City of Jacksonville v. Ledwith

26 Fla. 163 | Fla. | 1890

Raney, C. J.:

The act of May 31st, 1887, Chapter 3775, establishing the Municipality of Jacksonville, provides, in Section 4 of Article III, that the Mayor and City Council “shall have power by ordinance * * to make regulations to secure the general health of the inhabitants and to prevent and remove nuisances; * * to provide for and regulate the inspection of beef, pork, flour, meal and other provisions, oils, whisky and other spirits in barrels, hogsheads and other vessels ; to regulate the inspection of milk, butter, lard and other provisions; to regulate the vending of meat, poultry, fish, fruits and vegetables; to restrain and punish the forestalling and regrating of provisions, and to establish and regulate markets; * * and to pass all ordinances necessary for the health, convenience and safety of the citizens, and to carry out the full intent and meaning of this act, and to accomplish the object of this incorporation.”

The substance of the market ordinances of Jacksonville, as they stood on September ioth, 1889, the time the bill in this case was filed, is, omitting the penal provisions as to a violation of the same, as follows : The Public Market ordinance makes every day except Sunday a public market day, and constitutes the market buildings on Water Lot 24, at the foot of Market street, and “not elsewhere,” the Public Market; and ordains that stalls, tables, or space in this market shall be rented to butchers or others desiring to hire the same by the month, or such longer period as may be desirable, upon such terms, and for such sum as the Board of Public Works shall determine. It also provides that no person shall sell any fresh beef, fresh pork or mutton, or establish or maintain any market, stall or shop for the keeping or sale of fresh beef, pork or mutton at any place within the corporate limits, except at the public market, unless such person or persons shall be expressly authorized to do so by fhe City Council; provided, however, that producers bringing vegetables, poultry, eggs or other country produce to the city for sale shall be ^-mitted to sell the same free of tax anywhere witnm the city.

The Private Market ordinance provides that private markets may be established, regulated and abolished at the discretion of the City Council, but no private market for the sale of fresh meats or fish shall be maintained within the city except with the permission of the City Council granted by resolution, and not more than one stall shall be permitted or licensed within the same building. Private markets must be constructed and maintained in accordance with specifications, rules and regulations approved by the City Board of Health governing the same and prescribing the size and character of stalls, and no permit for the establishment or maintenance of any private market shall be granted except upon a petition endorsed by the City Board of Health. No person can maintain or do business in a private market except upon paying to the City Treasurer for a license, the sum of five dollars per month for each and every stall used, and no person shall do the business contemplated by this ordinance except upon stalls licensed as heretofore provided.

A market, says Blackstone, is a franchise or liberty derived from the crown by grant, or by prescription which supposes a grant. 2 Com., 37 ; the establishment of public marts or places of buying and selling, such as markets and fairs, with the tolls thereunto belonging being in England within the King’s prerogative as to domestic commerce; 1 Com., 274; such prerogative consisting in the discre tionary power of acting for the public good where the positive laws are silent, and if it be abused by him to the public detriment, such prerogative is exerted in an unconstitutional manner. Ibid, 252. In Jácob’s Law Dictionary, as well as that of Tomlin, a market is defined to -be the liberty by grant or prescription, whereby a town is enabled to set up and open shops, &c., at a certain place therein for buying and selling, and better provision of such victuals as the subject wanteth ; it being less than a fair and usually kept once or twice a week. Bouvier’s definition is : A public place and appointed time for buying and selling, a public place appointed by public authority where all sorts of things necessary for the subsistence or for the convenience of life are sold. In Ketchum vs. the City of Buffalo, 21 Barbour, 296, it is said, citing Crabb’s Law of Real Property, that a market is the privilege within a.town to have a market, and the franchise may be granted to natural persons or bodies politic; the grantee of the franchise has the right to have the market, but the public have also an interest in the market, and the grantee of the franchise is bound to provide suitable accommodations for those who attend the market. Judge Dillon, in his work on Municipal Corporations, note 4 to Section 380, quotes the definition given by Judge Breeze, which is : A designated place in a town or city to which all persons can repair who wish to buy or sell articles there exposed for sale. See also Cincinnati vs. Buckingham, 10 Ohio, 257; State vs. City of Newbern, 70 N. C., 12; City of Burlington vs. Dankworth, 73 Iowa, 170. The public character of markets is further illustrated by Prince vs. Lewis, 5 B. & C., 363, where the grantee of the market for the buying and selling of vegetables, fruits, flowers, roots and herbs, had for his own profit permitted part of the space to be used for other purposes than those specified in the grant, and the residue of the space became insufficient for public accommodation, and there was not on ordinary occasions space within the market for carts and wagons resorting thither with vegetables, etcetera, and it was held that the owner of the market could not maintain an actipn against an individual for selling vegetables in the neighborhood of the market and thereby de - priving him of toll, even at a time when there was room in the market, without showing that on the day when the sale took place he gave notice to the seller that there was room within the market. Again, in Moseley vs. Walker, 7 B. & C., 55, it is said by Bayley, J.: I take it to be implied in the terms in which a, market is granted that the grantee if he confine it to particular parts within a town, shall fix it at such parts as will from time to time yield to the public reasonable accommodations; and that if the space once alloted ceases to. give reasonable accommodation, he is bound if he has land of his own to appropriate land on which to hold it; or if not, to get land from other people, in order that the market which was originally granted for the benefit of the people, as well as for the benefit of the grantee, may be effectually held, and that the public may have the benefit which was originally intended they should derive from it.

