Tamiami Trail Tours, Inc. v. City of Orlando

• Decision Date: 13 April 1960
• Citation: 120 So.2d 170
• Parties: TAMIAMI TRAIL TOURS, INC., a corporation, Great Southern Trucking Company, a corporation, Mercury Motor Express, Inc., a corporation, and Central Truck Lines, Inc., a corporation, Petitioners, v. CITY OF ORLANDO, Florida, a municipal corporation, Respondent.
• Court: Florida Supreme Court

Page 170

120 So.2d 170

TAMIAMI TRAIL TOURS, INC., a corporation, Great Southern Trucking Company, a corporation, Mercury Motor Express, Inc., a corporation, and Central Truck Lines, Inc., a corporation, Petitioners, v. CITY OF ORLANDO, Florida, a municipal corporation, Respondent.

Supreme Court of Florida.

April 13, 1960.

Rehearing Denied May 26, 1960.

Cecil H. Brown of Sutton, Brown & Turnbull and Raymer F. Maguire, Jr., of Maguire, Voorhis & Wells, Orlando, for petitioners.

Robert F. Lilley of Baker, Lilley & Baker, Orlando, for respondent.

ROBERTS, Justice.

We are here concerned with the validity of an ordinance of the City of Orlando, respondent here, purporting to regulate the loading and unloading of freight within the city, in its application to the petitioners, plaintiffs below, who are interstate common carriers operating in this state under certificates of public convenience and necessity issued to them by the Florida Railroad and Public Utilities Commission ('the Commission' hereafter). The ordinance in question requires the owner or operator of a truck or trucks using the freight loading and unloading zones established by the city on its streets to apply for a 'tag permit' for each such truck. Application for the permit is made to the City Tax Collector, who issues the permit 'upon the payment of Ten Dollars ($10.00) for the first permit issued to an applicant and One Dollar ($1.00) for each succeeding permit issued to the same applicant.' The permit is good for one year, and application therefor must be made and a new permit issued each year for each such truck.

The basis of petitioners' complaint for injunctive relief from the enforcement of the ordinance against them is that, as auto transportation companies authorized to do business in this state by the Commission and operating under the jurisdiction of that body pursuant to Ch. 323, Florida Statutes, F.S.A., they are required to and do pay the mileage tax prescribed by § 323.15; and that under the express provisions of § 323.15, such mileage tax 'shall be in lieu of all other taxes and fees of every kind, character and description, state, county or municipal, including excise and license taxes levied or imposed against such auto transportation companies, or the operation of such business and facilities thereof, or their property * * *.' (Emphasis supplied.) Section 323.07 provides also that 'No municipality shall have the right to require any such auto transportation company to furnish any bond or insurance policy, or pay any license, fee or tax except as herein provided.'

The trial judge considered the pleadings and affidavits, found that there was no conflict between the quoted provisions of Ch. 323 and the ordinance, and dismissed the complaint. On appeal thereto by the plaintiff-petitioners, the Second District Court of Appeal affirmed. See Tamiami Trail Tours, Inc. v. City of Orlando, Fla.App.1959, 113 So.2d 723, for the appellate court's decision.

In affirming, the appellate court found that the ordinance was a valid exercise of its police power by the municipality in the regulation of traffic on its streets, and that the exaction of the fee for the permit was not a tax but a fee incidental and referable only to the police power of the city to regulate traffic and parking. It held, under the authority of decisions from other jurisdictions upholding parking meter ordinances alleged to run counter to a general law imposing a state tax on motor vehicles and exempting the owners thereof from the payment of any license tax or fee to any municipality, that the ordinance requiring plaintiffs to obtain 'tag permits' from the city in order to utilize the loading zones was 'not violative' of Chapter 323, supra.

By petition for certiorari the petitioners contend that the decision of the appellate court is in direct conflict with the decision of this court in Mercury Cab Owners Association v. Miami Beach Air Transport, Inc., Fla.1955, 77 So.2d 837. In that case this court held that a carrier operating under a certificate of public convenience and necessity issued by the Commission could not be compelled to secure such a certificate from the City of Miami Beach as a condition to carrying on its operations within the city. The petitioners argue that, just as there is no concurrent jurisdiction of the City of Orlando and the Commission to license their operations within the city, there is no concurrent jurisdiction, under the express terms of Ch. 323, supra, to tax such operations; and they state that 'there is no conflict in the evidence that this tax is on the operation of the business of carriage which is within that certificate [issued by the Commission].' The respondent contends that the appellate court rightly concluded that the ordinance was a lawful exercise of the police power and that 'the pecuniary extraction therein contemplated [was] incidental to and referable only to such exercise.' It appears to be conceded that if the permit fee was, in fact, in the nature of a tax, it is violative of Ch. 323, supra, and rightly so. See Anderson v. Wentworth, 1918, 75 Fla. 300, 78 So. 265; Langston v. Lundsford, 1936, 122 Fla. 813, 165 So. 898.

