Ferguson v. Mcdonald

• Decision Date: 17 December 1913
• Citation: 63 So. 915,66 Fla. 494
• Parties: FERGUSON, City Marshal v. McDONALD.
• Court: Florida Supreme Court

63 So. 915

66 Fla. 494

FERGUSON, City Marshal v. McDONALD.

Florida Supreme Court

December 17, 1913

Error to Circuit Court, Dade County; L. W. Bethel, Judge.

Application for habeas corpus by W. H. McDonald against C. R. Ferguson Marshal of the City of Miami. Judgment for petitioner, and defendant brings error. Reversed.

See also, 62 So. 1039.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

Municipalities can lawfully exercise only such taxing, police, and other powers as are conferred by express or implied provisions of statutes within the limitations imposed by organic law.

Every act of a municipality through its officers should be within the powers legally conferred, should be based upon a proper classification of subjects, should be reasonable, and should not violate any provision or principle of law.

There is no express limitation upon the power of the Legislature to provide for levying a tax on licenses, whether it be levied directly by and for the state or through a municipality for its purposes; but such power should not be so exercised as to deprive any person of property without due process of law, or so as to deny to any person the equal protection of the laws or so as to encroach upon the dominant authority of Congress to regulate interstate and foreign commerce, or so as to impose a tax or burden upon interstate commerce, or upon the means employed by the government of the United States to execute its constitutional powers.

Where there are valid local or special laws relating to the powers and government of particular municipalities that are in conflict with the general statutory law, such local or special laws prevail.

Notwithstanding the language of the general license revenue law (chapter 5597, Laws 1907) that 'no further license tax shall be imposed by any county or municipality' upon telegraph companies, the powers conferred by the special charter act and the provision of the same act that 'nothing in this act shall be construed as in any way abridging or limiting the powers which have been granted or may be granted to any municipal corporation by special act or by charter act for the purpose of requiring the payment of license taxes,' considered in connection with the terms and purpose of the organic law that the powers of any municipality may be controlled by local or special laws, confer upon the city the power to impose a valid license tax upon telegraph companies engaged in the city in doing intrastate business. If the ordinance of the city imposing the license tax in question does not encroach upon the paramount authority of Congress to regulate interstate or foreign commerce, and does not impose a burden or tax upon interstate, commerce, or upon an agency of the United States in performing a service for the government, which are the only organic objections here made to the ordinance, it should be enforced.

The permissive grant from the United States to telegraph companies to use the military and post roads for the poles and wire of such companies 'does not prevent the state from taxing the real or personal property belonging to the companies in the state, or from imposing a license tax upon the right to do a local business within the state.'

The ordinance of the city of Miami, imposing a municipal license tax of $100 on telegraph companies, relates solely to intrastate business done in the city, and does not apply to and cannot be lawfully enforced so as to apply to or regulate or impose, a burden upon foreign or interstate messages or messages, whether foreign, interstate, or intrastate, sent by or for the United States government. Thus construed, the ordinance does not conflice with federal law.

That a telegraph company was engaged in sending interstate and governmental messages did not exempt an agent of the company from arrest for a violation of a city ordinance imposing a license tax.

COUNSEL J. L. Billingsley, of Miami, for plaintiff in error.

James T. Sanders, of Miami, for defendant in error.

OPINION

WHITFIELD J.

In habeas corpus proceedings W. H. McDonald was discharged from custody of the city marshal, under a sentence of conviction by the municipal court of the city of Miami, Fla., for violating the ordinance of the city by doing business in said city as agent of the Western Union Telegraph Company, which such company had not procured a license to do business therein as required by the city ordinance; the court holding the ordinance imposing the license tax on the company to be invalid. The city through its marshal obtained a writ of error under the statute. Section 2257, Gen. St. 1906.

