Myers v. City of Miami

• Citation: 131 So. 375,100 Fla. 1537
• Parties: MYERS v. CITY OF MIAMI.
• Decision Date: 19 December 1930
• Court: United States State Supreme Court of Florida

131 So. 375

100 Fla. 1537

MYERS v. CITY OF MIAMI.

Florida Supreme Court

December 19, 1930

Commissioners' Decision.

Certiorari to Circuit Court, Dade County.

H. L Myers was convicted in the municipal court of violating an ordinance of the City of Miami requiring a license for conducting business, which conviction was affirmed by the circuit court, and he brings certiorari.

Judgment of circuit court affirming municipal court judgment quashed.

COUNSEL

Shutts & Bowen, J. F. McPherson, and Herbert S Sawyer, all of Miami, for petitioner.

J. W. Watson, Jr., of Miami, for respondent.

OPINION

MATHEWS C.

This case is here upon certiorari to the circuit court of Dade county, Fla., to review a judgment of that court affirming a judgment of the municipal court of the city of Miami against the petitioner in which he was convicted of conducting a business in the city of Miami contrary to section 5 of Ordinance 471 of said city, without having first obtained a license, and was sentenced to pay a fine of $100 and costs or to serve 60 days in jail.

Section 5 of Ordinance 471 of the city of Miami provides as follows:

'Every business, occupation, profession, or exhibition, substantial, fixed or temporary, engaged in by any person, firm or corporation, whether in a building, tent, or upon the street, vacant lot, or anywhere in the open air, within the city, and not herein specifically designated, shall pay a license fee of $25.00.'

The testimony in behalf of the city of Miami shows that an office was maintained in the Seybold building, in the city of Miami, consisting of two rooms, opening from the hallway, upon the door of which were the words, 'Real Silk Hosiery Mills of Indianapolis, Indiana,' and in which offices were located desks, stenographers, telephones, files, cabinets, order books, and boxes of hosiery and other stuff; that the offices were open, and they (it does not appear whom) were advertising for salesmen practically every Sunday; that the petitioner, H. L. Myers, was the branch manager of Real Silk Hosiery Mills of Indianapolis, Ind.; that he had been requested to pay the city license tax and had refused so to do.

Testimony of the petitioner showed that H. L. Myers was the branch sales manager of Real Silk Hosiery Mills, Inc., of Indianapolis, Ind.; that Real Silk Hosiery Mills, Inc., is a corporation of the state of Illinois, having and maintaining its principal office and place of business in the city of Indianapolis, Ind.; that Myers and those employed by him at the office in the Seybold building, were employees of the Real Silk Hosiery Mills of Indianapolis, Ind., and acted as its agents in soliciting orders for it; that petitioner has a written contract of employment with Real Silk Hosiery Mills of Indianapolis, Ind., under and pursuant to which all the transactions in the Seybold building were had; that petitioner does not and never has transacted at those offices and other business than that of the Real Silk Hoisery Mills of Indianapolis, Ind.; that the Real Silk Hoisery Mills of Indianapolis, Ind., is engaged in the manufacture and sale of wearing apparel direct to the consumer, the orders for which are solicited by the petitioner and the persons employed by him for the Real Silk Hosiery Mills of Indianapolis, Ind., and are mailed direct to Indianapolis and are shipped by the Real Silk Hosiery Mills to the purchaser by parcel post, C. O. D.; and that the compensation of the petitioner is paid by check direct from the Real Silk Hosiery Mills at Indianapolis, Ind.

Article 1, § 8, of the Constitution of the United States, provides among other things that:

'The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.'

The question to be determined is whether the ordinance of the city of Miami, as applied to the facts of this case, is invalid, as an attempt to impose a burden upon interstate commerce.

A municipality cannot by ordinance lawfully impose a burden upon interstate commerce. Wilk v. Bartow, 86 Fla. 186, 97 So. 307.