In the case of Mayor of Penryn vs. Best, 3 Law Reports, Exchequer Division, 292, decided in 1873, the Court said: “The mere grant of a market does not of itself confer the right to prevent persons from selling on market days in their private houses, though within the town or manor where the market may be held. This was decided in the case of Mayor of Macclesfield vs. Chapman, 12 M. &. W., 18. It is pointed out in the judgment that an old case, the Prior of Dunstable’s case, 11 H. 6, f. 19 a, and cited in City of London’s Case, 8 Rep., 127, a, had been erroneously supposed to decide the contrary. It may also be considered as decided by the case of Earl of Egremont vs. Saul, 6 Ad. & E., 924. We feel- bound by these authorities, although dicta may no doubt be found to the contrary. See Mosley vs. Chadwick in note to Mosley vs. Walker, 7 B. & C., 47. The second conclusion by which we are bound i§ that such a right as is contended for may be acquired by immemorial enjoyment or prescription. Mosley vs. Walker, 7 B. & C., 47, Mayor of Macclesfield vs. Pedley, 4 B. & Ad, 397.” In the Court of Appeal,, this view of the law was affirmed though the judgment of the lower court was reversed on the ground that the right to prevent butchers from selling at their private shops on market days within the limits of the franchise was shown by the evidence to exist by prescription. 3 Law Reports. Exchequer Division, pp. 292, 297 et seq.

In our own country the authority to establish and regulate markets falls within the police power of the States, and the right to exercise such authority may be conferred by a State upon municipal corporations; and it is competent for these corporations, where the delegation of power is sufficient, to prohibit the sale of marketable articles outside of the regularly established 'markets. Dillon on Municipal Corporations, Sections 141, 380; City of Bowling Green vs. Carson, 10 Bush, 64; First Municipality vs. Cutting, 4 La. Ann., 335; Ex-parte Byrd, 84 Ala., 17: S. C. 5. Am. Rep., 328.

The question, whether or not the grant of the power to “establish and regulate markets” implies, when standing alone, authority to prohibit elsewhere than at duly established markets, the sale of articles falling within the exercise of the police power, need not be decided in this case, although it would seem that authorities of great respectability sustain the affirmance of it, and some of them holding that such is the current of authority. Bush vs, Seabury, 8 Johnson, 418; Village of Buffalo vs. Webster, 10 Wend, 100; Cronin vs. People, 82 N. Y., 318. Ex-parte Canto, 21 Texas Ct. App., 61; S. C. 57 Am. Rep., 609; Ex-parte Byrd, 84 Ala,, 17, Morano vs. Mayor, 2 La., 217; City of Bowling Green vs. Carson, 10 Bush, 64; Winnsboro vs. Smoot, 11 Rich., (Law), 551; Dillon on Municipal Corporations, Sec. 380; Ash vs. People, 11 Mich., 347 ; St. Louis vs. Webber, 44 Mo. 547. There are, however, authorities to the contrary. Bethune vs. Hughes, 28 Ga., 560; Coldwell vs. Alton, 33 Ill., 416. See also City of Bloomington vs. Wahl, 46 Ill., 489; City of St. Paul vs. Landon, 2 Minn., 190. In addition to the grant of authority to “establish and regulate markets,” the legislature has, as appears in the first paragraph of this opinion, expressly authorized the Mayor and Council to “regulate the vending of meat, poultry, fish, fruit and vegetables,” and under this grant we are satisfied that they may by ordinance prescribe the time and places for the sale of the articles it covers ; and such restrictions as to times and places being reasonable with reference to the welfare of the community, and not being in general restraint of trade, they may likewise prohibit the sale of such articles elsewhere. That the sale of them may under this grant be restricted to markets duly established under the other, where the regulations do not constitute an illegal restraint or a prohibition of the trade, we do not doubt. Tiedeman’s Limitations of Police Power, Section 104 ; City of St. Paul vs. Traeger, 25 Minn. 248, 255, and authorities cited supra.

Authority to establish and regulate markets implies, beyond question, the power to purchase or provide the site and erect necessary buildings and stalls, and, when provided by lease, purchase or other lawful mode, to adopt reasonable and usual rules and regulations in regard to the market and the business transacted there, and having in view the preservation of peace and good order, and the health of the community; Dillon, Section 382; Ketchum vs. Buffalo, 14. N. Y., 356; Smith vs. Newbern, 70 N. C, 14; Gale vs. Kalamazoo, 23 Mich., 344; Spaulding vs. Lowell, 23 Pick., 71, and Coldwell vs. Alton, supra. If the real and principal object is the building of a market house the appropriation of a portion of the building to other purposes, as for the holding of courts, does not render the erection of the building illegal; Spaulding vs. Lowell, 23 Pick., 71; and the same rule will hold good where, as in the case before us, the premises are leased. Gale vs. Kalamazoo, 23 Mich., 344. An express grant of police power as to regulating the vending of meat, poultry, fish, fruits and vegetables, as has been given to the city of Jacksonville, supplements the other with the restrictive authority as to the time and place at which any article within its meaning and purpose shall be sold. There is nothing in the act which excludes markets as the places to which the vending shall be restricted.

