Olan Mills Inc. of Ala. v. City of Tallahassee

• Decision Date: 23 December 1949
• Citation: 43 So.2d 521
• Parties: OLAN MILLS INCORPORATED OF ALABAMA v. CITY OF TALLAHASSEE.
• Court: Florida Supreme Court

Page 521

43 So.2d 521

OLAN MILLS INCORPORATED OF ALABAMA v. CITY OF TALLAHASSEE.

Supreme Court of Florida, en Banc.

Dec. 23, 1949.

Rehearing Denied Jan. 18, 1950.

J. Velma Keen, Chas. H. Spitz and Keen, O'Kelley & Spitz, Tallahassee, for appellant.

James Messer, Jr., Tallahassee, for appellee.

HOBSON, Justice.

The appellant (plaintiff in the court below) filed its bill of complaint in the Circuit Court in and for Leon County, Florida, against the appellee, the City of Tallahassee (defendant below).

The bill of complaint alleged:

'1. That appellant is an Alabama corporation with its principal place of business in Tuscaloosa, Alabama, and the appellee is a municipal corporation under the laws of Florida.

'2. That appellant is engaged in the business of photography and conducts its business in the following manner: Under the direct supervision of the home office of the corporation in Tuscaloosa, Alabama, an advance sales unit composed of from two to five traveling solicitors canvasses or solicits orders in a municipality for photographs. All orders are taken for future delivery to be manufactured, processed and finished in Tuscaloosa, Alabama. At the time an order is taken an advance deposit of fifty (50cents) cents is collected, which is retained by the solicitor as part of his compensation; the customer is given a duplicate copy of the order, and is notified when and where to appear to have a 'sitting' or 'exposure' made. The order is then delivered to the traveling cameraman an employee and under the direct supervision of the corporation, who usually arrives in the municipality a few days after the orders are taken by the solicitor.

'At the appointed time and place (usually a leading hotel in the municipality) the traveling cameraman takes the 'sitting' or 'exposure'. At the time of such 'sitting' an additional deposit of fifty (50cents) cents is collected. For the one dollar total deposit which has been made the customer becomes entitled to receive one 8 X 10 unmounted photograph from a proof to be selected by the customer. The order, the exposed negatives made at the 'sitting' or 'exposure' with the fifty cents deposit, are then sent by mail to the home office of the corporation in Tuscaloosa, Alabama, where the order is accepted or rejected, and if rejected the total deposit of $1.00 is returned to the customer. The negatives are develped, processed, and the proofs manufactured developed, processed, and the proofs manufactured The proofs are then sent from the home office at Tuscaloosa, Alabama, by mail to another traveling representative of the corporation temporarily in the municipality, and who is under the direct supervision of the home office of the corporation.

'The customer is thereupon notified by mail from the home office of the day and place to meet the traveling representative of the corporation for the purpose of selecting the proof for the picture, to which the customer has become entitled, and for the purpose of ordering such additional pictures as the customer shall desire, if any. All orders for additional pictures are taken subject to the acceptance or rejection of such orders by the home office in Tuscaloosa, Alabama. The traveling representative of the corporation then sends by mail to the home office the proof selected by the customer and the order for additional pictures, if any. The picture to which the customer is entitled is then sent by mail to the customer and if the order for additional photographs is accepted, such additional photographs are mailed to the customer C. O. D., and included in the C. O. D. package is the picture to which the customer is entitled.

'3. That plaintiff, in its operations in Tallahassee, would have an advance sales unit of approximately four persons who would solicit orders in the City for a period of from three to four weeks; that thereafter a traveling cameraman would take the exposures of the persons from whom orders had been solicited and that such traveling cameraman would be in the City for approximately one week; thereafter another traveling representative of the appellant would be in the City approximately one to two weeks for the purpose of submitting proofs to customers and for the taking of orders for additional photographs; that the entire operation of the appellant as outlined would take place in the City of Tallahassee on an average of three times each year.

'4. That appellant is ready to do business in the City of Tallahassee and except for a City Ordinance of such City, would now and in the future do business in Tallahassee.

'5. That the appellee has enacted Ordinance No. 531 imposing occupational license taxes. That under such Ordinance the appellant would be required to pay a license tax of $50.00 for each of its agents, solicitors, or representatives for each week or portion of each week during which such of its agents, solicitors, or representatives worked in the City of Tallahassee; whereas, a photographer who maintains a studio or place of business in Tallahassee, conducting the same type of business, regardless of the number of solicitors, agents, representatives, or employees employed, is only required to pay a license tax in the amount of $25.00 per year. In addition thereto the appellant would be required to post a $1,000.00 bond with the City of Tallahassee, conditioned upon the faithful performance by the appellant of all obligations incurred by it as such transient photographer and in connection with solicitations as may be made in the City of Tallahassee to the end that the public may be protected against loss on account of any fraud or misrepresentation by the appellant, while no security bond whatsoever is required of photographers who maintain a studio or place of business in the City of Tallahassee.

'6. That appellant's activities above described constitute interstate commerce and the ordinance imposes an undue burden on and discriminates against such commerce.

'7. That the ordinance discriminates between appellant and local photographers solely on the basis of residence.

'8. That the license tax under the ordinance is excessive, arbitrary and unreasonable on its face and in effect deprives appellant of the privilege of doing business in Tallahassee without due process of law.

'9. That there is no reasonable basis for the excessive, arbitrary and unreasonable difference in the amount of the license tax sought to be imposed upon the appellant and the license tax imposed on the local photographer who regularly maintains a place of business in Tallahassee; that the excessive amount of the tax sought to be imposed upon the appellant, as compared with the small amount of the tax imposed upon the local photographer, is beyond the necessities required for regulating the appellant's business and is not a regulation of such business but a prohibition to the doing of such business.

'10. That such ordinance is invalid as to the appellant in that the classification of the appellant is arbitrary and unreasonable.

'11. Appellant, in view of such excessive and discriminatory license tax is, in effect, prohibited from doing business in Tallahassee and thereby suffers irreparable loss and damage; that if appellant should attempt to operate in Tallahassee without paying such license tax, all of its agents and employees representing it in the City of Tallahassee would be subject to criminal prosecution under the provisions of Section 773 of the City ordinances and its equipment would be seized and sold by the appellee under the provisions of such Section.'

The bill then prays for a temporary injunction and for the entry of a permanent injunction upon final hearing.

To the bill of complaint the appellee filed a motion to dismiss. This motion, in effect, challenged the legal sufficiency of the bill and took issue with the conclusion that the ordinance under attack...