121 So. 567 | Fla. | 1929
In habeas corpus proceedings, instituted originally in this Court, it appears that petitioner, W. W. Dusenbury, is held in custody by the respondent upon a charge of having violated ordinance of the City of St. Petersburg No. 633-A, by conducting "a public auction sale of merchandise without having first procured from the Director of Finance of the City of St. Petersburg proper license so to do."
The ordinance applies to "all sales at public auction of *469 merchandise in the corporate limits of the City of St. Petersburg." Amongst others, the ordinance contains the following provisions:
Section 4: When the provisions and requirements aforesaid have been complied with by the applicant he shall obtain a license to conduct such auction sale which license shall be issued to him by the Director of Finance of this City upon the payment of the sum of Two Hundred Fifty ($250.00) Dollars per day for the period of such auction sale. Provided, however, that in cases where the applicant shall have been continuously engaged in business in this city as a retail or wholesale dealer in the goods or wares mentioned in Section One for a period of Two (2) years next preceding the date of the sale at public auction the license shall be issued to conduct such auction sale upon the payment of Two Hundred ($200.00) Dollars and upon compliance with the provisions and requirements of the preceding sections of this ordinance, and such license shall be good for a period of thirty (30) days exclusive of Sundays and holidays.
Petitioner, being one who has not been continuously engaged for two years in business in the City of St. Petersburg as a retail or wholesale dealer in the goods being auctioned by him, contends that as to him the ordinance is discriminatory, unreasonable, prohibitory and therefore invalid.
The only authority which has been called to our attention for the passage of said ordinance by the city is the following general authority found in the Charter Act:
"To impose license taxes upon privileges, businesses, occupations and profits carried on and engaged in *470 within the City; and the amount of such taxes shall not be dependent upon the general State Revenue Law."
The power to impose license taxes thus conferred upon the city is not an unlimited or arbitrary power, but one to be exercised reasonably and in conformity with general law. Under this authority, the city may not directly prohibit auction sales of lawful character, nor can it adopt such unreasonable or oppressive regulations as would indirectly produce such result. Ex parte Harrell,
Petitioner contends that the classification fixed by the ordinance is unreasonable and discriminatory. Classifications for the purpose of imposing occupation license taxes which arbitrarily discriminate between residents and nonresidents on the ground of residence alone and without other practical justification in point of fact, (see 12 C. J. 1120), are usually rejected as discriminatory, particularly if such classification operates to exclude the non-residence solely on account of his residence. City of Saginaw v. McKnight, 63 N.W. R. 985; Mott, Due Process of Law, page 281. But the courts have frequently approved classifications, imposed in the exercise of the regulatory police power, which distinguish between permanent and transitory merchants in the conduct of auction and other sales of certain classes of merchandise. See Mogul v. Gaither, 121 Atl. R. 32; Central Lumber Co. v. South Dakota,
That portion of the ordinance imposing a higher tax upon those engaged in business for less than two years in said city is clearly an unreasonable exercise of the general power conferred by the Charter Statute to impose license taxes, and is therefore invalid. Roach v. Ephren,
The case of Park v. Morgan,
In Mogul v. Gaither, 121 Atl. R. 32 and in Ex parte West, 243 Pac. R. 55, the basis of classification here involved was sustained as reasonable. The ordinances under consideration in those cases, however, directly prohibit in the regulatory exercise of the police power the auction sale of jewelry, gold, silverware, etc., by those in business less than a year, a power which the cities there involved were at least tactily conceded by the court to have, and did not seek, as in this case, to accomplish that result by an arbitrary and excessive use of the taxing power. Besides, the ordinance here in question extends to auction sales of all merchandise, while those in Mogul v. Gaither and Ex parte West, supra, extend only to auction sales of gold, jewelry, precious stones, etc. Auction sales of the latter class of merchandise are usually recognized as affording a reasonable *475 basis of independent classification in the exercise of the regulatory police power for the purpose of preventing fraud and deception. Levy v. Stone, decided at this Term, 121 So. R. 565; Holsman v. Thomas, 147 N.E. R. 750; 39 A. L. R. 760; Ex parte West, 243 Pac. R. 55.
Petitioner discharged.
TERRELL, C. J., AND WHITFIELD, ELLIS, BROWN AND BUFORD, J. J., concur.