Robinson v. Fix
| Decision Date | 06 December 1933 |
| Citation | 151 So. 512,113 Fla. 151 |
| Parties | ROBINSON, Constable v. FIX. |
| Court | Florida Supreme Court |
Error to Circuit Court, Polk County; H. G. Taylor, Judge.
Habeas corpus by S. S. Fix against J. E. Robinson, as Constable. An order discharging petitioner from custody, and respondent brings error.
Reversed.
COUNSEL Cary D. Landis, Atty. Gen., and Roy Campbell Asst. Atty. Gen., for plaintiff in error.
Robert T. Dewell, of Haines City, for defendant in error.
In habeas corpus proceedings in the circuit court for Polk county, the defendant in error here was discharged from custody on a charge made before a justice of the peace that he, 'being a resident of the State of Florida within the motor vehicle law of the State,' unlawfully operated an automobile without registration and a license, the defense being that he was a nonresident of the state of Florida and not subject to the license statute which exempts from its operation 'a motor vehicle owned by a non resident of this State, other than a foreign corporation doing business in this State.' On writ of error taken under the statute the matter to be determined is whether S. S. Fix was a nonresident of the state of Florida within the meaning and intent of section 1293 (1020), Compiled General Laws, when he was charged with violating that statute.
The stipulation contains the following:
In executing the statute the state authorities have interpreted it to apply to petitioner and others in like situation. Unless such interpretation is clearly wrong it will be regarded by the courts as being of great persuasive force and efficacy. Bloxham, Comp. v. Con. E. L. & S. R. Co., 36 Fla. 519, 18 So. 444, 29 L. R. A. 507, 51 Am. St. Rep. 44; Amos v. Mosley, 74 Fla. 555, 77 So. 619, L. R. A 1918C, 482; State ex rel. Comfort et al. v. Leatherman, 99 Fla. 899, 128 So. 21; Fawcus Machine Co. v. United States, 282 U.S. 375, 51 S.Ct. 144, 75 L.Ed. 397; United States v. Minnesota, 270 U.S. 181, 46 S.Ct. 298, 70 L.Ed. 539; United States v. Jackson, 280 U.S. 183, 50 S.Ct. 143, 74 L.Ed. 361; United States v. Cerecedo Hermanos y Compania, 209 U.S. 337, 28 S.Ct. 532, 52 L.Ed. 821.
'Under the law all real and personal property in the state, not expressly exempted therefrom, is subject to taxation, and all laws exempting property from taxation should receive a strict construction, and no property should be held to be within the exemption, unless it is clearly within the terms of the statute granting immunity from taxation.' Rast v. Hulvey, 77 Fla. 74, 75, 80 So. 750; 61 C.J. 393; 37 C.J. 237.
'Those who seek shelter under an exemption law must present a clear case, free from all doubt, as such laws, being in derogation of the general rule, must be strictly construed against the person claiming the exemption and in favor of the public.' 17 R. C. L. p. 522, § 42.
See, also, Camas Stage Co., Inc., v. Kozer, 104 Or. 600, 209 P. 95, 25 A. L. R. 27, headnote 10; 1 Cooley, Taxation (3d Ed.) p. 356; 1 Blashfield, Cyclopedia of Automobile Law, p. 74, § 7.
Warren v. Warren, 73 Fla. 764, text 785, 75 So. 35, 42, L. R. A. 1917E, 490; 9 R. C. L. 539; 19 C.J. 395.
"Residence' simply indicates place of abode whether permanent or temporary, whereas 'domicile' denotes fixed permanent residence to which when absent one intends to return. Terms 'domicile' and 'residence,' though frequently used synonymously, are not when accurately used convertible terms; 'domicile' being a more extensive signification as it includes beyond mere physical presence and particular locality positive or presumptive proof of intention to constitute it a permanent abiding place, whereas 'residence' has more limited, precise, and local application than 'domicile,' which is used more in reference to personal rights, duties, and obligations.' Minick v. Minick (Fla.) 149 So. 483, 484, headnote 7.
'A person may be a resident of more than one state for the purposes pertaining to the registration of motor vehicles.' Morse v. Lash Motor Co., 107 Conn. 137, 139 A. 637, headnote 2.
In defining the exemption from the operation of the motor vehicle license provisions extended to 'a motor vehicle owned by a non resident of this State,' the statute had reference to residence and not to citizenship or domicile. Automobiles are used on the public highways which are constructed and maintained at great expense by the state and its governmental units; and to maintain such highways license and other taxes are imposed upon the operation of such motor vehicles on the highways in the state. The license period may be for an entire year. Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222. Mr. Fix may be a citizen of or have his domicile in another state and yet, during the five months he is employed in this state each year, be aresident of Florida within the meaning and intent of the statute. He is not a mere visitor for a short period, but engages in business while residing in Florida each year. If he is employed in and resides in the state five months each year as he stipulates, he has all the privileges of using his automobile on the highways in the state as other residents have during the license period.
It is stipulated that he is employed in Indiana 'for approximately five months each year and is likewise employed in * * * Florida * * * for approximately five months each and every year and resides in each state while he is so employed, he spending the two months when unemployed for the most part in the State of Indiana.' He was charged in March, 1933, with violating the state statute during the period in which he was employed in and residing in Florida. When Mr. Fix was charged with violating the statute he was a resident and not 'a nonresident of this State' within the meaning of section 1293 (1020), Compiled General Laws, which exempts from the license provisions of the motor vehicle regulation statutes 'a motor vehicle owned by a nonresident of this State.'
Reversed.
DAVIS C.J., disqualified.
DISSENTING
The defendant in error being under arrest, charged with violating the law of Florida by operating an automobile on the public highways of this state without having procured a state license tag for the year 1933, sued out writ of habeas corpus. On return being made, a stipulation of facts was entered into between the parties, and upon this stipulation the cause was presented to the circuit judge, and thereupon the circuit entered an order and judgment discharging the petitioner from custody. To this judgment writ of error was sued out.
The stipulation is as follows:
'1. That S. S. Fix is a citizen of the State of Indiana.
'2. That by occupation the said S. S. Fix is an expert in the operation of canning machinery and in the operation of canneries.
'3. That S. S. Fix is employed in the State of Indiana in the canning business for approximately five months each year and is likewise employed in the canning industry in the State of Florida and County of Polk for approximately five months each and every year and resides in each State while he is so employed, he spending the two months when unemployed for the most part in the State of Indiana.
'4. That S. S. Fix is the owner of property located in the State of Indiana which property remains in the State of Indiana with the exception of certain personal effects and an automobile which he brings with him each year to the State of Florida, and keeps with him and uses when in the State of Florida.
'5. That S. S. Fix owns a motor vehicle, towit: an automobile and he for the year 1933 complied with the provisions of the...
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