State v. Lewis

• Decision Date: 14 May 1908
• Parties: STATE ex rel. WORLEY v. LEWIS, City Marshal.
• Court: Florida Supreme Court

46 So. 630

55 Fla. 570

STATE ex rel. WORLEY v. LEWIS, City Marshal.

Florida Supreme Court, Division A.

May 14, 1908

Appeal from Circuit Court, Hamilton County; Bascom H. Palmer, Judge.

Application by the state, on the relation of O. A. Worley, for writ of habeas corpus to M. A. Lewis, marshal of the city of Jasper. From an order denying the writ, plaintiff brings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

A municipal corporation can exercise only such powers as are granted to it in express terms, or those necessarily or fairly implied in or incident to the powers expressly granted, or those that are essential and indispensable, not simply convenient, to accomplish the objects and purposes of the corporation. Any fair, reasonable, doubt concerning the existence of any power is resolved by the courts against the corporation.

Schedule B, c. 5597, p. 48, of the Laws of 1907, authorizes the imposition of a license tax by cities of 1,000 to 3,000 inhabitants upon any express company having an office therein of a sum not to exceed $25, and chapter 5811, p. 430, of the Laws of 1907, neither in express terms nor by implication authorizes the city of Jasper to impose such license tax for a greater amount than $25.

An ordinance passed by a city having less than 3,000 inhabitants, imposing a license tax of $50 upon express companies, is unauthorized and illegal, and one arrested for the alleged violation thereof is entitled to be discharged from custody upon a writ of habeas corpus.

COUNSEL

Kay, Doggett & Smith, and M. F. Horne, for plaintiff in error.

B. B Johnson, for defendant in error.

OPINION

SHACKLEFORD C.J.

O. A Worley filed the following petition for a writ of habeas corpus in the circuit court for Hamilton county: 'To the Honorable B. H. Palmer, Judge of Said Court:

'O. A. Worley, a citizen of Jasper, Hamilton county, Florida, would respectfully show and represent unto your honor that he is being detained in custody, charged with a pretended criminal offense, and that he is being so detained in custody without lawful authority by M. A. Lewis, city marshal of Jasper, Florida, upon a false and pretended charge that this petitioner had violated the provisions of an ordinance of said city, and that said ordinance of said city is illegal, unlawful, and unconstitutional, in this: That said petitioner is being held and deprived of his liberty upon a charge that he knowingly acted as the agent of the Southern Express Company at Jasper, Florida, before he had paid the license tax of the said Southern Express Company, amounting to fifty dollars, when said ordinance could not lawfully provide for or require the payment of a greater sum than twenty-five dollars for such license tax under the laws of the state of Florida, Wherefore the undersigned prays that a writ of habeas corpus be issued in terms of the law, directed to the said M. A. Lewis, requiring him forthwith to bring the body of the said O. A. Worley before your honor, together with his cause of detention, that the same may be inquired into. And your petitioner will ever pray,' etc.

The writ was granted.

The defendant, M. A. Lewis, marshal of the city of Jasper, made return that he held the said Worley by virtue of a warrant issued by the mayor of the city of Jasper, a copy of which is attached as an exhibit.

At the hearing before the circuit judge an agreed statement of facts was filed to the effect that the city of Jasper, having a population of 2,000, had passed an ordinance on the 1st day of October, 1907, fixing the amount of license tax for express companies doing business in such city at $50 per annum, and providing that: 'The superintendent of any express company violating the provisions of the ordinance, and any person who knowingly acts as agent for any express company before he has paid the above license tax pay able by the said company, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished respectively by a fine of not less than $50, nor more than $200, or by imprisonment in the city jail for not less than three months, nor more than six months.'

It was further agreed that Worley had knowingly acted as agent of the Southern Express Company, a corporation doing business in such town, which had failed, neglected, and refused to pay such license tax of $50, for the reason that such city could not lawfully by ordinance provide or require the payment of a greater sum than $25, which amount the Southern Express Company had been willing and ready to pay. These are the only facts we deem it necessary to set forth.

At the hearing the circuit judge held that the petitioner was not entitled to be discharged, and entered a judgment remanding him to the custody of M. A. Lewis, marshal of the city of Jasper. To review this judgment, writ of error has been duly ordered and taken.

We find in Schedule B, c. 5597, p. 48, of the Laws of 1907, the following provision relating to the license tax to be paid by express companies:

'Express companies, seven thousand five hundred dollars, to be paid to the comptroller on the 1st day of October of each and every year, in lieu of state and county license taxes.

'That any city or town in the state of Florida is hereby authorized to impose upon any express company doing business in this state having an office in such city or town, a license tax not to exceed the sum hereinafter mentioned, namely:

'In cities of 20,000 inhabitants or more, $200.00.

'In cities of $15,000 to 20,000 inhabitants, $100.00.

'In cities of 10,000 to 15,000 inhabitants, $75.00.

'In cities of 5,000 to 10,000 inhabitants, $50.00.

'In cities of 3,000 to 5,000 inhabitants, $37.50.

'In cities of 1,000 to 3,000 inhabitants, $25.00.

'In towns or villages of 500 to 1,000 inhabitants, $12.50.

'In towns or villages of $250 inhabitants, $6.00.

'For purposes of this act the population of any city or town or county shall be held to be that shown by the last official census taken by the United States or the state of Florida or that may be taken as now provided by law. That of the sum paid to the comptroller as provided by this act thirty-seven hundred and fifty dollars shall be distributed by the said...