In Ferguson v. McDonald, 66 Fla. 494, 63 So. 915, the city of Miami, Fla., imposed a tax of $100 per year upon certain business occupations and persons conducting or managing such concerns. The Western Union Telegraph Company was taxable under such ordinance, and, not having paid the tax, its agent at Miami was arrested. After conviction, he applied for release under habeas corpus and was discharged. The city appealed and claimed that the tax in question was against the purely local business done within the city of Miami, and did not apply to the interstate commerce business of the said telegraph company in which said agent was engaged. It was held that the tax as imposed was not excessive or unreasonable as being a tax upon the intrastate business conducted in the city of Miami, and that a state or municipal government in the state could tax as a franchise or privilege the doing of domestic business by a telegraph company which was also engaged at the same time and place in conducting interstate commerce business; but the court clearly indicated that, if such tax could be held as a matter of law to apply as a burden upon interstate commerce business, the ordinance imposing the tax would be invalid.

In Cason v. Quinby, 60 Fla. 35, 53 So. 741, the facts agreed upon were substantially that the petitioner was an agent and traveling salesman of the Aluminum Cooking Utensil Company of Pittsburg, Pa.; that his business was to canvass for the company, taking orders for goods by showing samples. When orders were taken, he sent the order to the company at Pittsburg, Pa., and when he received the goods, he delivered them to the customers, received the money therefor, and remitted it to the company in Pennsylvania. The goods were the property of the company until they were paid for and delivered. The agent received a salary from the company and no commission no sales. He formerly lived in Virginia, but had no permanent home. He had been in Florida for four or five years. The goods were sold on orders taken by showing samples. The goods were sent to the agent by the company in Pittsburg, Pa., pursuant to orders sent in from Lake City, Fla., being packed together in a large package or box, such package or box containing the smaller package of each customer wrapped to itself; the large package was broken by the agent at Lake City, Fla., and he delivered the smaller packages to the customers and received the money therefor.

In that case it was held that the business was interstate commerce, and that the ordinance of Lake City therein involved as applied to the facts of that case was a burden upon interstate commerce and invalid.

In Wilk v. City of Bartow, supra, the petitioner sold brushes manufactured by the Fuller Brush Company at Hartford, Conn. His method of doing business was to go from house to house in the city of Bartow and display samples of his goods to prospective purchasers, solicit orders, and make sales at retail prices direct to the purchaser. If a sale was effected, an order was made describing the goods. Upon this order there was a place for the customer's signature, but it was not the practice of the petitioner to have the customer sign the order. At the end of each week, petitioner compiled a sales representative's order, upon which order articles sold during the week were enumerated. The order was mailed to the company's distributing station, at Savannah, Ga. Upon receipt of the order, said distributing station made up and shipped to petitioner a package containing the articles enumerated, which articles were loosely packed in one container; the different orders of individual customers not being separated. Upon receipt of shipment, the petitioner opened the package, selected from the mass of articles therein the several articles called for on individual orders, and personally delivered same to each purchaser, collecting the purchase price, retaining 40 per cent. as his compensation, and remitting the remainder to the company at Savannah. Daily reports were made by the petitioner to the district manager of the company at Tampa of prospective purchasers called on by him, but no remittance was made to him, and he had no oversight of accounts between the petitioner and the company. The operations of petitioner were covered by a contract of employment between the Fuller Brush Company and himself. The petitioner was not a regularly licensed merchant, and had not taken out any license to do business in the city of Bartow.

It was held in that case that the transactions were interstate commerce, and that the ordinance of the city of Bartow there involved, as applied to the facts of that case, was invalid as a burden upon interstate commerce.

In Real Silk Hosiery Mills, Inc., v. City of Portland, 268 U.S. 325, 45 S.Ct. 525, 526, 69 L.Ed. 982, by a bill filed in the United States District Court, plaintiff Real Silk Hosiery Mills, Inc., challenged an ordinance of the city of Portland defining solicitors and requiring them to pay license and give bond, and asked that enforcement of the ordinance be restrained as against its solicitors upon the ground, among others, that it interfered with and burdened interstate commerce and was repugnant to article 1, § 8, of the Federal Constitution. In that case the method and manner of conducting the business of Real Silk Hosiery Mills, Inc., appears to have been identical with the case at bar. The District Court upheld the ordinance. 294 F. 587. Its decree was affirmed by the Circuit Court of Appeals, 297 F. 897. But the case was reversed by the Supreme Court of the United States (Real Silk Hosiery Mills, Inc., v. City of Portland, supra), where it...