Where reasonable facilities for sale at markets are given, such a regulation is not a prohibition of trade, nor the creation of a monopoly, the subject-matter of the regulation being, as in the case of fresh meat and fresh fish, one which the health .or welfare of the community requires, should be regulated. It is argued by counsel for appellee that the language of the act includes the power to regulate the vending of all kinds of cured meat as well as of fresh meat, and if power is given to prohibit the latter it is also as to the former, and hence it was not intended to give this power as to either. We do not admit that there is “prohibition” of the sale of fresh meats in the fact that an ordinance restricts its sale to market houses, still, it is a sufficient answer to the argument made, to say that if the language of the statute is broad enough to cover any kind of meat, the vending of which cannot reasonably be dangerous to the health or welfare of the people, such language will be confined, when considered as authorizing the exercise of the police power, to the proper subjects of that power. It is well settled that the courts are the final judges as to what are proper subjects"of its exercise, and the legislature cannot arbitrarily make that a subject which from its nature is not so. In re Jacobs, 98 N. Y., 98; Mugler vs. Kansas, 123 U. S. 623. It would be unreasonable to hold that the use of language so broad when considered in the abstract as to cover things not the subject of the police power, shows a legislative intent not to authorize the exercise of the power as to proper subjects of it. Moreover, the provisions of the same section as to preventing nuisances, and regulating or licensing, or prohibiting and suppressing theatrical and other exhibitions, and prohibiting and suppressing gambling houses and other things, certainly do not limit the meaning and effect of a grant of the power to regulate the vending of meat or to establish and regulate markets.

The general law for the incorporation of cities and towns, as amended in 1877, Section 22, p. 250, McClellan’s Digest, enacts expressly that the city or town council shall have power to establish market houses, and to require each and every person who may have for sale any fresh meat of fresh fish, to bring the same into the market and offer the same for sale only in the market; and in view of the absence of such an express provision from the charter act under consideration, it is contended that a legislative intention to withhold from the municipality of Jacksonville the authority to restrict such sales to market places is manifested. No particular formula of words, or expression is essential to convey a power. The only question is, does the language used in any special or general act clearly confer the power ? As stated above, our opinion is that both upon principle and authority the grant is unquestionably sufficient to do so in this case.

It is necessary to a judgment upon the validity of the above ordinances to inquire how the power to establish markets, or to regulate the same, or the vending of meats or other articles mentioned, can be exercised. The statute says : The Mayor and City Council shall “have power by ordinance” to do so. Section 4 of Article III, Chapter 3775) page *64, Acts of 1887. The first section of the same article enacted that “the legislative power of said incorporation shall be exercised by a City Council,” and this provision is retained in the section, as amended by an act approved May 16th, 1889, Chapter 3952, Acts 1889. The second section of the article of the act of 1887, provides that no bill shall become a law “until it shall have been signed by the Mayor, except that it may be passed without his signature as herein provided. No ordinance, or portion of an ordinance, vetoed by the Mayor, shall go into effect unless the same be passed by two-thirds of the whole number of members of the City Council. If the Mayor fail to return any ordinance, at or before the next regular meeting after its passage, he shall be deemed to have approved the'same, and it shall become a law without further action.” Page 164, Acts of 1887. The second section of the same article of this act, p. 162, is to the effect that the Mayor shall carefully examine all bills passed, and should any not meet his approbation, he shall return the same to the next regular meeting of the Council with his objections in writing, and he may veto objectionable features, and “approve” the residue of the bill. From these provisions it is plain that a market cannot be established, nor can regulations thereof or of the vending of meats, poultry, fish, fruits or vegetables be made, except by municipal law duly passed by the Council and afterwards submitted to the Mayor and sanctioned by his*approval attested by his signature, or which he has failed to return to the next regular meeting of the Council after its passage, or which, having been returned to the Council with his objections, has been passed over his veto by two-thirds of the whole number of the Council.

It is to be observed that by the Public Market ordinance as given above, no person can sell any fresh beef, fresh pork or mutton, or establish any- market, stall, or shop for keeping or selling the same, or either of them, within the corporate limits of the city, except at the public market, unless such person shall be expressly authorized to do so by the City Council. This provision appears in the ordinance as it was when adopted in January, 1889, and was not changed by the amendment made by the Council and approved by the Mayor July 30th, of the same year. The Private Market ordinance passed by the Council July 30th, but not approved by the Mayor until August 5th, provided in its first section that private markets might be established, regulated and abolished at the discretion-of the City Council, but that no private market for the sale of fresh meats, fish or vegetables should be maintained except by and with the permission of the Mayor and City Council granted by ordinance ; but an ordinance was passed and approved the thirtieth day of August providing that this section should' read as follows : “ Private Markets may be established, regulated and abolished at the discretion of the City Council, but no private market for the sale of fresh meats or fish shall be maintained within the limits of the City of Jacksonville except with the permission of the City Council granted by resolution.” The provision that not more than one stall should be licensed-or permitted in the same building, was added by the amendment passed September 6th, and approved the next day. The fifth section of the Private Market ordinance, approved August 5th, repeals an ordinance of june 6th, 1888, regulating and governing private markets, but it is not shown, nor is it material to know, what its provisions were. We máy, however, remark that it does appear there whs in the contract made between appellee and the city, in 1876, as to the Public Market established at the foot of Ocean street, on Water Lot Number Ten, arid continued, with renewals and modifications, immateriál td mention, down to May xst, 1889, an express stipulation that all other markets then existing in the city should be abolished, and that be the sole and exclusive market, excepting such markets as might be legally existing under contract with the city.

