Osborne v. State

• Citation: 33 Fla. 162,14 So. 588
• Parties: OSBORNE v. STATE.
• Decision Date: 16 January 1894
• Court: Florida Supreme Court

14 So. 588

33 Fla. 162

OSBORNE v. STATE.

Florida Supreme Court

January 16, 1894

Error to circuit court, Duval county; R. M. Call, Judge.

Petition in habeas corpus by F. R. Osborne for release from custody on a charge of acting as agent for an express company without having procured a license. From a judgment denying the petition, petitioner brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. A state cannot tax or regulate interstate commerce, or make the payment of a tax or the taking out of a license a condition precedent to carrying on interstate commerce. A state statute which does so, either expressly or in effect, is offensive to the commerce clause of the constitution of the United States and void at least to that extent. The same is true as to foreign commerce.

2. A state statute which imposes a tax, in general terms, on the doing of specified kinds of business, or the pursuit of designated occupations, in the state, and requires that a license shall be taken out before any such business or avocation shall be done or engaged in, should not be construed to apply to any business of the kind that may constitute interstate commerce, but only to business that is domestic or state commerce, and to persons engaged, or intending to engage, in such domestic or state business.

3. Although interstate commerce cannot be taxed or regulated by state legislation, and the commerce clause of the federal constitution exempts all such commerce from regulation or taxation by state authority, yet the doing of business that constitutes interstate commerce, by a person who is also, at the same time, engaged in business of the same kind that constitutes state or local commerce, cannot be made a bar or exemption of the local or state commerce business from taxation or regulation by state authority.

4. The ninth section of the general revenue law of 1893, c. 4115 (approved June 2, 1893,) provides that no person shall engage in or manage the business, profession, or avocation mentioned therein without first taking out a state license, as provided therein, and paying the occupational tax and license fee prescribed thereby; and it authorizes counties and incorporated cities and towns to impose further taxes. As to express companies its special provisions, substituting figures for words, are as follows: 'All express companies doing business in this state shall pay in cities of fifteen thousand inhabitants or more, a license tax of $200; in cities of ten thousand to fifteen thousand inhabitants, $100 in cities of five to ten thousand inhabitants, $75; in cities of three thousand to five thousand inhabitants, $50; in cities of one thousand to three thousand inhabitants, $25; in towns and villages of less than one thousand and more than fifty inhabitants, $10.' Any express company violating these provisions, or any person that knowingly acts as agent for any express company before it has paid the tax payable by such company, is guilty of a misdemeanor, and punishable as therein provided. Held: (a) The act does not tax or regulate or apply to interstate commerce, as distinguished from state or local commerce carried on by an express company, but applies only to express business that is local or state commerce. (b) That so long as an express company confines its operations to express business that constitutes interstate or foreign commerce it is exempt from the above legislation; but if it engages in business that is state or local, as distinguished from interstate or foreign, commerce, it becomes subject to the statute, notwithstanding it may at the same time engage in interstate or foreign commerce. (c) The effect of the section, in so far as it imposes license taxes on express companies, is that each company doing any business that constitutes local or state commerce, as contradistinguished from interstate of foreign commerce shall pay a state license tax, and take out a state license when it proposes to do business in any city or town or village having more than 50 inhabitants, the amount of such tax being, as above indicated, according to the population. When there are, in one county, everal cities or towns or villages belonging to one or more of the stated classes, the company must take out a separate state license for each city, town, or village it may intend to do business in, and pay the tax and the fee for the same. Any county may require each company doing business within its limits to pay, for doing business in any city, town, or village in the county, and within the provisions of the act, a license tax not exceeding 50 per cent. of the amount paid the state for doing business in such city, town, or village; and any incorporated city or town may impose a tax of as much as 50 per cent. of the state tax on any company doing business therein. (d) That the amount of the tax is not shown to be prohibitory or destructive of the business of express companies, even if it be that any judicial action could be based on such a showing. (e) The act is of uniform operation throughout the state as to all persons standing in the situation made the test of such taxation. (f) The ascertainment of population involved in the act is not one that the courts are incapable of dealing with successfully.

COUNSEL

John E. Hartridge, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

The other facts fully appear in the following statement by RANEY C.J.:

Section 9 of chapter 4115 of the Laws approved June 2, 1893, provides that 'no person shall engage in or manage the business, profession or occupation mentioned in this section, unless a state license shall have been procured from the tax collector, which license shall be issued to each person on receipt of the amount hereinafter provided, together with the county judge's fee of twenty-five cents for each license, and shall be signed by the tax collector and the county judge, and have the county judge's seal upon it. Counties and incorporated cities and towns may impose such further taxes of the same kind upon the same subjects as they may deem proper, when the business, profession or occupation shall be engaged in within such county, city or town. The tax imposed by such city, town or county shall not exceed fifty per cent. of the state tax. But such city, town or county may impose taxes on any business, profession or occupation not mentioned in this section, when engaged in or managed within such city, town or county. No license shall be issued for more than one year, and all licenses shall expire on the first day of October of each year, but fractional licenses, except as hereinafter provided, may be issued to expire on that day at a proportionate rate, estimating from the first day of the month in which the license is so issued, and all licenses may be transferred, with the approval of the comptroller, with the business for which they were taken out, when there is a bona fide sale and transfer of the property used and employed in the business as stock in trade; but such transferred license shall not be held good for any longer time, or for any other place, than that for which it was originally issued.'

The same section, in various subdivisions, then enumerates divers business occupations and professions that are required to procure licenses, and prescribes the amount of tax that each shall annually pay therefor, until we reach the wtwelfth subdivision of the section, that provides, among other things, that 'all express companies doing business in this state, shall pay in cities of fifteen thousand inhabitants or more, a license tax of two hundred dollars; in cities of ten thousand to fifteen thousand inhabitants, one hundred dollars; in cities of five thousand to ten thousand inhabitants, seventy-five dollars; in cities of three thousand to five thousand inhabitants, fifty dollars; in cities of one thousand to three thousand inhabitants, twenty-five dollars; in towns and villages of less than one thousand and more than fifty inhabitants, ten dollars. Any express company violating this provision, and any person that knowingly acts as agent for any express company before it has paid the above tax, payable by such company, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than fifty dollars, or confined in the county jail not less than six months.' Besides the criminal penalty above, section 10 of the same act provides that 'the payment of all license taxes may be enforced by the seizure and sale of the property by the collector.' For an alleged violation of this statute, in knowingly acting as agent at Jacksonville, in Duval county, Fla., for the Southern Express Company, a corporation created under the laws of the state of Georgia, but doing business in Florida without having paid such license, F. R. Osborne, the plaintiff in error, was arrested upon affidavit and warrant, and required to give bond for his appearance before the criminal court of record for Duval county to answer said charge. Upon his refusal to give such bond he was committed to the common jail of the county, there to await trial, whereupon he applied to the judge of the circuit court for the writ of habeas corpus to test the legality of his arrest and detention. Upon the hearing on habeas corpus the arrest and detention of the plaintiff in error on the charge alleged against him under this statute were adjudged to be legal, and he was remanded to the custody of the sheriff, and this order he brings here for review by writ of error.

The cause was submitted to the court below upon the following agreed statement of facts: 'That the said F. R. Osborne is the agent of the Southern Express Company, and that said company is a corporation...