Elrod v. City of Daytona Beach

• Citation: 180 So. 378,132 Fla. 24
• Parties: ELROD v. CITY OF DAYTONA BEACH.
• Decision Date: 07 April 1938
• Court: United States State Supreme Court of Florida

180 So. 378

132 Fla. 24

ELROD v. CITY OF DAYTONA BEACH.

Florida Supreme Court, Division B.

April 7, 1938

Rehearing Denied April 25, 1938.

Error to Circuit Court, Volusia County; H. B. Frederick, Judge.

Action by R. A. Elrod against the City of Daytona Beach in Volusia county, Fla., to recover damages for injuries received as result of enforcement of allegedly unconstitutional ordinance passed by defendant, wherein defendant filed a demurrer. To review a judgment for defendant, plaintiff brings error.

Affirmed.

COUNSEL Ray Selden, of Daytona Beach, for plaintiff in error.

Leon J C. Harton, of Daytona Beach, for defendant in error.

OPINION

BROWN Justice.

This action was brought in the circuit court of Volusia county Fla., by R. A. Elrod, to ercover damages for injuries received by him as a result of the enforcement of an allegedly unconstitutional ordinance passed by the city of Daytona Beach. This appeal is predicated on two assignments of error which are directed at two orders of the trial judge sustaining demurrers to the plaintiff's declaration and second amended declaration filed in this cause. The declaration is in four counts and alleges in substance that the city of Daytona Beach passed an ordinance No. 623, which was unconstitutional in that it imposed a burden on interstate commerce and is in violation of the commerce clause of the Constitution of the United States (art. 1, § 8 cl. 3) and beyond the powers of the city to enact; that plaintiff, R. A. Elrod, was, on March 11, 1935, a salesman for the Real Silk Hosiery Mills, Indianapolis Ind., soliciting orders in the said city of Daytona Beach, upon which he received a small down payment from the customers, forwarding all such orders directly to the Real Silk Hosiery Mills where they were accepted or rejected and, if accepted, the merchandise ordered was sent directly to the customer C.O.D. for the balance unpaid; while engaged thusly, plaintiff was arrested by defendant city, through its mayor, city commission, servants, agents, and employees upon the charge that he, the plaintiff, did solicit or canvass from house to house within the city of Daytona Beach, without first having obtained a license therefor, as provided by Ordinance No. 623, and that he was assaulted and put in jail for six hours, ect., for which plaintiff claims damages.

The plaintiff claims the ordinance in question is unconstitutional under the authority of Myers v. City of Miami, 100 Fla. 1537, 131 So. 375. The ordinance, however, has not been set out in the pleadings and so this court cannot pass upon its constitutionality on this appeal. The demurrer admits all facts in the declaration that are well pleaded and so for the purpose of this suit we will accept plaintiff's version of the ordinance. Defendant in his brief states: 'We respectfully direct this Honorable Court's attention to the fact that the constitutionality of said ordinance is not being tried in the instant case. Admitting that said ordinance is void and unconstitutional, still we insist that Plaintiff in Error cannot maintain his action against said Defendant in Error, city.'

The only question then, presented by the pleadings, and the court's judgment rendered thereon, is whether under the facts alleged in the declaration, the city of Daytona Beach is liable to the plaintiff for injuries which he suffered because of the enforcement of an unconstitutional ordinance.

According to 19 R.C.L. 1101:

'It is generally held that a municipality is not liable for the enforcement of a void ordinance which imposes a license tax upon an occupation which is beyond the municipal power to tax, and even in states where the contrary view formerly prevalied, such decisions have been overruled.'

