Roach v. Ephren

• Decision Date: 20 December 1921
• Citation: 90 So. 609,82 Fla. 523
• Parties: ROACH, Chief of Police v. EPHREN.
• Court: Florida Supreme Court

90 So. 609

82 Fla. 523

ROACH, Chief of Police v. EPHREN.

Florida Supreme Court

December 20, 1921

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Proceedings in habeas corpus by Fred Ephren against Frederick C. Roach as Chief of Police of the City of Jacksonville, to procure petitioner's release from custody. Petitioner descharged and the Chief of Police brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Legislative power to tax licenses is subject to the due process and equal protection clauses. There is no express limitation of the power of the Legislature to provide for a tax on licenses but the organic requirements of due process and equal protection of the laws should be observed in levying or in authorizing the levy and collection of license taxes.

Every act through ordinances should be within powers expressly or impliedly conferred and not in violation of law. 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.

Legislature may not give municipalities full power possessed by state relating to license taxes. In exercising the express authority 'to prescribe the jurisdiction and powers' of municipalities, the Legislature is not empowered to confer upon municipalities authority to impose any and all license taxes within the municipality that the Legislature could enact for state purposes.

Reasonableness of ordinance, but not of statute, subject to judicial determination. The reasonableness of a statute is not open to judicial review unless organic law is thereby violated; but the reasonableness of a municipal ordinance is subject to judicial determination.

$2,500 wholesale peddler's license tax held unreasonable. Even if a municipal license tax of $2,500 imposed on wholesale peddlers, when considered with the license tax of $75 imposed on retail peddlers, is not so arbitrary and excessive as to amount to a denial to the former of the equal protection of the laws, the wholesale peddler's license tax is clearly unreasonable, in that, no question of public health, morals, or safety being involved, the difference in the license tax imposed on wholesale peddlers and retail peddlers is so great that it can have no fair relation to differences between the business done by the two peddlers.

Power to restrain and punish forestalling and regrading of provisions held not to warrant discriminatory wholesale peddlers' license tax. The charter powers of a city 'to restrain and punish the forestalling and regrading of provisions' does not warrant an arbitrary and grossly unreasonable discrimination in imposing license taxes.

COUNSEL P. H. Odom, Le Sueur Gaulden, and L. W. Strum, all of Jacksonville, for plaintiff in error.

Miles W. Lewis, of Jacksonville, amicus curiae.

OPINION

WHITFIELD J.

In habeas corpus proceedings it appears that Fred Ephren was held in custody under a conviction in the municipal court of the city of Jacksonville, Fla., for violating a city ordinance imposing a penalty of fine or imprisonment for conducting the business of a wholesale peddler without first obtaining a $2,500 license therefor; that the ordinance defines a wholesale peddler to be one who engages in selling produce, vegetables, or fruit to others than the consumers from a vehicle or other than a fixed place of business, provided producers may sell produce grown or produced by themselves; that retail peddlers are required to pay a license tax of only $75. In discharging the petitioner from custody the court incorporated in its judgment the following:

'(1) It is found that the license tax of $2,500 imposed

...