O'connell v. Kontojohn

• Citation: 179 So. 802,131 Fla. 783
• Parties: O'CONNELL, Chief of Police v. KONTOJOHN.
• Decision Date: 16 March 1938
• Court: Florida Supreme Court

179 So. 802

131 Fla. 783

O'CONNELL, Chief of Police v. KONTOJOHN.

Florida Supreme Court, Division B.

March 16, 1938

Habeas corpus proceeding by Pericles Kontojohn against William O'Connell, as Chief of Police of the City of Pensacola involving the validity of an ordinance for violation of which petitioner was arrested. Judgment discharging the petitioner and defendant brings error.

Affirmed. Appeal from Circuit Court, Escambia County; L L. Fabisinski, judge.

COUNSEL

Ernest E. Mason and Coe & McLane, all of Pensacola, for plaintiff in error.

Watson & Pasco & Brown, of Pensacola, for defendant in error.

OPINION

TERRELL Justice.

In January, 1937, the city of Pensacola enacted an ordinance imposing a flat license tax of $250 on each truck wagon, or other vehicle used and operated over the streets of the city by any person, firm, or corporation engaged in the business of an itinerant, wholesale baker. Bakers who owned their plant and manufactured, baked, or processed their bakery products in the city and were otherwise licensed to do business were exempt from the provisions of the ordinance.

Defendant in error, being the manager of Malbis Bakery located in Mobile, Ala., declined to comply with the ordinance, was arrested for failure to do so, and sued out a writ of habeas corpus challenging the validity of the ordinance. The return to the writ was duly filed and was predicated on failure to comply with the terms of the ordinance. Evidence was taken, arguments were heard, and the trial court discharged the petitioner on the ground that the ordinance was violative of both the State and Federal Constitutions. Writ of error was prosecuted to the judgment of discharge.

We discuss first the question of whether or not the ordinance brought in question offends against the rule of reasonableness as approved by this court and applied to municipal ordinances in Roach v. Ephren, 82 Fla. 523, 90 So. 609, and other cases.

The record discloses that when the ordinance was adopted, there were four or five wholesale bakeries doing business by means of trucks in Pensacola which consisted of soliciting and making deliveries therefrom. All but Malbis Bakery had their plants located in Pensacola, but the latter had its plant located in Mobile, Ala., and brought its bakery products to Pensacola every day by truck and solicited the trade in the same manner as the local bakeries. Two of the Pensacola bakeries used four trucks each in their daily business and the third Pensacola bakery used five trucks. The Malbis Bakery used three trucks in its business, and both the Pensacola and Mobile bakeries paid a flat license of $50 each up to the time the ordinance in question was enacted.

If Malbis Bakery continues to use three trucks, it will be required to pay a license of $250 per truck or a total of $750 under the new ordinance, while the Pensacola bakeries will be required to pay a license tax of only $50. The evidence further shows that Malbis Bakery has for the past seven years sold on an average of $42,000 to $44,000 in gross bakery products annually and that its net profit was little more than $1,000 per year; that if the ordinance is valid, the tax is prohibitive and will force it out of business; that about three-fourths of the business done by it in Pensacola consists in taking and filling orders booked on the previous day, while the other fourth consists in straight sales from its trucks.

There is no suggestion that the tax complained of is other than a tax for revenue, the question of police regulation not being involved, and there is no dispute about the essential facts. Plaintiff in error contends that the ordinance should be upheld under Hardee v. Brown, 56 Fla. 377, 47 So. 834; Park v. Morgan, 64 Fla. 414, 60 So. 347; and Freeman v. Tittsworth, 126 Fla. 483, 171 So. 307.

There were elements that entered into the decision of these cases that are not shown to exist in the case at bar and which we will not discuss. If permitted to draw our conclusion from the evidence, there is no difference in the method of transacting the business involved here and in the last-cited cases and this is the basis on which such taxes may be differentiated if upheld. It is accordingly our conclusion that the ordinance offends against the rule of reasonableness but whether so or not that is not its most serious defect.

The most serious question presented is whether or not it offends against the Declaration of Rights, State Constitution, the Fourteenth Amendment, or the commerce clause of the Federal Constitution, article 1, § 8, cl. 3.

As heretofore disclosed by the evidence, the effect of the ordinance is to impose a license tax of $250 per truck on bakeries located outside the city. Malbis Bakery is located outside the city in a foreign state. Plaintiff in error contends that the tax should be upheld on the theory that bakeries located within the city pay personal and property taxes, public utility taxes, and in sundry other ways, not affected by those located outside the city, contribute to the channels of trade and industry.

The following cases are relied on to support this contention Hamilton v. Collins, 114 Fla. 276, 154 So. 201; Whiddon v. Vickers, 127 Fla. 222, 172 So. 923; Armour & Co. v. Virginia, 246 U.S. 1, 38 S.Ct. 267, 62 L.Ed. 547; Richmond Linen Supply Co. v. City of Lynchburg, 160 Va. 644, 169 S.E. 554 (Affirmed in Re Richmond Linen Supply Co., 291 U.S. 641, 54 S.Ct. 437, 78 L.Ed. 1039); American Bakeries Co. v. City of Sumter, 173 S.C. 94, 174 S.E. 919 (Affirmed in 293 U.S. 523, 55 S.Ct. 120, 79 L.Ed. 635); American Bakeries Co. v. City of Huntsville, 232 Ala. 612, 168 So. 880; Vaughan v. City of Richmond, 165 Va. 145, 181 S.E. 372; State v. Gray, 192 Ark. 1045, 96 S.W.2d 447; Continental Baking Company v. City of Mount Vernon...