In Trescott v. Waterloo, C.C., 26 F. 592, 593, it was held that a party who had been arrested for the violation of an unconstitutional municipal ordinance requiring a license fee to be paid by nonresident peddlers, and, on conviction, had served out his fine in prison, could not maintain an action against the municipality for false imprisonment. It was there stated:

'The supreme Court of Iowa, in repeated decisions, affirms, as the law of the state, the general rule that the police regulations of a city are not made and enforced in the interests of the city in its corporate capacity, but in the interest of the public, and that consequently the city is not liable for the acts of its officers in enforcing such regulations. Ogg v. Lansing, 35 Iowa 495 ; Calwell v. City of Boone, 51 Iowa 687, 2 N.W. 614 . The regulation and control of peddlers, hawkers, proprietors of dollar stores, gift enterprises, and the like, as provided for in the ordinance passed by the city of Waterloo, is a police regulation, within the meaning of the rule laid down in the cases cited.

'Again, the action of the city in adopting the ordinance in question was, upon its part, a legislative act, and the exercise of a right of sovereignty primarily belonging to the state, but by the state delegated to the city. For errors of judgment in the exercise of such powers the cities are not liable in their corporate capacity. Fowle v. Alexandria, 3 Pet. 398 ; Duke v. City of Rome, 20 Ga. 635; Ogg v. Lansing, 35 Iowa 495 .'

In the case of Bond v. Royston, 130 Ga. 646, 61 S.E. 491, 18 L.R.A.,N.S., 409, the city of Royston adopted an ordinance imposing a tax on every nonresident dealer selling commercial fertilizer within the limits of the municipality, and it was there held that the adoption of this ordinance was an attempted exercise of the legislative powers conferred upon the municipality, and even though the ordinance was unconstitutional and void, the attempted enforcement of it would not render the municipality liable in damages.

It appears that the plaintiff attempted to take this case out of the rule by alleging that in the passage of the ordinance in question the city did not act 'in pursuance to nor in aid of any law of the State of Florida,' but the ordinance is 'on the contrary intended for the private advantage and benefit of the defendant city.' These allegations must be treated as mere conclusions of the pleader, as sufficient facts are not alleged to substantiate these conclusions. It does not appear that the municipality was, or legally could have been, engaged in any business which was in competition with the business of those affected by the ordinance--such as plaintiff's business. The only benefit that the municipality might receive from the ordinance was that it was to receive a license fee. Ordinances licensing and regulating hawkers, peddlers, and solicitors are generally upheld as valid police regulations and we do not concur in the allegation that such ordinances are for the private advantage and benefit of the city.

In considering a municipality's liability for torts, we find the general rule expressed in 43 C.J. 921, thusly:

'Generally in reference to liability for torts, it is held that a municipal corporation has a dual character, the one public and the other private, and exercise correspondingly twofold functions and duties. The one class of its powers is of a public and general character, to be exercised in virtue of certain attributes of sovereignty delegated to it for the welfare and protection of its inhabitants or the general public; the other relates only to special or private corporate purposes, for the accomplishment of which it acts, not through its public officers as such, but through agents or servants employed by it. In the former case its functions are political and governmental, and no liability ordinarily attaches to it at common law, either for nonuser or misuser of power; and such immunity from liability does not depend upon the use of the best, or of any particular, means in the conduct of the municipality's governmental business. * * * In its second character above mentioned * * * the corporation stands upon the same footing with a private corporation. * * *'

Although this court has been quite liberal in allowing actions for torts against municipal corporations, see Kaufman v. City of Tallahassee, 84, fla. 634, 94 So. 697, 30 A.L.R. 471; Chardkoff Junk Co. v. City of Tampa, 102 Fla. 501 135 So. 457; Smoak v. City of Tampa, 123 Fla. 716, 167 So. 528;, ballard v. City of Tampa, 124 Fla. 457, 168 So. 654, 657; Maxwell v. City of Miami, 87 Fla. 107, 100 So. 147, 33 A.L.R. 682, we have not yet gone so far as to formulate a doctrine that subjects the municipality to liability for torts that may be inflicted by the city acting in its strictly governmental capacity. As was said in the case of Ballard...