We do not think it can be doubted that the purpose of the amendment of August 30th was to make the right to keep a private market for the sale of fresh meats, et cetera, dependent upon the permission of simply the Council expressed by resolution, instead of the permission of the lawmaking power duly expressed according to the forms prescribed by the charter act for making municipal law ; and considering the ordinance as thus amended, and also as it stood after the subsequent amendment approved September 7th, its meaning was that the City Council as a separate body might establish, regulate and abolish at its discretion, private markets without its action being subjected to the co-ordinate action of the Mayor or having gone through the course required by the statute to make it municipal law. It is too plain to admit of discussion that this cannot be done. Ex-parte Frazee, 63 Mich., 396; S. C. 6 Am. St. Rep., 310; Dillon on Municipal Corporations, Secs. 96, 357, 716, 779; Cooley’s Constitritional Limitations, 249; not that legislative action in the form of a resolution and which has been passed by the Council, submitted to the Mayor and received his approval, or not been returned by him, or having been duly returned by him, has received the two-thirds vote, may not be an ordinance, (Dillon on Municipal Corporations, Sections 307 and 769 and notes; Robinson vs. Mayor of Franklin, 34 Am. Dec., note p. 633) but for the reason that markets, cannot be established, nor can regulations for them, or for the vending of meat and other articles specified in the provision of the statute, be made by the Council as an independent part of the city government, or in any other manner than by proper ordinance duly enacted as the statute has provided. Horn vs. People, 26 Mich, 221, and Ruggles vs. Collier, and other authorities cited with it infra.

The amendatory section of August 30th took the place of and entirely superseded the first section as it was in the original ordinance of August 5th, and the consequence resulting from the omission of the italicised words and the insertion of those proposing to delegate to the Council the power to establish and regulate markets is, that there was from the approval of the amendment no valid provision for the establishment or regulation of private markets. Advisory opinion, 15 Fla., 735; Basnett vs. Jacksonville, 19 Fla., 664; State ex rel. McQuaid vs. Commissioners of Duval County, 23 Fla., 483; Saunders vs. Provisional Municipality, 24 Florida, 226. That which was in the old section, but was left out of the new, ceased to exist as a part of the municipal law because it was actually and, we must hold, intentionally omitted, and the invalidity of the substituted subject-matter in the new section proposing to give to the Council a power which it can not legally exercise, does not change the fact that the italiicised provision of the original section is no longer a part of the municipal law. The omitted matter is no longer in existence as a part,of the section, or to be construed by the courts.

Another part of this private market ordinance to be noticed is its second section, which provides: That such market must be constructed and maintained in accordance with specifications, rules and regulations approved by the City Board of Health governing the same, and prescribing the size and character of stalls, and no permit for the establishment or maintenance of any market shall be granted except upon a petition endorsed by the City Board of Health.

It appears that on the sixth day of August, or the day after the approval of the private market ordinance, the Board of Health formulated and prescribed rules for the govern ment of private markets. They prescribe, inter alia, that such a market shall have, a water-tight floor of yellow pine heart plank, or portland cement, or of both, as in the judgment of the Board may be deemed necessary, at least one inch in thickness on a solid foundation, the grade of the floor; connections with the sewers and with the water works; that the construction of all markets shall be subject to the supervision and approval of the City Engineer and Health Officer, and the market to the daily inspection of an officer of the Health Department; the size of the stalls (not less than three feet wide and six feet long) and that they shall be covered with a marble slab, white oil cloth or other “ acceptable” substance, and furnished with “suitable” meat block and with galvanized iron hooks; the hour at which the markets shall be closed, and the removal of meats after-wards ; the washing of the stalls, floors, et cetera, and the use of disinfectants that may be prescribed by the Board; and how meat shall be moved from one market to another, or transferred through the streets. The fifth of these rules is, That persons owning and operating private markets and wishing to continue the same, and those desiring to establish and maintain them, must immediately present to the Health Officer or to the Chairman of the Board, for the action of the Board, a petition to the City Council; that it shall state the location, number of stalls, full specifications of the construction, size and other details of the proposed market or building, together with an assurance that the applicant will, in case his application is approved by the Board and granted by the City Council, promptly comply with ordinances of the city and the rules of the Board, adopted or that may be adopted, in relation to the payment of license, and the fulfillment of sanitary requirements and restrictions in the construction and operation of private markets.

