State Ex Rel. Lawson v. Woodruff

• Decision Date: 21 October 1938
• Citation: 184 So. 81,134 Fla. 437
• Parties: STATE ex rel. LAWSON v. WOODRUFF, Chief of Police.
• Court: Florida Supreme Court

184 So. 81

134 Fla. 437

STATE ex rel. LAWSON v. WOODRUFF, Chief of Police.

Florida Supreme Court, Division B.

October 21, 1938

Error to Circuit Court, Hillsborough County; Harry N. Sandler Judge.

Habeas corpus proceedings by the State of Florida, on the relation G. R. Lawson, against C.J. Woodruff, as Chief of Police of the City of Tampa, Florida. To review a judgment remanding the petitioner to the custody of the Chief of Police petitioner brings error.

Affirmed.

COUNSEL

Baya & Baya, of Tampa, for plaintiff in error.

Alonzo B. McMullen, Ralph A. Marsicano, and M. Henry Cohen, all of Tampa, for defendant in error.

OPINION

WHITFIELD Presiding Justice.

The writ of error herein was allowed and taken from a final order or judgment in habeas corpus proceedings remanding the petitioner to the custody of the Chief of Police of the City of Tampa, Florida, who stated in his return to the writ of habeas corpus that petitioner was arrested 'for and upon an offense committed in the presence of the police officers of the City of Tampa, and a charge was entered against him on the docket of the Municipal Court of the City of Tampa, Florida.'

The docket entry referred to is shown by the transcript to be as follows:

'Entry Appearing on Docket of Police Department of the City of Tampa

'On the 31st day of May, A. D. 1937, one George R. Lawson, as an officer or agent of Ira A. Watson, Inc., did unlawfully advertise and conduct a sale of merchandise at 202 South Franklin Street in the City of Tampa, Florida, and did represent and advertise the same as a fire sale without having first filed with the Tax Collector of the City of Tampa an inventory of the merchandise to be offered for sale at said sale together with the wholesale price thereof and without first having applied for and paid or caused to be paid a City license to conduct said sale as required by Section 1 of Ordinance No. 474-A of the City of Tampa, Florida, and in violation of the terms and requirements of said Ordinance.'

Petitioner filed an answer to the return to the writ of habeas corpus, in which he admits his arrest under Ordinance No. 474-A of the City of Tampa, 'and admits that a charge was entered against him on the Docket of the Municipal Court of Tampa, Florida, as alleged in Paragraph One of the return, but petitioner denies that the Ordinance No. 474-A is a valid Ordinance, and denies that said Docket charge constitutes a valid legal charge against petitioner, and denies that this petitioner has committed any criminal offense whatsoever.'

As the petitioner admits he was arrested for a violation of the city ordinance, though he challenges the validity of the ordinance, the question of the validity of the arrest and detention on the docket charge need not be considered.

Pertinent parts of the City Ordinance No. 474-A are:

'Whereas, there are and for some time past have been persons, firms or corporations engaged in conducting bankrupt, trustee, receivership, insolvent, insurance, fire, water damaged, * * * and other similar stock, and,

'Whereas, such sales are in many instances so conducted through the practice of subterfuge and deceit as to result in fraud, and

'Whereas, it is deemed necessary to regulate and license such sales in order to promote the peace, welfare and prosperity and morals of this City, Now, Therefore,

'Be it ordained by the Board of Representatives of the City of Tampa:

'Section 1. It shall be unlawful for any person, firm or corporation within the City of Tampa, Florida, to advertise or conduct any sale of goods, wares or merchandise that is represented as bankrupt, trustee, receivership, insolvent, insurance, fire, water damaged, closing out, closing stock, manufacturers, manufacturers' outlet, executors, administrators, jobbers, wholesalers, adjusters, liquidation, removal, distressed or other similar sale of goods, wares and merchandise, or any other sale wherein by representation or advertisement it is intended to lead the public to believe that the person, firm or corporation so conducting such sale is selling the goods, wares and merchandise so offered for sale at less than the current or going retail price thereof, without first obtaining from the Tax Collector of the City of Tampa, a license so to do, and, at the time of applying for said license, filing with the said Tax Collector an inventory containing a complete and accurate list of all of the goods, wares and merchandise to be offered for sale at said sale, together with the wholesale price thereof, which inventory shall be signed by the person seeking the license where the same is sought by an individual, and by a member of the firm seeking the license where the license is sought by a firm, and by an officer of the corporation where the license is sought by a corporation, and the person so signing shall execute an affidavit to the effect that the inventory so submitted contains a full, true and accurate list of the goods, wares, and merchandise to be offered for sale, and that the wholesale price stated therein is the true current wholesale price thereof, and whether the applicant for said license has been engaged in the sale of goods, wares and merchandise at the same location where the sale is proposed to be held and the length of time during which the applicant has been engaged in business at said location prior to applying for said license.

'Section 2. Applicants for licenses under the provisions hereof shall be classified as Itinerants and Non-Itinerants. Itinerants shall be those persons, firms or corporations who shall not have been engaged in business at the location where the sale is proposed to be held at least one (1) year immediately preceding the making of the application for said license, and Non-Itinerants shall be those persons, firms or corporations who shall have been engaged in business at the location where the said sale is proposed to be held for one (1) year or more, immediately preceding the making of said application for said license.

'Section 3. No license shall be issued to any person, firm or corporation to conduct a sale of the nature contemplated in section 1 hereof for a period of less than ten (10) days, nor more, than sixty (60) days.

'Section 4. The fee for such license, when issued to an itinerant licensee, shall be and the same is hereby fixed as follows: For a period of ten (10) days $25.00 per day; for a period of more than ten (10) days $25.00 per day for the first ten (10) days and $10.00 per day for each additional day, and it is further provided that the license fee for the duration of the sale shall be paid in advance and upon the issuance of the said license. The fee for such license to a Non-Itinerant licensee shall be, and the same is hereby fixed at the sum of $10.00 for the duration of the sale, which fee shall be paid to the Tax Collector in advance and upon the issuance of said license.'

Plaintiff in error in effect contends that the city ordinance requiring a special license, additional to the regular mercantile license, on those desiring to hold special sales of goods, wares and merchandise as stated in the ordinance; providing restrictions on all persons making such sales; containing a classification based solely on whether the person making the sale has been doing business at the location where the sale is proposed to be held for a period of one year; and through such classification imposing a large additional license fee on those classed as itinerants, while another class, defined as non-itinerants, making similar special sales, are required to pay only a nominal license fee for making such special sales, is invalid and unconstitutional in that it unlawfully restrains petitioner of his liberty, in that the classification is unreasonable and arbitrary and without a basis of fact, and the license tax excessive and prohibitive as against petitioner who has not been engaged in that business in the city for one year and is therefore classed as an itinerant by the ordinance complained of.

It is also contended that the additional license tax for making such special sales upon those classed as itinerants is prohibitive and 'an arbitrary and unnecessary restriction of the right of property, and is in restraint of trade.'

The Constitution of the State of Florida contains the following:

'All men are equal before the law, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring possessing and protecting property, and pursueing happiness and obtaining safety.' Sec. 1 Declaration of Rights.

'All courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay.' Sec. 4, Declaration of Rights.

'No person shall be subject to be twice put in jeopardy for the same offense, nor compelled in any criminal case to be a witness against himself, nor be deprived...