City of Jacksonville v. Oldham

• Decision Date: 28 October 1933
• Citation: 112 Fla. 502,150 So. 619
• Parties: CITY OF JACKSONVILLE et al. v. OLDHAM.
• Court: Florida Supreme Court

150 So. 619

112 Fla. 502

CITY OF JACKSONVILLE et al. v. OLDHAM.

Florida Supreme Court, Division B.

October 28, 1933

Suit by Alice Oldham against the City of Jacksonville and others to enjoin the holding of a special election to determine whether the city shall be authorized to assess, levy, and collect a tax for advertising purposes. From an order granting an injunction, defendants appeal.

Reversed.

ELLIS J., dissenting. Appeal from Circuit Court Duval County; G. C. Gibbs, Judge.

COUNSEL

A Miller and E. Safay, both of Jacksonville, for appellants.

Wm. J De Hoff, of Jacksonville, for appellee.

J. W. Watson, Jr., of Miami, amicus curiae.

OPINION

WHITFIELD, Presiding Justice.

The Constitution provides that 'No tax shall be levied except in pursuance of law.' Section 3, article 9. 'The Legislature shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes.' Section 5, article 9.

'The Legislature shall have power to establish, and to abolish, municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time.' Section 8, art. 8.

Sections 1 and 5, chapter 15263, Sp. Acts of 1931, provide:

'That the City of Jacksonville is hereby authorized to assess, levy and collect annually, in the manner provided by law, on all taxable property therein, a special tax not to exceed one-half of one mill on the dollar of the assessed value of said taxable property for the purpose of providing a fund for the advertising of the said City.

'All laws and parts of laws in conflict herewith are to the extent of such conflict hereby repealed; and this Act shall take effect immediately upon its passage and approval by the Governor and the approval by a majority vote of the qualified electors of the City of Jacksonville who are freeholders voting for or against approval in any general municipal election or special election.'

The act was approved by the Governor June 3, 1931.

At the suit of a citizen taxpayer, the circuit court held 'that the assessment and imposition of a tax for the purpose of providing a fund for the advertising of the city of Jacksonville is not a municipal purpose within the meaning of the Constitution,' and that chapter 15263, Acts of 1931 'is unconstitutional and void.'

The court enjoined the holding of an election to approve the Act.

As the Constitution does not define or amplify the term 'municipal purposes,' duly enacted statutes may determine what is a municipal purpose; and the courts are not authorized to render such determination ineffectual, unless it clearly appears that the legislative determination violates some provision of organic law, or unless the particular enactment can have no legal or practical relation whatever to any municipal purpose. See Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716; City of Tampa v. Prince, 63 Fla. 387, 58 So. 542; Jordan v. Duval County, 68 Fla. 48, 66 So. 298; City of Bradentown v. State et al., 88 Fla. 381, 102 So. 556, 36 A. L. R. 1297; Bd. of Com'rs of Escambia County v. Bd. of Pilot Com'rs of Port of Pensacola, 52 Fla. 197, 42 So. 697, 120 Am. St. Rep. 196; Earle v. Dade County, 92 Fla. 432, 109 So. 331; West et al. v. Town of Lake Placid, 97 Fla. 127, 120 So. 361.

The statute expressly authorizes the city of Jacksonville to levy and collect annually on all taxable property therein 'a special tax not to exceed one-half of one mill on the dollar of the assessed value of said taxable property for the purpose of providing a fund for the advertising of the said City.'

As the Constitution does not define 'municipal purposes' and does not expressly or by implication forbid such a tax levy as the statute authorizes for the stated purpose; and as proper and effective advertising of the resources, attractions, and advantages afforded by the city to attract prospective settlers and investors to the city cannot fairly be said to have no legal or practical relation whatever to a proper municipal purpose, the determination by the Legislature in enacting the statute that the authorized tax levy is for a municipal purpose should not be rendered inoperative by the courts, particularly in view of the broad authority that is expressly conferred upon the Legislature with reference to conferring powers upon municipalities by section 8, article 8, of the Constitution. The administration of the tax fund is subject to applicable provisions and rules of law.

