Ex Parte Smith

• Decision Date: 14 June 1930
• Citation: 100 Fla. 1,128 So. 864
• Parties: Ex parte SMITH.
• Court: Florida Supreme Court

128 So. 864

100 Fla. 1

Ex parte SMITH.

Florida Supreme Court, Division B.

June 14, 1930

Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Habeas corpus proceeding by H. R. Smith to secure his release from custody of the town marshal of Dunnellon pursuant to a conviction for violation of a town ordinance. To review a judgment remanding him to the custody of the town marshal petitioner brings error.

Petitioner discharged.

COUNSEL

Zack H. Douglas, of Gainesville, and H. H. McDonald of Mayo, for plaintiff in error.

Fred H Davis, Atty. Gen., and Norris F. Baskin, of Ocala, for defendant in error.

OPINION

STRUM J.

This is a writ of error to a final judgment in habeas corpus remanding petitioner to the custody of the town marshal of Dunnellon pursuant to a conviction for violating section 1 of Ordinance No. 167 of the town of Dunnellon, which provides:

'Sec. 1. That each and every person, firm or corporation selling and/or delivering any goods, wares or merchandise, including Bakery products and Bottled beverages, from any motor truck or other vehicle in the Town of Dunnellon, Florida, whether an order therefor has been previously given by the buyer and/or an order taken therefor previously by the seller thereof or not, shall pay to the Town of Dunnellon an occupational license tax therefor of Thirty Five ($35.00) Dollars per annum for each such motor truck or other vehicle from which the same is sold and/or delivered. Provided, that this Ordinance shall not include dairy, poultry or farm products raised, grown and/or manufactured within the State of Florida, and provided that the person offering the same for sale shall exhibit an affidavit from the County Judge of the County in which such dairy, poultry or farm products were raised, grown and/or manufactured stating that the same were raised, grown or manufactured in the County of the County Judge so making the affidavit, the affidavit aforementioned to be exhibited to the Town authorities. No such license tax as provided above shall be required of or collected from any person, firm or corporation who or which owns or operates in the Town of Dunnellon a merchandising establishment, bakery or bottling works and has paid to the Town of Dunnellon a license tax for conducting or operating the same.'

The facts constituting the alleged offense were as follows: On May 11, 1929, petitioner was arrested by the town marshal of Dunnellon while delivering a quantity of flour, meal, and scratch feed to a merchant in the town of Dunnellon, which merchandise had been conveyed by petitioner in a truck, the property of Mountain City Mills Company, into the town of Dunnellon for delivery to said merchant.

The home office of said Mountain City Mills Company is in Tennessee, but it maintains a branch office and storage warehouse in Gainesville, Fla. It has no place of business in Dunnellon, and pays no license tax there; neither had the petitioner paid any license tax as required by section 1 of said ordinance.

Petitioner was convicted of a violation of the ordinance aforesaid, and is in custody pursuant thereto. He challenges the validity of the ordinance upon several grounds. There is no serious contention, however, that under the facts in this case the ordinance violates the interstate commerce clause of the Federal Constitution, as the goods which were being delivered by the petitioner, though they may have originated in another state, were not then in interstate movement, as they had previously come to rest in the branch warehouse of Mountain City Mills Company, at Gainesville, Fla., where they had become a part of the common mass of property in the state of Florida, and from whence petitioner procured the goods for transportation from Gainesville to Dunnellon, Fla., for delivery to a merchant in the latter town, pursuant to an order therefor taken in Dunnellon and filled from the general stock on hand in the Gainesville warehouse. The transaction was thus wholly intrastate.

The ordinance in question is a revenue measure. It has no relation to the public peace, safety, health, or morals, and is therefore not a police measure.

The proviso of section 1 exempts from the operation of the ordinance the sale or delivery of dairy, poultry, or farm products raised, grown, or manufactured within the state of Florida, thereby arbitrarily discriminating against the products, and the rights of citizens, of other states. The ordinance requires a license to be taken out by persons selling or delivering dairy, poultry, or farm products not produced in the state, but requires no license of those who sell or deliver like articles in like manner but produced within the state of Florida. A person selling or delivering by truck dairy, poultry, or farm products produced in Nassau county, on the northern border of Florida, would be exempt from payment of the tax. A person selling or delivering by truck like products in the same manner, but grown a few miles to the north and within the southern boundary of Georgia, would be subject to the tax. There would be no difference in fact between the two transactions, save only the difference in origin of the commodities.

The difference in the place of production or origin affords no ground for discrimination in revenue measures between persons selling or delivering the same kind of goods in the same manner and under like circumstances. Arbitrary discrimination cannot be accomplished under the guise of classification.

The effect of the proviso in section 1 is to create and enforce a discrimination not based upon differences in the nature of the business being transacted, nor upon differences in the manner of conducting the same business, nor upon any difference other than the difference in the place of origin of the commodities. The exemption of dairy, poultry, and farm products is generally regarded as permissible in revenue measures imposing license taxes (see Cahoon v. Smith, 128 So. 632 decided May 21, 1930), although such an exemption has been condemned in police measures. See Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679; State v. Cudahy Packing Co., 33 Mont. 179, 82 P. 833, 114 Am. St. Rep. 804, 8 Ann. Cas. 717. The proviso here in question, however, does not exempt dairy, poultry, and farm products generally, wherever produced or grown, but exempts only those raised, grown, or manufactured in the state of Florida. The boundary line of the state, and that alone, determines the operation of the proviso. If the products are produced in Florida, no license is required. If not, the license must be paid. The courts are unanimous in condemning such a basis of classification for purposes of taxation.

The courts have frequently approved classifications resting upon the difference in fact between the business of an itinerant merchant, and the business of a merchant operated at a fixed location, both being engaged in the same general character of business. Such classification is not based upon residence, but upon the essentially different methods employed by the two classes in carrying on the same general character of business. Such a classification has been recognized by the courts as valid both in exercise of the regulatory police power for the purpose of preventing cheats, frauds, and dangers to public health or morals (see Baccus v. Louisiana, 232 U.S. 334, 34 S.Ct. 439, 58 L.Ed. 627; Mogul v. Gaither, 142 Md. 380, 121 A. 32; Holsman v. Thomas, 112 Ohio St. 397, 147 N.E. 750, 39 A. L. R. 760; Biddles v. Enright, 239 N.Y. 354, 146 N.E. 625, 39 A. L. R. 766), as well as in the exercise of the taxing power, since the state may levy a different tax on the same general character of business when conducted in essentially different modes. See Singer Sewing Machine Co. v. Brickell, 233 U.S. 304, 34 S.Ct. 493, 58 L.Ed. 974; Emert v. Missouri, 156 U.S. 296, 15 S.Ct. 367, 39 L.Ed. 430; Borough of Warren v. Geer, 117 Pa. 207, 11 A. 415; Howe Mach. Co. v. Gage, 100 U.S. 676, 25 L.Ed. 754. The classification sustained in Re Haskell, 112 Cal. 412, 44 P. 725, 32 L. R. A. 527, relied upon by petitioner, rested upon the fact that Haskell was an itinerant merchant, whose business was carried on in a manner differing essentially from that of a merchant selling the same character of merchandise at a fixed location.

Where as is the case with this ordinance, the primary and inescapable effect of the proviso is to work an injurious discrimination, purely on the basis of origin, against commodities produced in other states, and in favor of the same commodities produced locally and sold or delivered under the same circumstances, such ordinances are universally held to be void. Some courts hold them so upon the ground that it is in effect a discrimination upon...