Atkins v. Philips

• Decision Date: 11 December 1890
• Citation: 26 Fla. 281,8 So. 429
• Parties: ATKINS v. PHILIPS, Chief of Police of the City of Jacksonville.
• Court: Florida Supreme Court

8 So. 429

26 Fla. 281

ATKINS v. PHILIPS, Chief of Police of the City of Jacksonville.

Florida Supreme Court

December 11, 1890

Error to circuit court, Duval county; W. B. YOUNG, Judge.

Syllabus by the Court

SYLLABUS

1. A charter act authorizes the mayor and council to impose, by ordinance, fines and terms of imprisonment for the breach of any ordinance, and provides a municipal court for the trial of all offenses against ordinances, the establishment of such courts for the punishment of such offenses being authorized by the constitution; and an ordinance regulating the vending of fresh meats ordins that any violation of it shall be punished by fine or imprisonment not exceeding a specified maximum. Held, (1) that the penalty prescribed is not void for uncertainty; (2) that leaving to the court the power to fix the penalty for each offending, according to its circumstances, was not unauthorized.

2. Where a municipal charter act provides that a majority of the members of the council shall be required to form a quorum for the transaction of business, and a rule of proceeding adopted by the council prescribes that a proposed ordinance may be passed on its first reading by a majority vote of the members present, and then placed on a second reading by a like vote and, if passed on its second reading, may then be read as passed as a whole on such second reading, but no ordinance shall be put on its third reading, at the same meeting at which it is read the first time, except by unanimous consent of the council, the term 'unanimous consent of the council,' means all the members who may be present at the time the action as to putting the ordinance on its third reading is taken, whether a bare quorum or more. It does not require that every member of the council shall be present and consent.

3. Where a municipal government, in the exercise of the police power, imposes a license charge on a business which, for the protection of the health of the community, requires daily inspection and supervision, the amount of the charge will be presumed to be reasonable, and not a tax for revenue, unless the contrary appears on the face of the ordinance, or is established by proper evidence. The courts will not seek to avoid an ordinance by nice calculations of the expense of enforcing police regulations, but will promptly arrest any clear abuse of the power. A monthly license fee of five dollars for vending fresh meats outside of the public market at places called 'private markets,'held, under the facts agreed upon as to the expense of regulation, not to show an abuse of the power.

COUNSEL Walker & L'Engle, for plaintiff in error.

J. M. Barrs, for defendant in error.

OPINION

RANEY C.J.

The twenty-eighth section of 'An ordinance to regulate the vending of fresh meats, dressed poultry, and fish, and to establish and regulate markets,' adopted by the city council of Jacksonville, and which was approved by the mayor August 9, 1890, provides that a violation of any of the provisions of the ordinance shall be punished by a fine not exceeding $500, or by imprisonment for a term not longer than three months, for the same offense. The fourth section of the third article of the charter act (chapter 3775, St. 1887) enacts that the mayor and city council 'shall, within the limitations of this act, have power by ordinance, * * * to impose fines, forfeitures, penalties and terms of imprisonment for the breach of any city ordinance; but no penalty shall exceed five hundred dollars, and no term of imprisonment shall be for a longer term than three months, for the same offense;' and the first section of the tenth article provides for a municipal court for the trial of all offenses against the municipal ordinances.

