Gandy v. Borras

• Decision Date: 10 April 1934
• Citation: 154 So. 248,114 Fla. 503
• Parties: GANDY, Sheriff v. BORRAS.
• Court: Florida Supreme Court

154 So. 248

114 Fla. 503

GANDY, Sheriff v. BORRAS.

Florida Supreme Court

April 10, 1934

Rehearing Denied April 24, 1934.

Error to Circuit Court, Escambia County; L. L. Fabisinski, Judge.

Habeas corpus proceeding by L. L. Borras against H. E. Gandy, as Sheriff of Escambia County. Judgment for petitioner, and respondent brings error.

Reversed.

ELLIS and BUFORD, JJ., dissenting.

COUNSEL

John Lewis Reese and John M. Coe, both of Pensacola for plaintiff in error.

J McHenry Jones and Terry Richardson, both of Pensacola, for defendant in error.

OPINION

DAVIS Chief Justice.

Sections 3577-3583, C. G. L., sections 2244-2250, R. G. S., provide that a board of examiners and license commissioners composed of three members shall be appointed by the mayor in each city of this state having 6,000 inhabitants or more, for the purpose of examining and licensing persons who in said cities may engage or work at the business of operating, or assisting in the operation of, any cinematograph or similar apparatus known as a moving picture machine. Under section 7718, C. G L., section 5541, R. G. S., any persons violating the licensing statutes above mentioned, either as an operator or manager, is subject to a fine not exceeding $100 for each and every violation, with ninety days' imprisonment as an alternative punishment for default in payment of may fine imposed.

The case now before us is one wherein plaintiff in error seeks to reverse a judgment rendered by the circuit court in habeas corpus releasing defendant in error from his custody while being held on a charge of violating the above-mentioned statute by employing on W. F. Townsell, and unlicensed person, to operate certain moving picture machines at Bay View Park and Sanders Beach within the city of Pensacola, a city of more than 6,000 inhabitants. The release ordered by the circuit judge was apparently on the theory that the statute under which petitioner was held was unconstitutional. The constitutional grounds alleged were that the statute is violative of the equal protection and due process clauses of the Federal Constitution (Amendment 14) as well as violative of section 27 of article 3 of the state Constitution requiring appointments of state officers to be made by the Governor.

The business or occupation of managing and operating moving picture machines with their attendant dangers incident to the use of electricity in connection therewith is one peculiarly within the scope of the police power of the state to regulate. Such regulation may be accomplished in any reasonable manner, and may be of such nature and extent as the Legislature may deem to be appropriate.

When a subject lies within the police power of the state, debatable questions as to reasonableness of the exercise of the power are not for the courts but for the Legislature The Legislature, by reason of the dangers incident to the use of electricity when employed in the operation of moving picture apparatus, is entitled to legislate, not only for the protection and safety of the general public, but for the welfare, protection, and safety of the motion picture machine operators themselves, since, in the preservation of the lives and safety of its citizens, the state undoubtedly has such an interest as to enable it to prescribe the conditions upon which persons within its jurisdiction may engage in occupations of hazardous character.

And, with respect to the regulation of those particular callings and occupations which require the handling and use of electricity by persons employed to operate machines by the use of such agency generally regarded as dangerous, the Legislature is entitled to form its own judgment as to the necessity, character, and scope of any regulations to be imposed. And the Legislature's action within the range of discretion cannot be set aside because compliance is burdensome, or because the court may think there is no real necessity for the regulations prescribed. Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167; Standard Oil Co. v. Marysville, 279 U.S. 582, 49 S.Ct. 430, 73 L.Ed. 856; Price v. Illinois, 238 U.S. 446, 35 S.Ct. 892, 59 L.Ed. 1400; Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, Ann. Cas. 1917B, 927; Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A. L. R. 1016; Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074.

