Hardee v. Brown

• Court: United States State Supreme Court of Florida
• Writing for the Court: WHITFIELD, J.
• Citation: 56 Fla. 377,47 So. 834
• Decision Date: 24 November 1908
• Parties: HARDEE, Marshal v. BROWN.

47 So. 834

56 Fla. 377

HARDEE, Marshal
v.
BROWN.

Florida Supreme Court, Division A.

November 24, 1908

Headnotes Filed December 8, 1908.

Error to Circuit Court, Dade County; Minor S. Jones, Judge.

Petition by R. E. Brown for habeas corpus to be directed to F. B. Hardee, marshal of the city of Miami. Petitioner was discharged, and the marshal brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where a writ of error returnable before the Supreme Court is issued by the clerk of the circuit court, it is not necessary to formally file the writ in the circuit court. The original writ should be returned to the Supreme Court.

Habeas corpus cannot be used to take the place, or to serve the purpose, of a writ of error to determine whether a judgment is erroneous, when the court has jurisdiction of the person and the conviction is of an offense under the law and within the jurisdiction of the court to try.

A person held in custody under a sentence of a municipal court upon a conviction on a charge based on an ordinance alleged to be void may test the validity of the ordinance in habeas corpus proceedings, and may be discharged from custody if the ordinance is void.

Municipalities are legal entities established for local governmental purposes, and they can exercise only such authority as is conferred by express or implied provisions of law. The existence of authority to act cannot be assumed, but it should be made to appear. When the authority to act appears, the correctness of the action taken thereunder may be presumed until the contrary is shown.

Every act of a municipality through its ordinances should be within the powers expressly or impliedly conferred, should be based upon a proper classification of subjects, should be reasonable and applicable alike to all under practically similar conditions and circumstances, 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; 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.

As contemplated by the Constitution, the effect of the provisions of the general license statute that any city of 5,000 inhabitants may impose upon any express company doing business in such city a license tax of $50, and that this shall not abridge or limit the powers granted to municipalities by special act to impose license taxes, is to provide a uniform authority to municipalities to impose the specified license tax where no inconsistent power is given by special act.

The Constitution of the state expressly authorizes the Legislature to pass special laws conferring powers upon municipalities, and the Legislature may authorize municipalities to impose license taxes.

By its charter act the city of Miami has power by ordinance to impose license taxes upon privileges, businesses, and occupations, and such license taxes are not controlled by the general revenue law of the state as to amounts.

The authority given the city of Miami in its charter act does not appear to offend organic law, and the ordinance of the city imposing $100 license tax upon express companies is not shown to be violative of the Constitution and laws of the United States, which is one of the express limitations of the charter act, and would be implied if not expressed.

Where a license tax is imposed upon express companies with reference to intrastate business, the fact that interstate business is also done by the company does not relieve it of the tax if it desires to do intrastate business.

COUNSEL [47 So. 835]

[56 Fla. 379] Redmond B. Gautier, for plaintiff in error.

Kay, Doggett & Smith and Price & Rand, for defendant in error.

OPINION

WHITFIELD, J.

The defendant in error presented to the judge of the circuit court for Dade county a petition alleging that he is unlawfully detained in the custody of F. B. Hardee, marshal of the city of Miami, upon a [56 Fla. 380] charge of failing to pay the license tax imposed upon the Southern Express Company for the year beginning October 1, 1907; that petitioner is agent of said company and is liable as such agent for a proper occupation tax; that said company is doing business in the city of Miami; that petitioner has been ready at all times to pay the occupation tax of $50 prescribed by law, while the city requires the payment of $100 as said occupation tax, which is unlawful.

The return of the marshal is that he holds petitioner under a judgment of the municipal court imposing a fine for doing business as agent of the express company without paying the $100 required of him.

A writ of habeas corpus was prayed and issued. An agreement was filed in effect conceding the facts alleged in the petition, and also that petitioner is manager of the Southern Express Company at Miami, and that the city of Miami has a population of between 5,000 and 10,000 people. The defendant moved to quash the writ on the ground that the validity of the city ordinance exacting the greater license cannot be tested in habeas corpus. This motion was denied, and defendant took an exception. The circuit judge discharged the petitioner from the custody of the marshal, and granted a writ of error to the defendant.

Section 2257 of the General Statutes of 1906 provides that the judge hearing the cause, or a justice of the Supreme Court, shall grant to any party aggrieved by the judgment in a habeas corpus proceeding, including the state or any officer or political subdivision thereof, a writ of error returnable to the Supreme Court.

It is essential that the writ of error be granted by the judge who heard the cause, or by a justice of the Supreme Court, as required by the statute. See State ex rel. Porter v. Vinzant, 49 Fla. 130, 38 So. 366; [56 Fla. 381]...