State Ex Rel. Hughes v. Wentworth

• Decision Date: 16 December 1938
• Citation: 185 So. 357,135 Fla. 565
• Parties: STATE ex rel. HUGHES v. WENTWORTH, Tax Collector.
• Court: Florida Supreme Court

185 So. 357

135 Fla. 565

STATE ex rel. HUGHES v. WENTWORTH, Tax Collector.

Florida Supreme Court, Division B.

December 16, 1938

Original mandamus proceeding by the State on the relation of Charles E. Hughes, against T. T. Wentworth, Jr., as Tax Collector of Escambia County, commanding the tax collector to issue without being required to pay therefor a license to the petitioner authorizing him to operate for profit a place where dancing is engaged in. On motion to quash an alternative writ of mandamus.

Motion granted.

THOMAS J., dissenting.

COUNSEL Philip D. Beall, Jr., of Pensacola, for petitioner.

H. O Pemberton, of Tampa, for respondent.

OPINION

PER CURIAM.

This cause is before us on motion to quash an alternative writ of mandamus commanding the tax collector of Escambia County to issue, without being required to pay therefor, a license to the petitioner, a resident of said county, authorizing him to operate for a profit a 'place where dancing is engaged in' (for which a State license of $100 is imposed by section 23 of chapter 18011, Acts of 1937 and a county of license of $50 is imposed by section 2 of the same act) upon the ground that he is exempted from paying for such license by section 27 of said Act.

The application for such 'exempt license,' a copy of which is attached to and made a part of the alternative writ was accompanied by certificates of two reputable physicians practicing in Escambia County which stated that petitioner was a confirmed invalid, incapable of performing manual labor. The application also had attached thereto an affidavit of the petitioner stating that he owned and operated in said county a place where dancing was engaged in for a profit, and that in the operation of said place the petitioner used his own money or capital only, which said sum so used did not and does not exceed the sum of three hundred follars. The petition and alternative writ further allege that petitioner has paid all licenses imposed upon him in the pursuit of said business or operation of said place by the statutes of this State other than those sought to be imposed upon him by the provisions of said chapter 18011.

The question here involved is whether or not the legislature intended that the exemption allowed by section 27 of chapter 18011 should apply to persons who operate for a profit any place where dancing is engaged in, etc., upon which a license is imposed by said section 23 of the Act.

The pertinent portions of section 23 are as follows:

'Section 23. Every person who operates for a profit any place where dancing is engaged in or entertainment such as variety programs or exhibitions, is provided, shall pay a license tax of $100.00. The license required by this section shall be in addition to any other license required by law and the operation of such a place as herein described shall not be construed to be incidental to some other business provided, that a license may be issued for one night only, upon the payment of twenty-five dollars, but in such cases the Tax Collector must write across the license the words, 'Good for one night only."

Section 27 reads as follows:

'Section 27. All confirmed cripples, deaf and dumb persons, or invalids physically incapable of manual labor, and all Confederate Veterans of the Civil War, and who use their own capital only, not in excess of three hundred dollars, shall be allowed to engage in any business or occupation in Counties in which they live without being required to pay for a license; except that this exemption shall not apply to any of the occupations specified in Section 22. The exemption provided by this section shall be allowed only upon the certificate of the County Physician, or other reputable physician, that the applicant claiming the exemption is a confirmed cripple or invalid, the nature and extent of the disability being specified therein, and in case the exemption is claimed by a Confederate Veteran of the Civil War proof of his right to the exemption shall be made. Any person entitled to the exemption provided by this Section shall, upon application and the furnishing of the necessary proof as aforesaid, be issued a license which shall have plainly stamped or written across the face thereof the fact that is issued under this section, and the reason for the exemption shall be written thereon. Disabled veterans of the World War and the Spanish War shall be allowed the same exemptions as are now allowed by law.'

Section 22, referred to in section 27, reads:

'Section 22. Every fortune teller, clairvoyant, palmist, astrologer, phrenologist, character reader, spirit medium, absent treatment healer, or mental healer, and every person engaged in any occupation of a similar nature shall pay a license tax of $100.00: Provided, that this section shall not be construed to require members of any recognized Christian Denomination who pray for the sick, to obtain a license.'

The words in Section 23 of the statute, 'and the operation of such a place as herein described shall not be construed to be incidental to some other business,' was evidently placed therein so as to avoid any misconstruction of the legislative intent by reason of the language in the last paragraph of section 5 of the act to the effect that no license shall be required under that section where the trading in or selling of tangible personal property is 'a necessary incident' of some other business classification for which an occupational license is required and which is carried on at the place of business licensed under such other classification.

In support of the motion to quash the alternative writ it is argued that, in the enactment of chapter 18011, the legislature imposed licenses on various activities and it is to be noted that each and every section of the act imposing a license refers to the activity as a 'business or occupation' with the exception of sections 14, 16, 17, 19, 20 and 23. Section 14 refers to renting advertising space in or on boats, cars, busses, trucks or other vehicles. It is argued that this is not a business or occupation in the sense contemplated by the exemption provision for the reason that the business is the operation of the boat line, street car line or other vehicles on which advertising matter can be placed. Section 16 refers to persons who travel from place to place purchasing junk, and it is argued that this section would apply to any one who might take a truck and go from place to place purchasing junk, even though they were purchasing it entirely for their own use. Section 17 refers to the owners of toll bridges and it is argued that the license is apparently imposed on the ownership of the bridge and not on a business or occupation. Section 19 refers to the operation for profit of coin-operated devices, and it is argued that as such devices are operated in connection with some other business the manwith a store in which such a device is operated is not engaged in the business of operating the device but is simply charged for the privilege of maintaining this instrumentality, and that section 20, imposing licenses on the operation for a profit of amusement devices, falls in the same category as section 19. It is further contended that, as to section 23, with which we are here particularly concerned it is evident from the language of this section that the legislature recognized the operation for a profit of a place where dancing is permitted, not as a business or occupation per se, but as an instrumentality or activity, used in connection with various businesses, which activity constituted an evil on which an unusually high...