These rules appear from an endorsement of the Recorder to have been submitted to and adopted by the City Council in regular session on the day they were formulated by the Board.

They are intended to control the establishment of, and to regulate markets. The establishment and regulation of markets must be effected by ordinance enacted or ordained in the manner prescribed by the statute. It cannot be done either by a Board of Health acting, in the language of the brief of appellant’s counsel, “in the capacity of a committee from the Council,” nor by the Council itself, nor by both. The Board of Health in prescribing these rules has done no more than the second section of the ordinance contemplated, and the attempted exercise of this authority by the Board was as much unauthorized as the effort of the ordinance to delegate the power was illegal. A public duty which the Legislature has confided to the deliberative judgment or discretion of the law-making power of a municipality cannot be delegated by the latter to the judgment or discretion of one constituent element of that power, nor to the judgment or discretion of others. To permit it to be done would be to defeat the will of the Legislature as to whose judgment or discretion should direct the subject-matter of the duty confided. Ruggles vs. Collier, 43 Mo., 359; St. Louis vs. Clemens, 43 Mo., 395; Sheehan vs. Gleeson, 46 Mo,, 100; Mattox vs. Alexandria, 68 Mo., 115; White vs. Mayor, 2 Swan (Tenn.), 364; Day vs. Green, 4 Cushing, 433; State vs. Bell, 34 O.; St., 194; Lord vs. Oconto, 47 Wis., 386; Birdsall vs. Clark, 73 N. Y., 73; Hitchcock vs. Galveston, 96 U. S., 344; Indianapolis vs. Indianapolis Gas-Light & Coke Co., 66 Ind., 396.

The special market' ordinance is alledged to be void because it also prescribes illegal prerequisites, and one of the prerequisites objected to is the license and the charge of five dollars per month for each and every stall.

Section 4 of Article III of the charter act, Chapter 3775, authorizes the Mayor and Council “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; to license, tax, and regulate hackney carriages, carts, omnibuses, wagons and drays, and to regulate and license the sale of fire-arms; * * and to regulate, tax, license or suppress the keeping and going at large of all animals within the city.” The eleventh section of the act of May 31st, 1889, Chapter 3958, an act supplementary to Chapter 3775, amends Section one of Article XII of the parent act, retaining, however, the provision, “Privileges may be licensed and taxed by city ordinances,” and also enacting that the Council may provide for licensing the keeping of dogs.

At the session of the Legislature of 1887, at which the charter act, Chapter 3775, was passed, a general revenue law, Chapter 3681, was enacted, it having received the approval of the Governor, June, 13th, 1887, or thirteen days, after the charter act was approved. This act imposes what was styled “license taxes” on different occupations and professions, and provides that no person shall engage in or manage the business, profession or occupation mentioned therein unless a State license shall be procured in the manner prescribed, and enacts that counties, incorporated, cities and towns, may impose such further taxes of the sama kind upon the same subjects as they may deem proper, but that they shall not impose any such tax on any business, profession or occupation not mentioned therein, nor shall the tax imposed by them exceed fifty per cent, of the State tax. The same limitation upon counties, cities and towns, is to be found in former general revenue laws, as it also is in the amendatory revenue law of May 28th, 1889, Chapter 3847. The revenue law of 1887, Chapter 3681, imposes a license tax on auctioneers, “taverns” (or what may be deemed the same thing, keepers of hotels and boarding houses.); peddlers and retailers in spirituous, vinous or malt liquors, but not on hackney coaches, carts, omnibuses, wagon's or drays, and all of this is true of the act of 1889; and in each of these general revenue statutes there is to be found a proviso that the license tax provision as to peddlers/ with boat or horse and cart or carriage shall not extend tol boats and carts engaged in the sale of vegetables and plantation products, fish and oysters. The question, assuming the five dollar fee to be a tax for revenue, is : Does the special act authorize the imposition of such a license or occupational tax upon the franchise or business of a market. Counsel for appellants suggests that the right to maintain market being a franchise, it is a privilege, and is therefore| taxable, Admitting, as we do, that the right to keep a market and charge toll is a franchise, and consequently a privilege, within the meaning of Stevens vs. State, 2 Ark., 291; S. C. 35 Am. Dec., 72; Washington vs. State, 13 Ark., 752, still this admission is not conclusive in favor of the right of the city under the above provisions of its charter act to impose a revenue tax upon such markets or persons keeping them, for the meaning of the word “privileges” in the charter act is unmistakable from the connection in which it is used. When the act gives power to levy and collect taxes upon all property 'and privileges taxable by law for State purposes, and to license, tax and regulate auctioneers, taverns, peddlers and retailers of liquors and all other privileges taxable by the State, it is clear that the Legislature did not use the word, privilege, to designate such things as are technically privileges, and cannot ever be enjoyed or exercised in England except through the prerogative of the Crown or under act of Parliament, or in this country by authority of law, but to denote other occupations and business of the same kind as those mentioned and that are taxable by law for State purposes. In a word, we think the meaning of the Legislature as shown by the language last referred to, was simply that whatever occupations were subjected to taxation by the State laws, might be taxed by the City of Jacksonville under an ordinanee or ordinances duly passed, and none other; and this view is strengthened by the fact of the subsequent provisions of the municipal law as to hackney carriages, carts, omnibuses, wagons and drays which were not subjected to “license taxes” by the act of 1887, or that of 1889, and hence the necessity for the special mention of them in the charter act. Moreover, this provision as to hackney carriages, etc., would not have been inserted had it been the intention of the Legislature to delegate to the Mayor and Council by the preceeding provision the same power which the State has of selecting the subject of occupational or license taxes; Section 5, Article IX, Constitution, instead of limiting it to the subjects named in the charter act and the revenue laws of the State. Markets are then not subject as occupations to taxation for revenue under the charter act.