Before discussing this question it should be noted that the petitioners are not objecting to the city's regulation of traffic under its police power by the establishment of freight zones, but merely to the imposition upon them of a fee for the use of such freight zones. They point out that, by Fla.Stat. § 323.16(1), F.S.A., the Legislature has provided for the payment by the State Comptroller from the mileage taxes collected from petitioners the sum of $25 annually to each city and town in which any such company maintains a depot, warehouse, station or agent; that each of them maintains a station in the City of Orlando; that the city has received annually this sum based upon each of their certificates; that, presumably, the Legislature considered this sum ample for the cost of any police or traffic regulation inuring to the benefit of the petitioners; and that, if this sum is in fact insufficient, the proper way to correct the insuffciency is by amendment of § 323.16(1), supra.

The conclusion is also irresistible that, if the City of Orlando can exact this type of fee from the petitioners, then all cities on the route of a carrier can repeat the procedure, thereby building up an overhead for the carrier that obviously was not contemplated in the rate fixed or approved for such carrier by the Commission.

Assuming, arguendo, however, that in the exercise of its police power to regulate and control traffic the city could enact a licensing ordinance regulating the operations of the petitioners for this purpose, the fact remains that the ordinance shows on its face that the requirement for the permit and fee has nothing whatsoever to do with regulating the loading and unloading of freight and/or traffic.

It is, of course, well settled that the power to regulate includes the power to license as a means of regulating, and that a reasonable license fee may be charged in an amount sufficient to bear 'the expense of issuing the license and the cost of necessary inspection or police surveillance connected with the business or calling licensed, and all the incidental expenses that are likely to be imposed upon the public in consequence of the business licensed.' State ex rel. Harkow v. McCarthy, 1936, 126 Fla. 433, 171 So. 314, 317. But it is only in those cases where regulation is the primary purpose of a licensing ordinance or statute that the exaction of a fee therefor can be especially referred to the police power. 2 Cooley on Taxation (3d ed.) p. 1127. And where a license is required and a fee exacted solely for revenue purposes and the payment of such fee gives the right to carry on the business without any further conditions, it is a tax. See Bateman v. City of Winter Park, 1948, 160 Fla. 906, 37 So.2d 362; 33 Am.Jur., Licenses, § 19, p. 341.

Here, despite the statement in the ordinance that 'Whereas, a system of permits providing for the use of said loading and unloading zones will expedite the proper regulation and control of said zones,' the ordinance does not require that such zones be used for the loading and unloading of freight; it merely prohibits the use thereof without a 'tag permit'. No standards are prescribed for the guildance of the City Tax Collector in granting or denying a permit to use the freight zones--such standards being a sine qua non to the validity of a true regulatory licensing ordinance or statute. See State ex rel. Ware v. City of Miami, Fla.App.1958, 107 So.2d 387, and cases cited. Nor does it provide for any regulation of the licensee or 'permittee', once the permit is issued, which is the usual concomitant of a license proper and one of the distinctions between a regulatory fee exacted under the police power and a tax. See Bateman v. City of Winter Park, supra, 37 So.2d 362. The permits are issued and the fee collected by the City Tax Collector--further confirmation, if confirmation were needed, that the fee is exacted solely for revenue purposes. The fact that all or a part of the revenue derived from the permit fees may be allocated by the City Tax Collector to the cost of collecting the fee and to the police department for the enforcement of its traffic ordinance establishing freight zones (although there is no hint or suggestion in the ordinance that this will be done) cannot change the essential character of the provisions of the ordinance respecting the tag permits and fees and, as shown, in this respect it is a non-regulatory, purely revenue-producing, measure.

The conclusion is therefore inescapable that, insofar as its provisions relating to 'tag permits' are concerned, the ordinance in question is naught but an attempt to impose an excise tax upon petitioners and others similarly situated, either for the privilege of using the city's freight zones or...