41 Fla. 509 | Fla. | 1899
On November 20, 1899, upon the petition of plaintiff in error a writ of habeas corpus was issued by the Circuit Court of Duval county, directed to defendant in error, commanding him to produce the body of the petitioner and to certify the cause of his detention. Such proceedings were thereupon had that on the same day the court entered judgment overruling a demurrer to the .return of defendantdn error, denying petitioner’s motion to be discharged, and remanding him to custody. A writ of error to this court was granted for the purpose of reviewing this judgment.
From the pleadings it appears that petitioner is in custody by virtue of a warrant issued by the judge of
The assignments of. error are to the effect that .the court erred in overruling the demurrer, in liot discharging petitioner upon the return, and in remanding him to custody.
The first section of the ordinance provides that from and after October 1, 1899, every person, firm, corporation or association engaged in or managing any business, profession or occupation and having a fixed place of business in the city or required to have a city license shall on or before October 1, 1899, and annually thereafter, and always before engaging in any business, profession or occupation, register in a book to be kept for that purpose by the city recorder, their names, professions or occupations, and their places of business, and that no person, firm, corporation or association shall engage in or manage any such business, profession or occupation until after having been so registered in the office of the city recorder.
The second section provides that from and after the first day of October, 1899, no person shall engage in or manage the business, profession, occupation or occupations thereinafter mentioned and required to be licensed by the city, without first having paid the amount of
Section 4 provides that no person, firm, corporation or association shall engage in .or manage any business, profession or occupation in this section mentioned without first obtaining from the city a license therefor, and the assessments of such taxes are hereby fixed as follows. Here follows quite an extensive list of professions, occupations and businesses arranged alphabetically, with the amount of license tax imposed thereon, among which is the following: “Liquors, dealers in spirituous vinous or malt liquors for each place of business $275.”
The fifth section provides “that any person violating any provision of this ordinance shall upon conviction be punished by a fine not exceeding, $500, or imprisoned not exceeding ninety days.”
1. It is urged that the city’s charter confers no power upon it to require the registration provided for in section 1 of the ordinance, and that as the entire ordinance is designed as a complete system of raising revenue by taxing all or nearly all of the occupations engaged in within the city, if any part is invalid, the whole must fall with it. In City of Jacksonville v. Ledwith, 26 Fla. 163, text 212, 7 South. Rep. 885, it is said that if all the provisions of an ordinance are connected in subject-matter depending upon each other operating-together for the same purpose, or otherwise so connected together in meaning that it can not be presumed that the legislative power of the city would have passed the one without the other, the whole ordinance will be de
2. It is also urged that the city has no power to enact a license tax ordinance to remain in force until repealed, but that it must each year pass a new ordinance upon the subject, levying a specific occupational tax for that year. In several sections of the charter such expressions as the “annual levy of taxes,” or the levy for the “current” or “ensuing year,” and “levy in any year,” are used, but the connection in which these expressions are used shows that they relate to taxes upon property, and not license taxes, and we have not
3. It is further insisted that this ordinance imposes taxes upon occupations not taxed, as well as upon others taxed, by the State; that the city has no power to impose the one, and in imposing the other the amounts of its license taxes must not exceed 50 per cent, of the State tax. If this latter contention is correct, then the tax imposed upon dealers in spirituous, vinous and malt liquors is invalid because it exceeds 50 per cent, of the State tax upon the same privilege. To determine these questions it will be necessary to refer to several special acts relating to the city and the general revenue laws of the State. The charter of Jacksonville (Chap. 3775, laws of 1887,) provides, among other things, in Section 4, Article 3: “The mayor and city council shall, within the limitations of this act, have power by ordinances to levy and collect taxes upon all property and privileges taxable by law for State purposes, * * * ■ to license, tax and regulate auctioneers, taverns, peddlers and retailers of liquors, and all other privileges taxable by the State.” By Section 11, Chap. 3953, laws of 1889, Section 1, Article 12, of the charter was amended to read: “All property which is subject to State taxes shall be assessed and listed for taxation alphabetically for the entire city, without reference to wards. The
4. It is contended that the city has by this ordinance attempted to "segregate the several elements of right that accrue to the citizen under one taxable privilege as recognized, defined and declared by the general statute law of the State and to tax each of such elements, as a separate and distinct privilege of its own creation,” by dividing several privileges into many and requiring . separate licenses to sell special articles which necessarily belong to one State privilege, and which the State permits to be sold under one license, in violation of the rule declared in the Simms case supra. The defendant in error denies that the ordinance violates the rule stated, and contends further that even if it does, the ordi-' nance is valid, because as he insists that rule applies only to license taxes upon dealers in spirituous, vinous and malt liquors, and has no application to- other privir leges or occupations licensed and taxed by the State. The rule stated in the Simms case is not confined to dealers in spirituous, vinous and malt liquors, but ap
5. It is contended, lastly, that the legislature can not constitutionally delegate to the city the right to select the occupations upon which it shall impose a license tax for municipal purposes, nor the right to fix the amount of such tax as it may see fit, but that the legislature must designate the occupations to be taxed and fix a specific limitation upon the amount of taxes which the city may be empowered to impose as license taxes. This question depends upon the proper construction of Section 5, Article IX, of Constitution of 1885, which reads: “The legislature shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes, and all property shall be taxed upon the principles established for State taxation. But the cities and incorporated towns shall make their own assessments for municipal purposes upon the property within their limits. The legislature may also provide for levying a special capitation tax on licenses. But the capitation tax shall not exceed one dollar a year and shall be applied exclusively to common school purposes.” The argument for plaintiff in error runs thus: In this section the purpose first expressed is that the legislature shall authorize cities
The judgment of the Circuit Court is affirmed.