There was nothing in the provision of Section one of Article XII of the act of 1887 as to “privileges,” nor is there anything in the amendment of it made in 1889, that qualifies the above conclusion. That section, as it appears in the act of 1889, Chapter 3933, reads, omitting the provision as to licensing dogs, as follows : “All property which is subject to State taxes shall be assessed and licensed for taxation alphabetically for the entire city without reference to wards. The assessment shall be made by the Comptroller and his assistants, and the valuation of real and personal property shall be subject to be increased or diminished by the Council under regulations to be made by ordinance. Privileges may be licensed and taxed by city ordinances * * * . All the duties now devolved upon the Recorder in reference to the levy and assessment of taxes, shall devolve upon and be performed by the Comptroller.” It is evident that the purpose of the section is, not to designate the subject of taxation, but to regulate the manner of assessing and levying taxes on real and personal property and of licensing and taxing the avocations declared elsewhere to be taxable and designated here as those by the word “privileges.” 'It prescribes the manner and mode of exercising the taxing power against the previously defined subjects of taxation.

Appellants do not admit, however, that the charge of five dollars is a tax levied for the purpose of raising revenue, but contend that it is-a fee properly chargeable as incident to the power of police regulation, and as such is authorized. According to this private market ordinance no person can “maintain or do business in a private market,” except upon paying to the City Treasurer, for a license, the sum of five dollars per month for each stall; and no person can do business in any such stall or private market that is not so licensed. We have seen that by this ordinance not more than one stall can be licensed in the same building. Prior to an amendment of it approved September 7th, 1889, there was no such limitation upon the number of stalls in one building. Assuming that under the power granted to the Mayor and Council, they may by ordinance authorize the establishment of public markets by private individuals, the same being controlled and regulated by the Mayor and Council by ordinance according to the principles of the decisions in Davenport vs. Kelly, 7 Iowa, 102 (notwithstanding LeClain vs. Davenport, 13 Iowa, 210), Dillon on Municipal Corporations, Section 385, and note 4; Gale vs. Kalamazoo, 23 Mich., 344; Indianapolis vs. Indianapolis Gaslight & Coal Co., 66 Ind., 396; Slaughterhouse Cases, 16 Wall., 36; Butchers’ Union vs. Crescent City Co., 111 U. S., 746; Villarasso vs. Barthet, 39 La. Ann., 247, our opinion is that the power to do so includes, as a market is a franchise, the power to license; a permit to establish a market is from the nature of a market, a license; it is a permit to do something which could not be done before without such permit, and hence is the grant of a license. Besides this, as we have stated in the earlier part of this opinion, the power to establish markets is within the police power, and all this being true, we are unable to conclude that the power to charge, as a police regulation, a fee for the permit or license to establish and maintain a market, as distinguished from a permit or license for selling meats or vegetables therein, does not exist. It seems to us that, it necessarily does. The fee, however, is not a tax for revenue, but a charge under the police power, and its amount is to be controlled by the principles governing in such cases. What amount of fee or charge can be exacted is a question upon which the authorities are in conflict. By some it is held that no more than the expense of issuing the license can be charged. Judge Cooley’s view is that the right to license an employment, no power being given to also tax it for revenue, gives the corporation authority to impose such a charge for the license as will cover, not only the necessary expenses of issuing it, but also the additional labor of officers and other expenses imposed by the business, but nothing beyond this limit; and this seems to us to be the better rule. Cooley’s Constitutional limitations, 244, and note 1; Cooley on Taxation, 408-9-10; Van Hook vs. Selms, 70 Ala., 362; S. C. 45 Am. Rep., 85; Ex-parte Anderson, 20 Texas Ct. App. 210; S. C. 54 Am. Rep., 516; Cincinnati Gas-Light & Coke Co. vs. State, 18 O. St., 237.