Reversed.

DAVIS, C.J., and TERRELL, BROWN, and BUFORD, JJ., concur.

ELLIS J., dissents.

CONCURRING

DAVIS, Chief Justice (concurring).

The principal question presented by this appeal is whether or not the imposition, with legislative authority, of a municipal advertising tax is, or is not, constitutional; to hold it unconstitutional, it would have to be decided by this court that such a tax is not for a public purpose, although the Legislature of the state, in providing for it, has said that it is.

In this respect, the present case differs from the earlier case of Loeb v. City of Jacksonville, 101 Fla. 429, 134 So. 205, 79 A. L. R. 459, where, in an opinion prepared by Mr. Justice Ellis, this court held the imposition of an advertising tax, without express legislative authority therefor, not unconstitutional, but simply invalid as the exercise of a municipal power not conferred upon the municipality by the Legislature. ^[1]

The law from time immemorial has recognized the value of advertisements to advertisers, because it has always allowed substantial damages for breach of a contract to insert advertisements; damages for the breach being claimed for the loss of business alleged to have been occasioned by the failure to publish the advertisements contracted for. In constructive service of process, the courts in hundreds of cases depend for their jurisdiction upon the efficacy of advertising giving notice to the world of the pendency of the litigation and thereby affording the constitutionally required due process of law. In fact it is recorded in history that traders made themselves known and called attention to their products by mural inscriptions of the walls of public buildings long before the age of printing, and it is a historical fact that a papyrus discovered at Thebes reputed to be 3,000 years old contained an advertisement offering a reward for a runaway slave.

Economic justification for advertising at public expense for public purposes is likewise found in the earliest pages of history. The most noteworthy historical example of publicly planned and accomplished economic advertising of the industry of a city is disclosed by the sending of state agents from the ancient city of Tyre to imperial Rome to induce Cleopatra to advertise manufactured Tyrian silks by appearing at a great Roman banquet arrayed in thin spun and clinging silken garments, made by the skillful Tyrians, and wondrously colored with the noted Tyrian purple, then a new luxury. The impression made by this ingenious bit of public advertising brought about by the commercial foresight of the silk artisans of Tyre, was so indelibly stamped upon those who were privileged to view the spectacle presented by the beauteous Cleopatra that the reputation of the famous Tyrian silks and the famous Tyrian purple was not only spread throughout the length and breadth of Rome in contemporary time, but has become a matter of ineradicable historical significance. And as a result of such advertising the ancient Phoenician city of Tyre seethed with commerce for many years resulting from its manufacture of silk and silken garments and its constant advertising of them to the world.

In England, the fact that advertising at public expense is generally regarded as being for a public purpose, and therefore entirely valid and proper to be paid for by public funds raised by taxation, has been recognized in the 'Health Resorts and Watering Places Act' passed in 1921. While the act is a comparatively recent one, it is simply declaratory and regulatory of a legal policy long acknowledged to exist in that country with respect to the subject of public advertising done by public agencies on behalf of all of the people for a commercial purpose. Even in this country, the United States government is now busily engaged in putting over its NRA program through resorting to the greatest program of radio, news reel, billboard, newspaper, magazine, and periodical advertising ever attempted on a national scale as a means of overthrowing the baneful effects of a worldwide depression as it affects this nation, and during the World War the same public policy was followed and remained unchallenged.

With all of these facts before us, of which we must take judicial notice, since the courts are assumed to knew what everybody knows as a matter of common knowledge, it seems clear that a tax for advertising purposes by a municipality, when expressly authorized by the Legislature, is plainly for a public purpose. Being so, the courts have no right to shut their eyes to historical and contemporaneous facts which support that conception of it.

No doubt abuses in the expenditure of advertising funds raised by taxation have occurred through the expenditure of such funds for purposes pretended to advertise for the common benefit of all, but which in their critical analysis are merely promotive of some private object. The remedy for abuses in expenditures, however, is to restrain the abuse of disbursement, not to cut off by injunction the right to raise the money to be spent which can be, and should be, spent only for legitimate advertising purposes, with its expenditure kept always under public...