Municipalities can lawfully exercise only such taxing, police, and other powers as are conferred by express or implied provisions of statutes within the limitations imposed by organic law. Every act of a municipality through its officers should be within the powers legally conferred, should be based upon a proper classification of subjects, should be reasonable, and should not violate any provision or principle of law. Hardee v. Brown, 56 Fla. 377, 47 So. 834; State ex rel. Worley v. Lewis, 55 Fla. 570, 46 So. 630; State ex rel. Ellis v. Tampa Water Works Co., 56 Fla. 858, 47 So. 358, 19 L. R. A. (N. S.) 183; Florida Cent. & P. R. Co. v. Ocala St. & S. R. Co., 39 Fla. 306, 22 So. 692.

The Constitution of the state contains the following provisions: 'The Legislature shall establish a uniform system of county and municipal government, which shall be applicable, except in cases where local or special laws are provided by the Legislature that may be inconsistent therewith.' Section 24, art. 3.

'The Legislature shall have power to establish and to abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time.' Section 8, art. 8.

'The Legislature may also provide for levying * * * a tax on licenses.' Section 5, art. 9.

There is no express limitation upon the power of the Legislature to provide for levying a tax on licenses, whether it be levied directly by and for the state, or through a municipality for its purposes; but such power should not be so exercised as to deprive any person of property without due process of law, or so as to deny to any person the equal protection of the laws, or so as to encroach upon the dominant authority of Congress to regulate interstate and foreign commerce, or so as to impose a tax or burden upon interstate commerce, or upon the means employed by the government of the United States to execute its constitutional powers. Hardee v. Brown, supra; Cason v. Quimby, 60 Fla. 35, 53 So. 741; In re Watson, 17 S.D. 486, 97 N.W. 463, 2 Ann. Cas. 321, and cases cited in notes; Bradley v. City of Richmond, 227 U.S. 477, 33 S.Ct. 318, 57 N. Ed. 603; Quong Wing v. Kirkendall, 223 U.S. 59, 32 S.Ct. 192, 56 L.Ed. 350; Caldwell v. North Carolina, 187 U.S. 622, 23 S.Ct. 229, 47 L.Ed. 336; Crenshaw v. Arkansas, 227 U.S. 389, 33 S.Ct. 294, 57 L.Ed. 565; Williams v. City of Talladega, 226 U.S. 404, 33 S.Ct. 116, 57 L.Ed. 275; Telegraph Co. v. Texas, 105 U.S. 460, 26 L.Ed. 1067.

The general state revenue license law (chapter 5597, Laws of Florida, approved June 1, 1907), provides as follows: 'Telegraph systems, including cable lines owned by any person, firm, corporation or company operating in this state shall pay a license tax to the Comptroller of fifty cents per mile, one-half of which shall be paid to each county in which or through whih said telegraph line runs, in proportion to the mileage in any such county, and no further license tax shall be imposed by any county or municipality.' 'Nothing in this act shall be construed as in any way abridging or limiting the powers which have been granted or may be granted to any municipal corporation by special act or charter act for the purpose of requiring the payment of license taxes.'

The special charter act of the city of Miami (chapter 5823, Laws of Florida, approved May 27, 1907) provides in section 20 'that the city council * * * shall have power to pass all such ordinances and prescribe penalties for the violation thereof, as may be necessary * * * to license privileges, businesses, occupations and professions limits, and the amounts of such license and limits, and the amounts of such license and the amount of such license taxes shall be fixed by city ordinance, which amounts of said taxes shall not be dependent upon a general state revenue law.'

The city ordinances authorized by the above section of the charter act are therein expressly required to be 'not inconsistent with * * * the Constitution and laws of the United States.' This limitation upon the power of the city to make and enforce ordinances would attach by necessary implication if not expressly written in the charter. See Crenshaw v. Arkansas, 227 U.S. 389, 33 S.Ct. 294, 57 L.Ed. 565.

The Constitution and laws of this state provide for a uniform system of municipal government, which shall be applicable except where special or local laws for the government of particular municipalities are enacted...