American Bakeries Co. v. Haines City

• Decision Date: 16 March 1938
• Citation: 131 Fla. 790,180 So. 524
• Parties: AMERICAN BAKERIES CO. et al. v. HAINES CITY et al.
• Court: Florida Supreme Court

180 So. 524

131 Fla. 790

AMERICAN BAKERIES CO. et al. v. HAINES CITY et al.

Florida Supreme Court

March 16, 1938

Rehearing Denied April 28, 1938.

En Banc.

Suit by the American Bakeries Company and another against the city of Haines City and others to enjoin enforcement of an ordinance imposing occupational license taxes so far as affecting plaintiffs' business. From a decree dismissing the bill of complaint and denying an injunction, plaintiffs appeal.

Reversed and remanded.

CHAPMAN J., dissenting in part.

On Petition for Rehearing. Appeal from Circuit Court, Polk County; H. C Petteway, judge.

COUNSEL

J Velma Keen and A. Frank O'Kelley, Jr., both of Tallahassee, for appellants.

Maxwell & Cobbey, of Tampa, and Gordon C. Huie, of Haines City, for appellees.

OPINION

BROWN Justice.

This case involves the question of whether a power to impose certain licenses contained in a municipal legislative charter was repealed, superseded, or suspended, by a provision contained in a later general act.

This general question has often proved difficult of solution in this jurisdiction. Its consideration has been somewhat complicated by section 24, article 3 of the Constitution, which provides that:

'The Legislature shall establish a uniform system of county and municipal government, which shall be applicable, except in cases where local or special laws are provided by the legislature that may be inconsistent therewith.'

This section was amended at the general election in 1934 so as to read as follows:

'The Legislature shall establish an uniform system of county and municipal government, which shall be applicable, except in cases where local or special laws for counties are provided by the Legislature that may be inconsistent therewith. The Legislature shall by general law classify cities and towns according to population, and shall by general law provide for their incorporation, government, jurisdiction, powers, duties and privileges under such classifications, and no special or local laws incorporating cities or towns, providing for their government, jurisdiction, powers, duties and privileges shall be passed by the Legislature.' (Italics supplied.)

It will be observed that the amendment of 1934 appears to contemplate that general laws relating to the government of counties and municipalities shall be applicable, 'except in cases where local or special laws for counties are provided by the Legislature that may be inconsistent therewith.' The words 'for counties' were inserted by the amendment of 1934, which would seem to so limit the clause as to indicate that uniform laws for the government of municipalities should be applicable in spite of the fact that there might be local or special laws relating to municipalities inconsistent therewith. However, the amendment of 1934 has little, if any, application to the question before us here, which we think is governed by general principles of construction. Furthermore, we have held that this amendment to section 24, article 3, adopted in 1934, in so far as it affects special or local laws relating to the government of cities and towns, is not self-executing and cannot become operative until the Legislature has seen fit to pass the general system of laws for the classification and government of cities and towns so commanded by the amendment. See State v. Alsop, 120 Fla. 628, 163 So. 80; State v. Jones, 121 Fla. 216, 163 So. 590; State v. Emerson, 126 Fla. 576, 171 So. 663.

In this case the American Bakeries Company and Seybold Baking Company, both Georgia corporations, filed a bill against the city of Haines City, Fla., to enjoin the enforcement of Ordinance No. 160, in so far as it affected the business of the plaintiffs. The bill alleged that the American Bakeries Company owns and operates a bakery in Orlando, Fla., and Seybold Bakery Company owns and operates a bakery in Lakeland, Fla., and that each of them takes orders for and makes sales and deliveries of bakery products in a large number of cities in the state of Florida, including Haines City; that the bakery products sold at wholesale by plaintiffs in the city of Haines City are manufactured in their respective bakeries in Orlando and Lakeland, and are delivered by trucks owned and operated by complainants to a large number of retail business houses in the city of Haines City; that the methods of taking the orders and making deliveries to stores in Haines City is, in some instances, that certain orders are taken by the operators of the trucks from certain business houses, and such orders are filled by being delivered by the operators of the trucks on a subsequent day or days, and, in other instances, that the orders taken are filled and delivery made from goods and products at that time loaded on the trucks, thus making immediate delivery thereof.

