Ex Parte Simms

• Decision Date: 17 December 1898
• Citation: 25 So. 280,40 Fla. 432
• Court: Florida Supreme Court
• Parties: Ex parte SIMMS.

25 So. 280

40 Fla. 432

Ex parte SIMMS.

Florida Supreme Court

December 17, 1898

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

Petition by Robert W. Simms for a writ of habeas corpus. The writ was denied, and petitioner brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. The municipality of Jacksonville has no power, either by special charter or by any general law, to segregate the several elements of right that accrue to its citizens under one taxable privilege, as recognized, defined, and declared by the general revenue laws of the state, and to impose by ordinance a license tax upon such segregated element of the one privilege, as a separate and distinct privilege of its own creation.

2. The general revenue laws of the state, in imposing license taxes upon dealers in liquors, group the various intoxicants therein designated as 'spirituous, vinous, and malt liquors,' into one general class of merchandise, and provide that the dealer in any one or all of such several intoxicants shall be subject to the one license tax therein imposed, and declare in express terms that dealers paying the same, and receiving a license therefor, shall be authorized to sell spirituous, vinous, or malt liquors, or any such liquors. The city of Jacksonville, under the special authority of its charter to 'license and tax privileges,' and under the power conferred upon municipalities generally by the general revenue laws of the state to 'impose taxes on any business, profession or occupation not mentioned' in said general revenue acts has no authority to enact an ordinance that imposes one license tax, that, when paid, gives to the licensee the right to sell spirituous and vinous liquors, either at wholesale or retail, and malt liquors at retail only, and that imposes upon the wholesale dealer in malt liquor alone another separate and distinct license tax. The licensed liquor dealer, whether at wholesale or retail, has the right, as elements of a single taxable privilege, to deal in, at wholesale or retail, as the case may be, all three of the general classes of liquors known as 'spirituous, vinous and malt'; and such an ordinance as the one mentioned is unauthorized and void, wherein it undertakes to except wholesale dealers in malt liquors from the license it grants to wholesale dealers in spirituous and vinous liquors, and wherein it undertakes to impose a separate license tax upon such wholesale dealers in malt liquors alone.

3. Statutes conferring authority to impose taxes must be construed strictly, and delegated corporate powers to municipalities--particularly grants of powers that are out of the usual range, and that may result in public burdens, or which in their exercise touch the right to liberty or property, or any common-law right of the citizen--must likewise be strictly construed; and when, in such construction, there is any ambiguity or doubt as to the extent of the power, it is to be determined in favor of the state or general public, and against the state's grantee.

COUNSEL D. C. Campbell, for plaintiff in error.

J. M. Barrs, for defendant in error.

OPINION

TAYLOR C.J.

On September 27, 1898, the city council of the city of Jacksonville adopted an ordinance entitled 'An ordinance providing for and regulating the registration of all persons firms and corporations engaged in a business, profession or occupation in the city of Jacksonville, fixing the license taxes for the year October 1, 1898, to October 1, 1899, and regulating the doing of business under such licenses.' Such ordinance, among other things, provided as follows:

'Sec. 2. That from and after the first day of October, 1898, and until the first of October, 1899, no person shall engage in or manage the business, profession or occupation or occupations hereinafter mentioned and required to be licensed by the city without first having paid the amount of license tax required therefor to the city treasurer for the use of the city, and obtained a license therefor. 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.'

'Sec. 4. No person, firm, corporation or as sociation 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 affixed, as follows:

Liquors, dealers in spirituous, vinous or

malt liquors, other than wholesale

dealers in beer, for each place of business .. $ 400

Wholesale dealers in beer, including

brewers, brewers' agents, all persons

storing beer in the city for delivery,

and all dealers selling beer by the keg,

quarter-keg or cask to retail dealers,

shall pay for each place of business or

agency, a special license tax of ............. 1,000

No license other than the special license for wholesale dealers in beer shall cover the selling of beer by the keg, quarter-keg or cask to retail dealers.'

'Sec. 6. That any person violating any provision of this ordinance shall, upon conviction, be punished by fine not exceeding $500, or imprisonment not exceeding ninety days.'

For an alleged violation of that feature of this ordinance that requires the payment of a special license tax of $1,000 by any person selling 'beer' at wholesale, the plaintiff in error was tried and convicted by the judge of the municipal court of said city, and sentenced to pay a fine of $500, or stand committed to the city jail for the full term of 90 days.

On the 18th day of November, 1898, after such conviction and sentence, the plaintiff in error filed his petition for a writ of habeas corpus in the circuit court of Duval county alleging therein that he was a resident of said city of Jacksonville, Fla., and engaged in business as a dealer in spirituous, vinous, and malt liquors; that he has three places of business within the corporate limits of the municipality of Jacksonville, located about the central business part of the city, for all of which places he has duly obtained a permit from the board of county commissioners of Duval county, Fla., paid the state license tax of $1,500, paid the county license tax of $750, and the city license of $1,200, securing the state, county, and city license for each place of business; that in one of said places of business he stores and sells to retail dealers beer in kegs, half kegs, and casks, for which place of business the said municipality demands an additional license tax of $1,000, claiming that the license that he had already paid for and secured does not permit him to sell to dealers beer in kegs, half kegs, and casks, and that, in order to sell beer in said quantities to dealers, he must pay an additional license tax of $1,000, and secure an additional license. The said petition then alleges the petitioner's neglect and refusal to pay said additional special license tax of $1,000, his arrest, conviction, and sentence by the city authorities under the ordinance above quoted, and that he will be kept in custody and deprived of his liberty under such sentence; that the beer that he so sells at one of his said places of business is a malt liquor, is the least intoxicating of any liquors, and is the same as he has always sold, and in the same quantities, under his state and county licenses and under his municipal license, all of which he has already paid and secured, except the license for...