State Ex Rel. Skillman v. City of Miami

• Decision Date: 12 May 1931
• Parties: STATE ex rel. SKILLMAN v. CITY OF MIAMI et al.
• Court: Florida Supreme Court

134 So. 541

101 Fla. 585

STATE ex rel. SKILLMAN v. CITY OF MIAMI et al.

Florida Supreme Court, Division A.

May 12, 1931

Error to Circuit Court, Dade County; H. F. Atkinson, Judge.

Habeas corpus proceeding by the State, on the relation of John J Skillman, against the City of Miami and Guy C. Reeve, Chief of Police. To review a judgment remanding petitioner to the custody of the Chief of Police, petitioner brings error.

Affirmed.

COUNSEL

Semple & Hirschman, T. E. Price, and Harold Kassewitz, all of Miami, for plaintiff in error.

J. W Watson, Jr., and Loftin, Stokes & Calkins, all of Miami, for defendant in error.

OPINION

BUFORD C.J.

On December 2, 1930, the city commission of the city of Miami Fla., adopted Ordinance No. 950. Section 1 of said ordinance was as follows:

'Section 1. It shall be unlawful to conduct, operate or maintain any undertaking or embalming establishment, mortuary, funeral home, or any place for the purpose of caring for and keeping dead bodies, for holding funerals or for practicing the profession of undertaker, embalmer, mortician or funeral director in or on any part of the Avenue or the Boulevard hereinafter (in this section) described, or on or in any part of the walks or ways, or in or contiguous to any part of the Avenue or the Boulevard hereinafter (in this section) described, or on or in any part of any lot (by whomsoever owned) contiguous to any part of the Avenue or the Boulevard in the City of Miami, Dade County, Florida, hereinafter described, namely:

'A. Brickell Avenue, between its northern and its southern termini;

'B. Biscayne Boulevard between the North side of Northeast 62nd Street on the North and the South side of Northeast 13th Street on the South;

'C. Biscayne Boulevard between the North side of Northeast 6th Street on the North and the Southern terminus of said Boulevard.'

Section 2 of the ordinance was as follows:

'Section 2. It shall be unlawful to conduct, operate or maintain any undertaking or embalming establishment, mortuary, funeral home, or any place for the purpose of caring for and keeping dead bodies, for holding funerals, or for practicing the profession of undertaker, embalmer, mortician or funeral director in or on any part of the Boulevard hereinafter (in this section) described, or on or in any part of the walks or ways, or in or contiguous to any part of the Boulevard hereinafter (in this section) described, or on or in any part of any lot (by whomsoever owned) contiguous to any part of the Boulevard in Miami, Dade County, Florida, hereinafter described namely:

'Biscayne Boulevard between the South side of Northeast 13th Street on the North and the North side of Northeast 6th Street on the South,

without first having obtained a written permit so to do from the Commission of the City of Miami, Florida, which permit may be granted by said Commission by resolution upon application therefor, upon showing to the satisfaction of the said Commission that the permitted occupation would not at the place and under the conditions in which it would be carried on be a nuisance or seriously impair the value of property in the vicinity or be against the public safety convenience and welfare.'

Section 3 of the ordinance provided for penalties for its violation. Section 4 of the ordinance provided as follows:

'Section 4. If section 1 of this Ordinance shall, for any reason, be adjudged void, or for any reason inoperative, with regard to the whole or any part of the area therein described, the area thereby excised from the provisions of said Section 1 shall be subject to the provisions of Section 2 of this ordinance, with like effect as if originally contained in said Section 2.'

Section 5 declared the ordinance to be an emergency measure.

Section 6 provided that the necessity of reading the ordinance on two separate occasions is dispensed with by a four-fifths vote of the commission.

