State v. Dillon

• Decision Date: 31 May 1918
• Citation: 75 Fla. 785,79 So. 29
• Parties: STATE ex rel. SWIFT v. DILLON, Chief of Police.
• Court: Florida Supreme Court

79 So. 29

75 Fla. 785

STATE ex rel. SWIFT v. DILLON, Chief of Police.

Florida Supreme Court

May 31, 1918

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Habeas corpus by the State of Florida, on the relation of M. T Swift, against R. M. Dillon, Chief of Police of the City of Miami, Fla. From a judgment remanding the relator to the custody of the defendant, relator brings error. Affirmed.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

By its charter the city of Miami has power by ordinance to impose license taxes upon 'privileges, business, occuations, and professions carried on and engaged in within the city limits,' and such license taxes are not controlled by the general license statutes as to amounts.

The writ of habeas corpus cannot be used as a substitute for a writ of error.

The question of whether or not such an emergency exists as to warrant the governing body of a municipality in giving immediate effect to an ordinance, declared to be necessary for the preservation of the public peace and safety under authority of a valid charter provision, rests in the judgment and discretion of such body.

Under the Charter of City of Miami (Sp. Acts 1915, c. 5196) s 25 empowering city by ordinance to impose license taxes upon occupations, the power is not limited to imposing a license on occupations, but may be made effectual by subjecting one carrying on an occupation without a license to a personal penalty.

COUNSEL Shutts, Smith & Bowen, of Miami, for plaintiff in error.

Hudson Wolfe & Cason, of Miami, for defendant in error.

OPINION

WEST J.

This case comes here upon writ of error to the judgment of the circuit court of Dade county remanding the plaintiff in error, upon habeas corpus, to the custody of the defendant in error as chief of police of the city of Miami.

Swift was charged, tried, and convicted in the municipal court of the city of Miami of having violated an ordinance of said city which imposed an annual license tax of $10 upon 'land agents or real estate brokers, each principal and salesman.' The affidavit upon which he was tried, which is made a part of the petition, charges him with 'doing business as a real estate agent.' The ordinance is alleged in the petition for the writ, to be void and unenforceable upon various grounds not necessary to be enumerated here.

The return to the writ, issued pursuant to the prayer of the petition, is as follows:

'In obedience to the foregoing writ, I hereby produce before your honor the body of said M. T. Swift, and I do report and return to your honor that I hold the said M. T. Swift in my custody by virtue of a commitment issued by the municipal court of the city of Miami, following a trial of the said M. T. Swift on a plea of not guilty, which trial was had upon the affidavit attached to the petition herein, and which trial resulted in the conviction of said M. T. Swift, and his being sentenced by the judge of said court to pay a fine of ten dollars, or be imprisoned 20 days, in default of the payment of such fine, which said fine being not paid, the said M. T. Swift was committed to my custody as chief of police of the city of Miami, and that the said custody of the said M. T. Swift by me is by reason of the said premises and not otherwise.'

The errors assigned are: (1) That the court erred in refusing to release the prisoner upon motion for his release; (2) that the court erred in refusing to allow the petitioner to testify upon the hearing; and (3) that the court erred in remanding the petitioner to the custody of the chief of police.

By its Charter (chapter 7196, Laws of Florida [Special Acts 1915]) § 25, the city is given power to pass and adopt ordinances--

'to license privileges, business, occupations and professions carried on and engaged in within the city limits, and the amounts of such licenses and the amount of such license taxes shall be fixed by city ordinance, which amounts of said taxes shall not be dependent upon a general state revenue law.'

It is contended here that the power conferred upon the city by this charter provision is to license the business or occupation, and not the individual engaged in the business or occupation, and that therefore the conviction and imprisonment of the plaintiff in error upon a charge of 'doing business as a real estate agent' was unauthorized. This is a refinement of construction that we cannot accept as sound. It may be that the license tax here complained of is imposed upon the business or occupation, but such ordinances are made effectual by providing that the person or persons who carry on such business or engage in such occupation without first paying the license tax imposed thereon shall suffer the penalties therein prescribed.

This ordinance is also alleged by plaintiff in...