by municipal law enacted in the manner above indicated; and an ordinance attempting to authorize the city council or a board of health, or both, to exercise either of the above powers independently, and in disregard of the above provision for the co-ordinate action of the mayor, conveys no authority in the premises. The authority cannot be delegated.

11. The word 'privileges,' as used in the act establishing the municipality of Jacksonville, where power is given to levy and collect taxes for the purpose of revenue upon 'all property and privileges taxable by law for state purposes,' and to license, tax, and regulate auctioneers retailers of liquors, and other named avocations, 'and all other privileges taxable by the state,' does not mean such things as are technically privileges, and can never be enjoyed or exercised except under authority of law, but means other occupations of the same kind as those designated. A market being a franchise or technical privilege is not taxable by the city of Jacksonville for revenue purposes.

12. The municipality of Jacksonville is not given the power which the state has of selecting the subjects of occupational taxes for raising revenue, but is limited to the occupations named in its charter act, or the revenue laws of the state.

13. The first section of article 12, c. 3775, of the Statutes, as amended by the eleventh section of the act of May 31, 1889, does not in its provision, 'privileges may be licensed and taxed by city ordinances,' designate subjects of taxation. The purpose of the section is to regulate the manner of assessing and levying taxes on real and personal property, and taxing avocations elsewhere subjected to municipal taxation.

14. Wherever the power to authorize or license a person to establish a market exists in a municipal corporation, a fee for the permit or license may be charged by the municipality as a police regulation although the power to exact a tax for revenue may not exist. A sufficient fee may be charged under the police power to cover, not only the necessary expense of issuing the license, but also that of the additional labor of officers, and other expenses imposed upon the public by the business, but no more.

15. A license to a person to sell meats or other things named in the grant to the municipality of Jacksonville of power to regulate the vending of meats, etc., is not the grant of a right to maintain a market within the meaning of the legislative grant of authority to establish and regulate markets.

16. The grant of authority to regulate the sale of meats, etc., by ordinance, is one of police power. Under it the hours, the places, and rules for conducting the business may be prescribed, and the establishment of fixed places of sale may be prohibited in localities from which their exclusion is dicted by sanitary considerations, and, as in the case of markets affording reasonable facilities for all who may desire to engage in vending such articles, the sales may be confined to particular places; yet all this must be done by impartial and general regulations affording the same rights to all alike upon the same conditions.

17. The grant of authority to regulate the vending of meats, etc., does not give power to tax for purposes of revenue the occupation of vending any of the named articles, but it, in connection with the grant of power to regulate inspection, justifies the imposition of such fees and charges as will cover the expense of both inspecting the articles offered for sale and of the police supervision of the business necessary to prevent its becoming harmful to the community.

18. The power to establish markets cannot be used to create a monopoly of the right to sell.

19. The police power cannot be parted with or impaired by contract.

20. The power of a municipal government to establish markets implies the authority to change their location as the convenience of the community may dictate.

21. Where an ordinance amending a section of a former ordinance provides that such section 'shall read as follows,' stating the provisions, the section as amended becomes for all future purposes the entire section, and anything which was in the original section, but is omitted from it as amended, is repealed.

22. Where an ordinance is passed establishing a public market, and providing that no person shall sell or offer for sale at any other place within the city limits unless he shall be expressly authorized so to do by the city council, and another ordinance, providing for the establishment of so-called 'private markets' at which the same articles may be sold, is passed on the same day, but approved by the mayor on a day subsequent to his approval of the other one, the two ordinances are to be considered as one ordinance for the purpose of ascertaining the intention of the municipal law-makers.

23. Where parts of an ordinance, or of two ordinances which are in pari materia, are so connected together or dependent upon each other that it cannot be presumed the municipal lawmaking power would have ordained the one without the other, and one or some more of the parts are void because in conflict with provisions of the charter act, all the parts so connected or dependent will be held invalid; e. g., where a public market ordinance provided that no person should sell certain articles elsewhere than at the public market, 'unless such person should be allowed to do so by the city council,' meaning by these quoted words unless he should be authorized to do so under the provisions...