Armstrong v. City of Tampa

• Decision Date: 14 November 1958
• Parties: Helen ARMSTRONG, Mary W. McKenzie, Clara Einhorn, Nancy Stroup and Jimmie C. Rozier, Appellants, v. CITY OF TAMPA, Florida, a municipal corporation, and John D. Latture, as Chiefof Police of said City, Appellees.
• Court: Florida Supreme Court

Page 407

106 So.2d 407

Helen ARMSTRONG, Mary W. McKenzie, Clara Einhorn, Nancy Stroup and Jimmie C. Rozier, Appellants, v. CITY OF TAMPA, Florida, a municipal corporation, and John D. Latture, as Chiefof Police of said City, Appellees.

Supreme Court of Florida.

Nov. 14, 1958.

Mabry, Reaves, Carlton, Fields & Ward and J. A. McClain, Jr., Tampa, for appellants.

Ralph A. Marsicano, Neil C. McMullen, William R. McCown and James M. McEwen, Tampa, for appellees.

THORNAL, Justice.

The appellants who were plaintiffs below seek reversal of a final decree sustaining the validity of a city occupational license tax ordinance.

Numerous grounds for reversal are cited. However, we are confronted by a jurisdictional problem which precludes any exploration into the merits of the controversy.

The appellant Armstrong is a salaried employee of Avon Products, Inc., a New York corporation engaged in the manufacture and sale of cosmetics. Mrs. Armstrong resides in Tampa. Her function is to select and train district managers for Avon. The other appellants reside either in Tampa or some other place in Hillsborough County. They engage in the solicitation of orders for Avon Products, Inc. The City of Tampa, pursuant to ordinance, undertook to collect from the appellants a flat sum license tax and a sliding scale tax based upon gross sales. The appellants sought an injunction against enforcement of the ordinance. The contended by their complaint that, as applied to them, the taxing ordinance would be violative of Article I, Section 8, and Article IV, Section 2, of the Constitution of the United States, Section 1 of the Fourteenth Amendment to the Constitution of the United States, and Section 1 of the Declaration of Rights of Florida, F.S.A. By the final decree the Chancellor concluded that the activities of the appellants constituted 'a separable intrastate incident' which would legitimately subject them to the payment of the occupational license taxes. The ordinance was held valid and the complaint was dismissed. Reversal of this decree is now sought.

The notice of appeal was filed May 21, 1958. Our preliminary examination of the record suggested a lack of jurisdiction in this court under Article V, Section 4, Florida Constitution. The parties were requested to file briefs and orally argue the jurisdictional aspects of the matter preliminary to their discussion of the merits. This they have done.

We are compelled to conclude that the record on appeal reveals that it should be considered by the appropriate district court of appeal rather than this court. Since July 1, 1957, when Amended Article V of the Florida Constitution became effective, we have been confronted on numerous occasions with the problem of determining the existence of jurisdiction is view of the limits within which our jurisdiction has been confined by the cited constitutional provision. We continue to proceed through this period of transition with the realization that often times the problem cannot easily be resolved by the members of the Bar who bring the cases to us. Our consideration of these problems is also influenced by the proposition that we should cautiously avoid encroachment upon the jurisdiction of the several courts of appeal. This is prompted by the fact that those courts are in most instances appellate courts of last resort. If we and the Bar fail to take full cognizance of this proposition we run the risk of converting the courts of appeal into mere intermediate steps in the appellate process. This in turn would have the effect of completely destroying the significant improvements in the administration of justice implicit in Amended Article V, supra. Only by scrupulously observing the proper limits of our jurisdiction can we bring about the more effective and expeditious consideration of cases at the appellate level which was a prime objective of Amended Article V.

Appellants ask us to take jurisdiction under that portion of Section 4, Article V, supra, authorizing direct appeals to this court as a matter of right from 'decrees directly passing upon the validity of a state statute * * * or construing a controlling provision of the Florida or federal constitution * * *.' We are referred to the fact that the decree under assault passed directly upon the validity of a municipal ordinance. We are then requested to hold that for purposes of determining our appellate jurisdiction a municipal ordinance is comprehended within the expression 'a state statute'. As an alternative support for their position, the appellants further suggest that our jurisdiction is sustained by the proposition that in their view the Chancellor entered a decree 'construing a controlling provision of the Florida or federal constitution'.

We consider first the contention that 'a state statute' as used in the Constitution should be considered as comprehending a municipal ordinance for the purpose of determining jurisdiction in this court. We are compelled to hold that we are not privileged to extend to the constitutional language so broad an interpretation. In the first place the Constitution is explicit in its reference to 'a state statute'. We have the view that it was intended by this language to provide a forum at the highest appellate level within which the validity of enactments by the State Legislature could be promptly and finally determined. Admittedly for some purposes in the Federal court system municipal ordinances are considered within the category of state statutes in determining Federal jurisdiction. However, we think it clear from an examination of our own cases as well as the decisions of other state courts, and in numerous instances many of the Federal courts, a municipal ordinance is not comprehended within the definition of a state statute. For example, in Washington v. Dowling, 92 Fla. 601, 109 So. 588, 591, this court held that "A statute is an act of the Legislature as an organized body * * *." In City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307, we held that municipal ordinances while effective as legislation within the municipal limits, nevertheless do not enjoy the governmental dignity of legislative enactments. Similarly, other courts have denied to municipal ordinances the dignity implicit in a state statute. Werner v. Pioneer Cooperage Co., Mo.App., 155 S.W.2d 319; McKnett v. St. Louis & S. F. R. Co., 227 Ala. 349, 149 So. 822; Cumberland Tel. & Tel. Co. v. City of Memphis, D.C., 198 F. 955.

We therefore hold that a municipal ordinance is not included in the expression 'a state statute' as sued in our constitutional provision authorizing direct appeals to this court.

We come now to the laternative contention of the appellants that the final decree construed 'a controlling provision of the Florida or federal constitution'. The problem presented by this suggestion is not without difficulty. Our study of the decisions of courts of other states operating under very similar constitutional provisions leads us to the conclusion that in order to sustain the jurisdiction of this court under the quoted provision it is necessary that the final decree under assault actually construe, as distinguished from apply, a controlling provision of the Constitution. We had occasion to consider the matter in Milligan v. Wilson, Fla.1958, 104 So.2d 35; and in Carmazi v. Board of County Commissioners, Fla.1958, 104 So.2d 727. In the cited cases we undertook to point out that the mere fact that a constitutional provision is indirectly involved in the ultimate judgment of the trial court does not in and of itself convey jurisdiction by direct appeal to this court. We agree with those courts which hold that in order to sustain the jurisdiction of this court there must be an actual construction of the constitutional provision....