John J. Skillman was arrested on an affidavit filed January 9, 1931, charging a violation of the ordinance. The violation of the ordinance is alleged to have occurred on the 9th day of January, 1931, and is in five counts. Each count in effect charges that Skillman did unlawfully conduct, operate, and maintain a funeral home on a lot contiguous to Biscayne boulevard between the north side of Northeast Sixty-Second street and the south side of Northeast Thirteenth street, to wit, in a building on the lot on the west side of Biscayne boulevard fronting east on the said boulevard and being between Northeast Nineteenth street and Northeast Eighteenth street and designated as No. 1822 Biscayne boulevard.

Skillman sued out writ of habeas corpus contending that the ordinance was invalid.

On hearing under an agreed statement of facts before the circuit court, petitioner was remanded to the custody of the sheriff. From this judgment writ of error was sued out.

The ordinance by its own terms declares the same to be an emergency measure. Therefore in this case the question as to whether or not it was an emergency measure is eliminated from consideration because this question is one which rests primarily in the judgment and discretion of the city commission for determination. State ex rel. Swift v. Dillon, 75 Fla. 785, 79 So. 29; Metropolis Publishing Co. v. City of Miami et al. (Fla.) 129 So. 913.

Section 5 of chapter 14234, Special Acts of 1929, provided an amendment to chapter 10847, Special Acts of 1925 (adding section 3(4), as follows:

'The Commission of the City of Miami may, by ordinance, provide regulations and restrictions governing the height, number of stories, and size of buildings and other structures, the percentage and portion of lot that may be occupied, the size of yards, courts, and other open spaces, and the location, use of buildings, structures, and land for trade, industry, residences, apartment houses and other purposes.'

This provision of the charter authorizes the city of Miami, through its commission, by ordinance, to exercise the power of zoning. The power of the Legislature to delegate such authority to the governing power of the municipality has been recognized and determined definitely in this jurisdiction by the opinion and judgment prepared by Mr. Justice Terrell in the case of State ex rel. Taylor v. City of Jacksonville (Fla. filed March 24, 1931) reported 133 So. 114. The opinion in that case may be said to settle every material question involved in this case, except the question as to whether or not the business sought to be engaged in by the petitioner is within a class or classification which may be properly subjected to regulatory ordinances.

The business sought to be conducted by the plaintiff in error is that of a mortuary or funeral home. Section 3 of chapter 10847, Special Acts of 1925, authorized the city of Miami, among other things, 'to regulate or prevent slaughter houses or other noisome or offensive business within said City * * * to regulate or prohibit * * * the exercise of any dangerous or unwholesome business, trade or employment therein; * * * and generally to define, prohibit, abate, suppress and prevent all things detrimental to the health, morals, comfort, safety, convenience and welfare of the inhabitants of the City.' Subdivision (p). Funeral homes, embalming establishments, and mortuaries have long been held to be subject to regulation under police power, and this before the modern practice of zoning became recognized as an attribute of municipal power.

It is contended here that, because there exists a cemetery near the location of the proposed mortuary, though not fronting on the same street, the mortuary would add nothing to the discomfort of the location. That other business enterprises which are properly subject to regulatory ordinances are conducted within the restricted area and are not affected by this or any other ordinance. It is also contended that there is a church located within a short distance of the mortuary and on the same street, and that, because funerals may be conducted from the church, it is an unwarranted discrimination to prohibit funerals being conducted from the proposed mortuary.

It is a well-recognized fact that people throughout all ages have generally possessed what may be, or be akin to, horror of death. In the presence of a funeral home, it is hard for the average person to eliminate from his mind the depressing contemplation of death. When one looks upon a funeral home his thoughts naturally turn to the certainty of death and to the scenes of desolation and sorrow which within his experience have been occasioned by the grim reaper. When he looks upon a church he may have passing thoughts of the transition by death to another and different life, but if his thoughts dwell upon the edifice of the church, the natural inclination is to think of what the church means, of its promise, of hope of eternal life, of its being the house of God and a place where people may gather together and in mutual happiness give praise unto and worship the Universal Father.

Therefore it must be accepted as a matter of common knowledge that, while the contact with a funeral home may result, in great...