Canova v. Williams

• Decision Date: 13 December 1899
• Citation: 41 Fla. 509,27 So. 30
• Parties: CANOVA v. WILLIAMS, Marshal.
• Court: Florida Supreme Court

27 So. 30

41 Fla. 509

CANOVA v. WILLIAMS, Marshal.

Florida Supreme Court

December 13, 1899

Error to circuit court, Duval county; Rhydon M. Call, Judge.

Action by J. J. Canova for a writ of habeas corpus directed to David A. Williams, marshal of the city of Jacksonville. From an order remanding petitioner to custody, he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where all the provisions of a city ordinance are connected in subject-matter, depending upon each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed that the legislative power of the city would have passed the one without the other, and some of the provisions are beyond the power of the city to enact, the whole ordinance will be declared void; but where some parts of the ordinance are within the power of the city to enact, and are not connected with or dependent upon the invalid portions, the ordinance may be void in part and valid as to the residue.

2. The city of Jacksonville is not required by its charter to levy its license taxes by annual ordinance, but has power to enact a general ordinance of this character, to remain in force until repealed in some manner provided for by law.

3. The city of Jacksonville has power, under its special charter and the general revenue law of 1895, to tax any business profession, or occupation engaged in or carried on within the city, whether such business, profession, or occupation be taxed by the state or not, and power to fix the amounts to be charged therefor for purposes of revenue, and is not limited to 50 per cent. of the state tax upon those businesses professions, or occupations taxed by the state.

4. The city of Jacksonville has no power to segregate the several elements of right that accrue to the citizen under one taxable privilege as recognized, defined, and declared by the general statute law of the state, and to tax each of such elements as a separate and distinct privilege of its own creation, by dividing several privileges into many, and requiring separate licenses to sell special articles which necessarily belong to one state privilege, and which the state permits to be sold under one license.

5. Under section 5, art. 9, Const. 1885, the legislature may delegate to cities and towns the right to select the occupations upon which they shall impose license taxes for municipal purposes, and the right to fix the amounts of license taxes to be imposed by them.

COUNSEL W. B. Young, for plaintiff in error.

J. M Barrs, for defendant in error.

OPINION

CARTER J.

On November 20, 1899, upon the petition of plaintiff in error, a writ of habeas corpus was issued by the circuit court of Duval county, directed to defendant in error, commanding him to produce the body of the petitioner, and to certify the cause of his detention. Such proceedings were thereupon had that on the same day the court entered judgment overruling a demurrer to the return of defendant in error, denying petitioner's motion to be discharged, and remanding him to custody. A writ of error to this court was granted for the purpose of reviewing this judgment.

From the pleadings it appears that petitioner is in custody by virtue of a warrant issued by the judge of the municipal court of the city of Jacksonville upon a charge supported by affidavit, that petitioner, on November 16, 1899, in said city, 'did engage in business as a dealer in spirituous, vinous, and malt liquors without having first obtained from the city of Jacksonville a license therefor, contrary to' a certain ordinance of the city. Copies of the affidavit, warrant, and ordinance are made parts of the return. The demurrer to the return questions the validity of the ordinance upon certain specified grounds hereinafter more specifically referred to.

The assignments of error are to the effect that the court erred in overruling the demurrer, in not discharging petitioner upon the return, and in remanding him to custody.

The first section of the ordinance provides that from and after October 1, 1899, every person, firm, corporation, or association engaged in or managing any business, profession, or occupation, and having a fixed place of business in the city, or required to have a city license, shall, on or before October 1, 1899, and annually thereafter, and always before engaging in any business, profession, or occupation, register in a book to be kept for that purpose by the city recorder their names, professions, or occupations, and their places of business, and that no person, firm, corporation, or association shall engage in or manage any such business, profession, or occupation until after having been so registered in the office of the city recorder.

The second section provides that from and after the 1st day of October, 1899, no person shall engage in or manage the business, profession, occupation, or occupations thereinafter mentioned, and required to be licensed by the city, without first having paid the amount of license tax required therefore to the city treasurer for the use of the city, and obtained a city license therefor; and that the license shall be made out by the recorder on production of the treasurer's receipt for the amount, which receipt shall be countersigned by the comptroller.

Section 4 provides that 'no person, firm, corporation, or association shall engage in or manage any business, profession, or occupation in this section mentioned without first obtaining from the city a license therefor, and the assessments of such taxes are hereby fixed as follows.' Here follows quite an extensive list of professions, occupations, and businesses, arranged alphabetically, with the amount of license tax imposed thereon, among which is the following: 'Liquors, dealers in spirituous, vinous, or malt liquors for each place of business, $275.'

The fifth section provides 'that any person violating any provision of this ordinance shall, upon conviction, be punished by a fine not exceeding $500, or imprisoned not exceeding ninety days.'

1. It is urged that the city's charter confers no power upon it to require the registration provided for in section 1 of the ordinance, and that, as the entire ordinance is designed as a complete system of raising revenue by taxing all, or nearly all, of the occupations engaged in within the city, if any part is invalid, the whole must fall with it. In City of Jacksonville v. Ledwith, 26 Fla. 163, text 212, 7 So. 885, 9 L. R. A. 69, it is said that, if all the provisions of an ordinance are connected is subject-matter depending upon each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed that the legislative power of the city would have passed the one without the other, the whole ordinance will be declared void. On the other hand, where some parts are not connected with or dependent upon others,--as where the ordinance attempts to accomplish two or more independent objects,--it may be void in part and valid as to the residue. If its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portions. If the valid and the void parts 'are so mutually connected with and dependent on each other as conditions, considerations, or compensations for each other as to warrant the belief that the city legislative power intended them as a whole, and, if all could not be carried into effect, it would not pass the residue independently, then, if some parts are beyond the power to enact, all the provisions which are thus dependent, conditional, of connected must fall with them.' Plaintiff in error is not charged with a violation of this section of the ordinance, but with a violation of a subsequent section. It is not necessary for us to decide whether the city had power to enact the first section, for, admitting that it had not that power, the invalidity of that section would not, under the rule stated in the Ledwith Case, supra, affect the validity of the remainder of the ordinance.

2. It is also urged that the city has no power to enact a license tax ordinance to remain in force until repealed, but that it must each year pass a new ordinance upon the subject, levying a specific occupational tax for that year. In several sections of the charter such expressions as the 'annual levy of taxes,' or the levy for the 'current' or 'ensuing year,' and 'levy in any year,' are used, but the connection in which these expressions are used shows that they relate to taxes upon property, and not license taxes, and we have not been referred to any provision of law which, either expressly or by implication, forbids the passage of an ordinance levying license taxes to remain in force until repealed in some manner provided for by law. If the city has power to pass an ordinance, and there is nothing in the nature of the subject-matter or charter act, or the ordinance itself, which limits the operation of the ordinance to a definite period, it necessarily remains in force until repealed by the same power that enacted it, or superseded by some superior authority.

3. It is further insisted that this ordinance imposes taxes upon occupations not taxed as well as upon others taxed by the state; that the city has no power to impose the one, and in imposing the other the amounts of its license taxes must not exceed 50 per cent. of the state tax. If this latter contention is correct, then the tax imposed upon dealers in spirituous, vinous, and malt liquors is invalid, because it exceeds 50 per cent. of the state tax upon the same privilege. To determine these questions it will be...