A permit or license to a person to sell meats or fish, or other things, is not the grant of a right to maintain a market, within the meaning of the legislative grant to the Municipality of Jacksonville of the power to establish and regulate markets. The establishment and regulation of a market means the right to establish and furnish certain places where the public may resort for selling and buying provisions or articles of immediate necessity, and where the owners of the articles may expose them for sale, and to regulate these places and the business done there, and includes also the right to make charges for the use of stalls and space used by those resorting there with their products to sell the same. Markets are public conveniencies, and not a mere license or permit to a person to sell his marketable property. Though the grant of authority to regulate the vending of meat, poultry, fish, fruits and vegetables will permit the legislative power of the city to ordain general regulations, applicable to all alike, as to when and where those articles may be sold, it is not one conferring the franchise of establishing a market, but it is a power to -regulate the sale of articles which, but for it, could be sold anywhere and at all times. The power to establish markets cannot be used to create a monopoly of the right to sell. It is not intended for any such purpose. The right to sell at markets must be secured to all alike on the same conditions. The grant as to vending meats, etcetera, is one of police power and it is to be exercised upon considerations, referable to the public health or welfare of the community, and not arbitrarily, nor to create a monopoly in one or several persons, nor to prohibit the trades to which it applies. Though under it the hours of the day, the places, and the mode or manner of and rules for conducting the business may be designated and prescribed, and the establishment of fixed places of sale may be prohibited in localities from which their exclusion is dictated by sanitary considerations, and, as in the case of markets affording reasonably ample facilities for all who may desire to engage in vending such articles, the sales may be confined to specific places, yet all this must be done on principles of impartial and general regulation affording the same rights to all alike upon the same conditions, and not in the exercise of a partial and discretionary or arbitrary will pf the law-making power or of any part of'it. Tiedman’s Limitations of Police Power, 273, 274, 278; First Municipality vs. Blineau, 3 La. Ann., 688; Kennedy vs. Phelps, 10 Ibid, 227; City of New Orleans vs. Stafford, 27 La. Ann., 417; Villarasso vs. Barthet, 39 La. Ann., 247; Belcher vs. Farrar, 8 Allen, 325; Cooley’s Con. Lim., m. p. 201; Horne vs. People, 26 Mich., 221; Mayor vs. Radecke, 49 Md., 217; S. C. 43 Am. Rep., 239; Matter of Frazee, 63 Mich., 396; S. C. 6 Am. St. Rep., 310; Mintun vs. Lorne, 23 How, 435; Logan vs Pyne, 43 Iowa, 524; St. Johnsbury vs. Thompson, 59 Vt. 300 , Clark vs. Le Cren, 9 B. & C, 52; Chamberlain vs. Compton, 7 D. & R., 597. It does not authorize the imposition of taxes for revenue purposes upon the occupation of vending, but it dose in connection with the grant as to inspection made in the same section justify such fees and charges as may be required to cover the expense of inspecting the articles offered for sale and of the police supervision of the business necessary to prevent its becoming harmful to the community. Though the right to engage in the business at the times and places and under the same conditions applicable to all cannot be denied to any, the business may be so regulated as the public welfare may demand and the courts will not interfere with the enforcement of a regu-j lation except where it shall be manifest that the protection of the public is not its purpose. Austin vs. Muncey, 141 Pick., 126; Dillon on Munic. Corp. note 2, to Section 141; Cooley’s Con. Lim., m. p. 203. The police power is one whose existence is essential to the protection and welfare of the public, and while it should be used unhesitatingly and efficiently for the ends it was intended to subserve, it should not be used for other purposes, nor further than is necessary to fully effect the legitimate end in any particular case falling within its proper exercise.

It is plain from the record before us that the right claimed by Ledwith, the appellee, is that of maintaining a building where stalls and space are provided for butchers or others desiring to sell, for the use of which stalls and space he makes charges. For some years prior to May, A. D. 1889, his premises, at the foot of Ocean street, had been the designated public market, controlled and regulated by the city, under an ordinance and a contract between the city and himself, which contract expired on the first day of that month. The expiration of this contract excludes from the case all question as to the effect which, if existing, it might have had on the right and power of the city authorities to change by ordinance the location of the public market, or, barring any other defects that may exist in the Public Market ordinance of July 30th, 1889, to establish the public market at the foot of Market street, and abolish that at the foot of Ocean street. As against the appellee, or any one whose premises or buildings had been the legally established public market, there can be nodoubt of the right of the city authorities to remove the market to a different place, or to abolish an existing one and establish a new market. Neither the appellee, nor any other person, nor any corporate body other than the municipality of Jacksonville, acting through its law-making authority, has been given power by the Legislature to establish markets within the territory of that city. In Florida the Legislature alone can confer'such power. The power to establish a market includes the power to change the location of it from place to place as the convenience and necessities of the community may dictate. Dillon on Mun. Corp., Section 382; Cooley’s Con. Lim., 744, note 2; Wartman vs. City of Philadelphia, 33 Penn. St., 202; Gall vs. Cincinnati, 18 O. St., 563, Cougot vs. New Orleans, 16 La. Ann,, 21; City of New Orleans vs. Stafford, 27 La. Ann., 417; Rex vs. Cottrell, 1 B. and A., 67; Curwen vs, Salkeld, 3 East., 538; Gale vs. Kalamazoo, 23 Mich., 344; Villarasso vs. Barthet, 39 La. Ann., 247; Butchers’ Union vs. Crescent City Co., 111 U. S., 746; Presbyterian Church vs. City of New York, 5 Cowen, 508. These authorities show how groundless the vested right theory of complaint, based on the injury to the value of his property through decrease of rental, is, and how firmly set is the rule that the police power can not be parted with, or impaired, by contract or barter.