It is contended on behalf of plaintiff in error that the ordinance is invalid because the twenty-eighth section leaves it to the arbitrary discretion of the judge of the municipal court to assess such a fine, not exceeding $500, or imprisonment for such a term, not exceeding three months, as he may see fit, in each particular case before him. The cases of Mayor, etc., v. Yuille, 3 Ala. 137; Commissioners v. Harris, 7 Jones, (N. C.) 281; State v. Crenshaw, 94 N.C. 877; State v. Cainan, Id. 883; State v. Rice, 97 N.C. 421, 2 S.E. Rep. 180,--are relied upon to support this position. In Mayor, etc., v. Yuille the penalty as prescribed by the ordinance was 'not more than fifty dollars,' and it was held to be void for uncertainty. 'The penalty,' says the opinion, which refers to cases collected by Angell & Ames on Corporations, 200, and 1 Wilcock on Corporations, § 308, 'must be a sum certain, and cannot be left to the arbitrary assessment of the corporation court, to be determined according to the nature of the offense. It is also said that although the utmost limit of the penalty be fixed, beyond which the fine cannot extend, it does not remove the objection. The reason assigned is that it permits the corporation to be a judge in its own cause.' This decision was expressly overruled in Mayor, etc., v. Phelps, 27 Ala. 55, where it was held that a municipal by-law is not rendered void for uncertainty because the amount of the penalty imposed for its violation is left discretionary, within fixed limits, with the municipal court; and it is said in the opinion the fact that the corporation is made the judge in its own cause is no objection, since it applies whether the penalty is for a specific sum, or is fixed within certain limits. The question whether the ordinance has been violated is to be determined in either case by the corporation. The penalty being any sum 'not exceeding fifty dollars,' a reasonable discretion is given, to be exercised within certain limits. And we can see no objection which could be urged to such a by-law which could not with equal propriety be made to any law investing courts or juries with discretion in apportioning the fine to the offense; the fine being restricted within reasonable bounds.

The law as stated by Judge Dillon in his work on Municipal Corporations (4th Ed., § 341) is that such a corporation of this kind, with power to pass by-laws and affix penalties, may, if not prohibited by the charter, or if the penalty is not fixed by the charter, make it discretionary, within fixed reasonable limits; that this enables the tribunal to adjust the penalty to the circumstances of each particular case; and that the order English authorities, so far as they hold such a by-law void for uncertainty, are regarded as not sound in principle, and ought not to be followed. See State v. Cantieny, 34 Minn. 1, 24 N.W. 458.

There is in the North Carolina cases nothing that to our minds establishes the correctness of the overruled Alabama case. In the leading one of them (Commissioners v. Harris) the ordinance provided that the offender should be carried before the police magistrate, and fined 'not less than one nor more than twenty dollars;' and the supreme court held it void for 'vagueness and uncertainty.' It is said, however, in the opinion, that this method of imposing penalties commended itself as leaving the matter open until the evidence is heard, and the aggravating or mitigating circumstances are found, but that the method was impossible on account of the settled mode of procedure in that state, which mode was that the proceeding, when brought to the superior court on appeal, which appeal vacated the judgment of the police magistrate was a civil one, in the nature of an action of debt, and such action obtained only for a certain amount, which a sum 'not less than one nor more than twenty dollars' was not; and there was no power in the superior court for the judge or jury to fix the punishment. No such difficulty, it may be observed, exists with us. The proceeding before the municipal court of Jacksonville is criminal in its character, and so it is on appeal in the circuit court, and the judgment to be rendered by the latter tribunal is one of affirmance or reversal. Ex parte Peacock, 25 Fla. 478, 6 South. Rep. 473.

A decision (Melick v. Washington, 47 N. J. Law, 254 if not that of State v. Zeigler, 32 N. J. Law, 262) suggests at least more distinctly than those mentioned above the want of power in the council to leave to the magistrate the duty of fixing the penalty for each particular offender according to its circumstances, within the limits prescribed by a charter act like that in question, and holds that the council must fix the exact penalty for each case. Our opinion, following the line of Judge Dillon's views and the Alabama and Minnesota courts, is that it was not the purpose of the legislature to thus restrict the law-making power of the city. It is to our minds much more just and reasonable that the ordinance should prescribe the limits of punishment for each character of offense, and the tribunal created to try the offender should fix the punishment in each particular case according to its mitigating or aggravating circumstances, than that one penalty should be prescribed by the council for all offendings against any one ordinance. Such, as far as we have...