Howland v. State

• Decision Date: 08 December 1908
• Citation: 56 Fla. 422,47 So. 963
• Parties: HOWLAND, City Treasurer v. STATE ex rel. ZIRKLEBACH et al.
• Court: Florida Supreme Court

47 So. 963

56 Fla. 422

HOWLAND, City Treasurer v. STATE ex rel. ZIRKLEBACH et al.

Florida Supreme Court, Division A.

December 8, 1908

Headnotes Filed Jan. 21, 1909.

Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Application by the State, on the relation of John Zirklebach and others for writ of mandamus against Harry T. Howland, city treasurer of the city of Pensacola. From a judgment granting the writ defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Mandamus will lie to compel a city treasurer to issue a receipt to an applicant for a liquor license, where such receipt is a necessary step in the procurement of a license.

A municipal ordinance, fixing the charge for a liquor license outside a restricted area in the city at $1,500 additional to that imposed in such area, is invalid, it being admitted that the costs of policing is the same and that both districts contain resident and business sections, although the municipality is empowered to pass any ordinance not in conflict with the federal or state Constitutions or statutes to regulate and restrain liquor shops and to impose license taxes.

COUNSEL John B. Jones, for plaintiff in error.

Blount & Blount & Carter, for defendants in error.

OPINION

COCKRELL J.

On April 21, 1908, the city treasurer of Pensacola sued out his writ of error to the judgment of the circuit court entered October 26, 1908, awarding a peremptory writ of mandamus commanding the issuance of a receipt from the city as a basis for a license to John Zirklebach & Co.

The alternative writ attacks the validity of a section of an ordinance of the city of Pensacola passed September 25, 1907. The first section prohibits any one engaging in the business of a dealer in spirituous, vinous, and malt liquors without payment of a license tax of $1,000. The second section provides that, outside a certain designated limit, the license for such dealer 'shall be fifteen hundred dollars in addition to the amount prescribed in section one.' The relator's place of business was outside the designated limit, and he tendered the amount required under section 1.

We must accept as true all the allegations of fact properly averred in the alternative writ; the defendant, plaintiff in error here, having declined to take issue thereon. From these allegations we learn: That the restricted district embraces an area approximately 500 yards by 700 yards, embracing a portion of the business section of the city and also many dwellings. While the outside area, of many square miles embraces a large portion of the entire business section of the city and also residences, the restricted area embraces parts of election districts 13 and 14, and the entire city embraces also election districts 12 and 15. Prior to the passage of the ordinance the restricted area contained 22 licensed dramshops, as against 18 outside. That the cost of police protection and regulation is no greater in the $2,500 district than in the $1,000 district. It further appears that relator had been for years before in the business, and had a large stock of liquors on hand, and has secured his state and county license.

We think the proper remedy was pursued. The writ of mandamus has been frequently applied in kindred cases in this jurisdiction as will be shown by an examination of our Reports, and would seem to be the specific adequate remedy. State ex rel. Bash v. County Commissioners of Jefferson County, 20 Fla. 425, text 427; State ex rel. Norman v. D'Alemberte, 30 Fla. 545, 11 So. 905; State ex rel. Hubbard v. Holmes, 53 Fla. 226, 44 So. 179.

The power to impose this discriminating license tax or permit must come, if at all, from certain general powers conferred by the Legislature upon the city of Pensacola. There is no specific legislative authority to charge different amounts of licenses for the same kind of occupation or businesses to be conducted in different portions of the city. These general grants are 'to pass for the government of the city any ordinance not in conflict with the Constitution of the United States, the Constitution of Florida, and statutes thereof; * * * to regulate and restrain all tippling, bar-rooms and all places where beer, wines or spirituous liquors of any kind is sold at retail or to be drunk on the premises. * * * Licenses shall be fixed at not exceeding fifty per cent. of the state licenses fixed by the Legislature, except for purposes of restraint.'