To provide a safeguard against the dangers of inefficiency and incompetency in the use of electricity in moving picture machines, the Legislature may provide that only persons who have been first examined and thereafter licensed by some agency designated by it for that purpose shall undertake to engage in or work 'at the business of' operating or assisting in the operation of such moving picture machines, and may make its regulation and prohibitions in that regard applicable to all communities, or to such reasonably ascertained and designated classes of communities only, in this state, as the Legislature may deem essential for the safety and welfare of the public. State v. Loden, 117 Md. 373, 83 A. 564, 40 L. R. A. (N. S.) 193, Ann. Cas. 1913E, 1300; State ex rel. Davis, Atty. Gen., v. Rose, 97 Fla. 710, 122 So. 225.

The Legislature of a state may prescribe the qualifications of persons authorized to engage in any trade or occupation which affects the public and requires special knowledge or skill, subject, however, to the limitation that unreasonable regulations and conditions will be declared void as a denial of constitutional liberty and of the equal protection of the laws. Riley v. Sweat (Fla.) 149 So. 48; 12 C.J. 1161.

In the present case it appears that the statute prescribes a reasonably certain standard of qualification, in that under section 3579, C. G. L., section 2246, R. G. S., the scope of the examination is confined to a practical and elementary test of the applicant as to his knowledge of electricity, coupled with at least one year's practical experience with moving picture machines if an operator, or one year's service under an experienced operator if an assistant to an operator.

After prescribing a standard of qualification of its own, the Legislature may thereafter, as a matter of administration of its declared will, provide for officially appointed agencies or officials to execute its statutory purposes concerning determination of the facts upon which the law is to operate, by conducting appropriate examinations of applicants to ascertain the factual existence of their qualifications under the law.

Examining boards, when provided for by statute to officially ascertain the qualifications of persons assumed to possess some special knowledge or skill, without which they would not be permitted, under regulations prescribed by law, to engage in some business, profession, or occupation requiring it, are simply legislative agencies set up to ascertain and declare the particular factual conditions upon which the statute itself takes effect.

Where a particular profession, business, or occupation to be regulated is that engaged in only inside the limits of cities or towns of a specified class, and the examination to be made is confined to an inquiry into the appellant's qualifications to practice his trade or profession in some particular locality only, where the examination is to be made and the license is to be issued, there appears to be no constitutional objection susceptible of being asserted in derogation of the power of the Legislature to adopt as its own mechanism the instrumentality of a municipally appointed board as its official agency for the purpose of making examinations, and ascertaining the qualifications, of persons assuming to practice some business, trade, or profession solely in the city or town where the local board is authorized to act.

Members of a locally appointed examining board, named by the mayor of a city under authority of a statute, the jurisdiction and power of which board to conduct examinations and grant licenses is confined to the territorial jurisdiction of the municipality within which the board acts, are not state officers, but are municipal officers, and as such are not required by section 27 of article 3 of the Constitution to be appointed by the Governor or elected by the people, although they may serve under state law the purposes of a legislative agency vested with statutory authority to grant licenses to practice or engage in a business, profession, or occupation in the locality, which the state statute prohibits one from engaging in or practicing without a certificate of qualifications conforming to the requirements of a general enactment applicable to all cities and towns in the state of a specified population.

The fact that the statute applies only in cities or towns having 6,000 population or more does not per se render the statute obnoxious to the due process or equal protection clauses of the United States Constitution (Amendment 14), nor violative of our own constitutional provision (article 3, § 21), which requires penal statutes to be of uniform operation throughout the state. Hiers v. Mitchell, 95 Fla. 345, 116 So. 81; Noble v. Carlton (D. C.) 36 F. (2d) 967; Sparkman v. County Budget Commission, 103 Fla. 242, 137 So. 809; State ex rel. Buford, Atty. Gen., v. Daniel, 87 Fla. 270, 99 So. 804; Beasley v. Cahoon (Fla.) 147 So. 288.

Based on the foregoing considerations, we hold that chapter 6955 Acts of 1915, now sections 3577-3583, C. G. L., sections 2244-2250, R. G. S., and section 7718, C. G. L., section 5541, R. G. S., is a valid exercise of the legislative power of the state and is constitutional. The act is not arbitrary in the sense dealt with in Bessette v. People, 193 Ill. 334, 62 N.E. 215, 56...