Crawford v. Bradford

• Decision Date: 30 July 1887
• Citation: 2 So. 782,23 Fla. 404
• Court: Florida Supreme Court
• Parties: CRAWFORD v. BRADFORD.

2 So. 782

23 Fla. 404

CRAWFORD v. BRADFORD.

Florida Supreme Court

July 30, 1887

Appeal from Fifth judicial circuit, Alachua county.

In equity. Bill for injunction and other relief.

We claim that this tax of 25 cents, provided for in the act of 1885, is a special tax, and that it is unequal and void. 'The legislature shall provide for a uniform and equal rate of taxation.' Const. Fla. art. 13, § 1. 'The legislature shall authorize the several counties and incorporated towns in the state to impose taxes for county and corporation purposes, and for no other purpose, and all property shall be taxed upon the principle established for state taxation. The legislature may also provide for levying a special capitation tax, and a tax on licenses.' Const. Fla. art. 13, § 6. Thus we see provision in the constitution for ad valorem, per capita, and license tax, but for no other purpose. The tax complained of is neither the one nor the other; yet it is a tax, and an onerous one. Livingston v City of Albany, 41 Ga. 21.

Counsel for appellee contend that this is not a tax, but that the collection of the money from the butcher by the sworn officer of the law, the 'market clerk,' is part of a police regulation, and they go into extended argument to show that this is a police regulation, recognized and sanctioned by the constitution. They quote Mr. Cooley to prove that police power is vested in the legislature to make laws, and establish all munner of wholesome and reasonable provisions either with or without penalties, etc. Of course, we do not think for a moment of disputing a proposition so well established as this. Undoubtedly, the law-making power had a right to provide that the hides and ears of all animals butchered and offered for sale in the public markets, should be offered for inspection, and a record kept of the same. They had a right to provide for the appointment of some proper officer to see to the enforcement of the regulation and they had a right to fix a penalty for a violation of the law. These are all legitimate police regulations, and to that extent cannot be questioned. But does this give the right to the legislature to authorize this officer to collect a daily sum of money from the man who is carrying on a legitimate business in order that this officer may be thereby paid, and the funds thus procured for maintaining and carrying out the law?

Again what can the collection of this money be called? Is it a tax, as we claim it to be? If so, it is void because it is neither ad valorem, per capita, nor license. If not a tax, then what is it? Is it forfeiture or fine or penalty? Neither of them could be imposed without due process of law. If it be either of the latter, it is void, therefore, for want of due process of law.

But they tell us it is a fee, and that it is forced from the butcher neither as tax nor fine nor penalty. 'A fee is a reward or compensation for services rendered or to be rendered,--a payment in money for official or professional services, whether the amount be optional of fixed by law or custom. Fees are distinguished from costs in being always a compensation or recompense for services, while costs are an indemnification for money laid out and expended in a suit. They are also distinguished, as a compensation for particular acts,' etc., 'from wages.' Abb. Law Dict. A compensation for services rendered. Rendered to whom? When we pay a compensation for services, it must be for a service rendered to us which we have voluntarily contracted. But in this case the 'fee' is paid for a service rendered the state--rendered society--under what we are told is a police regulation for the protection of society and the prevention of crime. Turn it as we may, the conclusion forces itself upon us that this is a tax, whether direct or indirect. 'Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes, or to accomplish some governmental end.' Burroughs, Tax'n, p. 2, § 4.

We deem it unnecessary to discuss at any length the question of the invalidity of the act under consideration, because the legislature attempts therein to create an office, (the market clerk,) the term of which is longer than four years. We think this effort to create such an office is clearly invalid, and merely refer to the provision of our state constitution on this point: 'The legislature shall not create any office, the term of which shall be longer than four years.' Const. Fla. art. 17, § 14. Offices are either public or private; a public office being one which entitles a man to act in the affairs of others without their appointment or permission. Public offices are either offices of trust or ministerial offices. 2 Steph. Comm. 620; Rap. & L. Law Dict. This is a public ministerial office created by statute, and the powers and duties pointed out and provided by statute. It is unlimited in term, and therefore void.

One of the grounds of demurrer sustained by the court below was that our bill was bad because of an adequate remedy at law. That the remedy by injunction is well sustained, we refer to the following authorities: Cheney v. Jones, 14 Fla. 589; Dundee M. T. I. Co. v. School-District, 19 F. 359; White v. Haslett, 49 Ga. 262; Rood v. Mitchell Co., 39 Iowa, 444; Clement v. Everest, 29 Mich. 19; Sherman v. Benford, 10 R.I. 559. The Alabama and the Rhode Island cases are particularly strong in drawing the distinction between illegal and mere erroneous taxes, showing that in the former injunction is the remedy, while in the latter case it would not be. And this is the bent of all the authorities.

Syllabus by the Court

SYLLABUS

The insolvency of an officer to whom an alleged illegal fee or tax has been paid, does not, of itself, or in connection with the fact that the statute creating the office may be unconstitutional, give a court of equity jurisdiction for the recovery of such payment.

The fact that such statute may be unconstitutional does not authorize a resort to a court of equity to ascertain the illegality of the office.

A party seeking an injunction must show, not only clear legal or equitable rights, but a well-grounded apprehension of immediate injury to such rights. Where no necessity is shown for the injunction as a means of protection to such rights, it should not be granted.

Equity has no jurisdiction to enjoin the collection of a personal tax or fee by an officer where the bill shows no ground for apprehending that he will attempt to enforce a collection against the complainant's will.

COUNSEL

Hampton & Hampton and Calthoun, Davis & Gillis, for appellant.

J. J. & S. Y. Finley, J. T. Bernard, and R. B. Hilton, for appellee.

OPINION

RANEY, J.

Appellant filed a bill in chancery against appellee, alleging that the latter had under the provisions of 'An act regulating the sale of beef under circumstances therein provided for,' approved February 16, 1885, been appointed by the county commissioners of Alachua county clerk for the precinct of Gainesville, and that Bradford, as such clerk, collects from and requires appellant to pay him 25 cents for each and every hide inspected by him as such clerk, and has collected from appellant in the...