The bill further alleges that Ordinance No. 160, which became effective August 4, 1934, requires plaintiffs to procure occupational licenses before they may be permitted to carry on the business above referred to in Haines City; that plaintiff had been paying such licenses up to September 30, 1937, but that Ordinance No. 160, in so far as it affects plaintiff's business, is in conflict with chapter 18011, Acts 1937, and especially section 5 thereof, and that said ordinance is therefore void and inoperative in so far as it affects the plaintiffs. A copy of the ordinance is attached to the bill.

The defendant city and its officers interposed a motion to dismiss the bill of complaint upon various grounds, and the court sustained the motion to dismiss and denied the injunction prayed for. In connection with this ruling the chancellor below rendered a well-considered opinion in which, among other things, it was stated that it was admitted that the ordinance does not attempt to impose a license on that part of the business done by the trucks of plaintiffs which is done by taking orders and subsequently bringing the products into Haines City and delivering same, but that it only applies to that portion of the business done by plaintiffs in said city where the trucks, having the bakery products on them, and at the places of business of various prospective customers, take orders for such products and deliver same immediately from such trucks.

The legislative charter of Haines Ctiy, chapter 12790, Sp.Acts 1927, in section 115 thereof, authorizes the City Commission to impose license taxes, for the purpose of regulation or revenue, upon numerous occupations, businesses, and privileges conducted within the city. Ordinance No. 160, adopted under this general power, requires a wholesale merchant, 'including ambulatory,' selling to the retail merchant direct from stock, to take out a license of $25 annually for each place of business, and provides that 'each and every vehicle, truck, R. R. Car, or stand, shall be construed as a separate place of business.'

Appellants contend that chapter 18011 of the Acts of 1937 is a general state law which imposes state and county license taxes upon a broad field of businesses and professions, and authorizes the city in which the businesses are located to impose additional license taxes, except when otherwise provided by the act or other law, and that the effect of said act, and especially of section 5 thereof, was and is to repeal or supersede that part of the city ordinance above referred to by which Haines City attempted to impose a license tax upon the business of plaintiffs above set forth. Said section 5, of chapter 18011, reads in part as follows:

'Section 5. Every person engaged in the business of trading, buying, bartering, serving, or selling tangible personal property as owner, agent, broker, or otherwise, shall pay a license tax of $25.00 (which shall entitle him to maintain one place of business, stationary or movable) and shall pay $25.00 for each additional place of business, provided that the said twenty-five dollar license tax shall not be required for any place of business licensed under the provisions of Chapter 16848, Laws of Florida, Acts of 1935. Wholesalers and others who do not pay a license tax calculated wholly or in part on gross receipts from their sales and who keep a stock of merchandise for sale shall pay an additional tax of $1.50 for each thousand dollars of their stock of merchandise (other than petroleum products). Vehicles used by any person for the sale and delivery of tangible personal property at wholesale from his established place of business on which a license is paid, shall not be construed to be separate places of business and no license may be levied on such vehicles or the operator thereof as salesmen or otherwise, by the State or any County or Municipality, any other law to the contrary notwithstanding. (Italics supplied.)

It will be observed that section 5 of said act imposes a state and county license tax of $25 upon all persons engaged in the business of selling tangible personal property at retail or wholesale, 'which shall entitle him to maintain one place of business, stationary or movable,' and 'shall pay $25.00 for each additional place of business,' but adds that: 'Vehicles used by any person for the sale and delivery of tangible personal property at wholesale from his established place of business on which a license is paid, shall not be construed to be separate places of business and no license may be levied on such vehicles or the operator thereof as salesmen or otherwise, by the State or any County or Municipality, any other law to the contrary notwithstanding.'

Section 2 of said general statute provides for a county license tax of 50 per cent. of the state license tax, and then adds 'Provided that incorporated cities and towns may impose such further license...