The second section of the Public Market ordinance shows by the words “ unless such person or persons shall be expressly authorized so to do by the City Council,” particularly when they are considered in connection with the Private Market ordinance, that it was not the intention of that ordinance to prohibit the sale of fresh meats, etc., elsewhere than the so-called public market. On the same day, July 30th, 1889, that the first section of this ordinance was so amended as to establish the public market at the foot of Market street, the so-called Private Market ordinance was passed, although the latter did not receive the sanction of the Mayor till the 5th day of August, and it is this Private Market ordinance that was intended by' the law-making power of Jacksonville to furnish the rule under which the express authority suggested by the second section of the Public Market ordinance, might be obtained for selling, or offering for sale, fresh beef, fresh, pork or mutton elsewhere than at the public market, or establishing or maintaining a market, stall or shop for the sale of the same. The two ordinances are to be considered together, or as one, in seeking for the intention of the municipal law-maker as to markets and the vending of the meats mentioned in them. Considering them together, we find that the manifest intention to permit and regulate sale elsewhere than in the locus of the public market, as well as that to permit other markets, has not been effectually ordained; or, in other words, the ordinance governing such sales and markets is void because it purports to remit their establishment, maintenance, regulation and abolition to the sole discretion of a body—the City Council—that cannot exercise the power, and also to delegate to a. committee—the City Board of Health—authority which the State Legislature has committed to the law-making power of the municipality. It is thus apparent that the City of Jacksonville, as represented in the expression of her legislative agency speaking for her, intended not only that there should be a public market at the foot of Market street, but that there might be other places established at which sales could be made, yet that sales could not be except at the public market or a so-called private market, and to make this intention effectual she has ordained that a person who violates the provision of the public market ordinance as to selling at other places than the public market or a private market should be subject to fine or imprisonment. It happens, however, that the private market ordinance is void, and the question arises as to what effect this fact has upon the validity of the above prohibitory provision of the public market ordinance. In our opinion it invalidates it because it never was the intention of the law-making power of Jacksonville that sales should be confined to the public market, and to enforce it with the effect of prohibiting sales elsewhere in the absence of valid regulations of such sales would be to do what was never intended. Whether or not an ordinance restricting sales to one place in a city of the territorial extent and of the population of Jacksonville would be held to be valid if assailed as unreasonable, it is unnecessary to decide, as such cannot be said to have been the purpose in this case.

The rule as to statutes is ,that part of an act may be unconstitutional without invalidating the whole of it. If all the provisions are connected in subject-matter depending upon each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed that the Legislature would have passed the one without the other, the whole act will be declared void. On the other hand, where some parts are not connected with or dependent upon others, as where a statute attempts to accomplish two or more independent objects, it may be void in part and valid as to the residue. If its purpose is to accomplish a single object only and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid poitions. If the valid and the void parts “are so mutually connected with and dependent on each other as conditions, considerations or compensations for each other as to warrant the belief that the Legislature intended them as a whole, and if all could not be carried into effect, the Legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected must fall with them.” Cooley’s Constitutional Limitations, m. p. 177-179; State ex rel. Boyd vs. Deal, 24 Fla., 293. The same principles apply to city ordinances. Dillon on Municipal Corporations, Section 421 and notes. A valid charter act is the constitution of a municipality as much as the work of a regularly chosen convention ratified by the vote of the people is the organic law of the State. It is evident that the purpose of the public and private market ordinances considered together is two-fold. Outside of its prohibitory provisions the object of the former was to provide a public market where persons could resort to sell and buy as indicated above. The object of the prohibitory clause was to regulate the sale of certain articles, and it cannot be denied that it and the private market ordinances are conditions, considerations and compensations for each other. Surely the specified provision of the former with the clause last quoted above would not have been ordained without enacting the private market ordinance unless it should be assumed that it was deemed necessary to have the latter ordinance to make the quoted clause effectual; and that it was not so assumed we are concluded by the fact of the enactment of the private market ordinance. This prohibitory clause of the so-called public market ordinance, and the private market ordinance are as connected with, conditional upon and compensatory to each other as if they were in the same ordinance or section of an ordinance, and the invalidity of the latter ordinance is fatal to the specified provision of the former. To hold the contrary would be to enforce what was never intended by any branch of the lawmaking power of Jacksonville in passing or approving either of these by-laws.

It is evident that there is no valid regulation prohibiting sales elsewhere than at the public market, and for this reason there is no legal impediment to the sale in the appellee’s building, and he should, in the absence of legal restriction' of sales to other places, not be interfered with in the alleged use -of the premises.

It may be well for us to remark that it is not to be inferred from anything said in this opinion, that the municipal authorities may not avail themselves of all sources of knowledge and experience in framing rules and regulations, nor is the power of the city to use all usual or proper agencies for the enforcement of the same when duly ordained to be doubted.

We have gone as far into the questions affecting the vendors of meat doing business in Ledwith’s building as is hecessary to a decision of the case. Ledwith is not such a vendor, and it is not proper that we should say more than we have upon any question not affecting his rights.

The decree is affirmed.

Case Details

Case Name: City of Jacksonville v. Ledwith

Court Name: Supreme Court of Florida

Date Published: Jan 15, 1890

Citation: 26 Fla. 163

Court Abbreviation: Fla.