It is further contended that additional power was conferred by section 2, c. 5088, p. 310, Laws 1901, whereby the city was authorized to 'impose license and occupational taxes upon all trades, professions and businesses conducted within the city limits,' whereby it is claimed the city may charge more than half of the amount fixed by the state, whether for revenue, regulation, or restraint.

It is unnecessary to decide now whether the later act repeals or enlarges the former. The applicant admits the right of the city to charge fourfold the amount fixed by the Legislature as the state license by tendering the $1,000, but objects to the discrimination whereby, under the conditions as admitted to exist, he is called upon to pay an additional $1,500.

Strictly as a revenue measure, the power would not seem to exist under the decision of this court in Ex parte Simms, 40 Fla. 432, 25 So. 280. There we held that, under general powers, the city of Jacksonville could not split up the business of selling spirituous, vinous, and malt liquors so as to impose a special tax upon the sale of beer by wholesale, differing from that imposed upon the sale of other intoxicating liquors. This scheme of discriminating in the amounts of the license tax as between different parts of the city is at variance with the settled policy of this state in charging a uniform license irrespective of the portion of the state in which the business is to be conducted; nor is this affected by requiring an additional amount to be paid the counties when the saloon is located outside a municipality, the licensee being required to pay the same amount in the latter case, the county not being required to share with the municipality.

The power to regulate or restrain, short of absolute prohibition (Ex parte Theisen, 30 Fla. 529, 11 So. 901, 32 Am. St. Rep. 36), is not an absolute, arbitrary power, but must be exercised in a reasonable manner. We indulge presumptions in favor of the reasonableness of an ordinance out of deference to the superior opportunities for knowledge of the actual existing conditions in municipalities possessed by the city council over us, and we are fully alive to the powerful arguments that may be advanced in favor of restricting saloons within limits easily policed, but we are bound by the fixed rules of law requiring a close scrutiny of statutes conferring authority to impose taxes, and the suspicion always aroused by discriminations apparently excessive.

There may, it is true, be other considerations than those negatived in the alternative writ, which would support a substantial discrimination, when discrimination is authorized; but the most important are those arising from the costs of the regulation and the character of the buildings within the two sections, as being devoted to business or residence purposes.

We decide nothing now, however, but that the showing here made overcame the prima facies of reasonableness of the ordinance, and that the burden was shifted to and unmet by the respondent.

The judgment is affirmed.

SHACKLEFORD, C.J., and WHITFIELD, J., concur.

TAYLOR, P.J., concurs in the opinion.

CONCURRING

WHITFIELD J. (concurring).

I concur in the opinion of Mr. Justice COCKRELL. The ordinance must rest on either the police power or the taxing power conferred upon the municipality.

The powers of the city with reference to this controversy are contained in the provisions of the general law and special acts authorizing the city to 'impose license and occupational taxes upon all trades, professions and businesses conducted within the city limits; * * * to regulate and restrain all tippling, barrooms and all places where beer, wines or spirituous liquors of any kind is sold at retail, or to be drunk upon the premises where sold, * * * to require all such places to be kept and used subject to such reasonable regulations as the council may prescribe; to require all keepers of such places to procure from the city or town a license for keeping the same, under such pains, penalties and forfeitures as the council may prescribe;' and 'to pass for the government of the city any ordinance not in conflict with the Constitution of the United States, the Constitution of Florida, and statutes thereof.'

The power 'to regulate and restrain' and 'to require all keepers of such places to procure from the city or town a license for keeping the same' is a police power. The charge for such license as a police regulation is confined to the expense of issuing the license and the cost of police inspection and supervision of the business so licensed. In addition to requiring a license to be procured as a police regulation, the city is expressly authorized 'to regulate and restrain * * * barrooms' by the direct and reasonable exercise of the police power given to the city as above quoted, where prohibition is not thereby unlawfully effectuated.

The power to 'impose license and occupational taxes' is a taxing power, and is to be exercised within the terms of the grant and subject to the constitutional provisions for the protection of property rights. No authority is expressly given to discriminate in the amount of license tax imposed upon those engaged in the same 'business conducted within the city limits.' Proper classifications may be...