Blalock v. Powledge , 131 Fla. 498 ( 1938 )

* * * Petitioners in this case were not discharged for insufficiency per se of the ordinance of Lake City they were accused of violating, but because the facts ofthis case as disclosed by the record, clearly show that it is within the ruling of this Court made in Duffin v. Tucker,113 Fla. 621, 153 Sou. Rep. 298.

"In that case it was held that a municipality may not by fine and imprisonment enforce payment of a license tax as attempted to be exacted against mere salesmen, who simply take orders in a city for goods to be afterward delivered to the customers after such orders are accepted by outside dealers doing business in another place in the State of Florida, and properly licensed where they maintain their principal places of business to do the business they carry on. Rehearing denied."

In the case of Whiddon v. Vickers, 127 Fla. 222,172 Sou. Rep. 923, this Court said:

"It will be observed that the ordinance specifically provides that the ordinance shall not apply to persons, firms or corporations who maintain a store, bakery, warehouse, laundry, pressing club or other place of business in the City of Jasper, Florida, but shall apply to persons, firms or corporations who sell and dispose of such commodities from automobiles, trucks, wagons, drays, box cars or other vehicles without maintaining a store or other place of business in the City of Jasper.

"The judgment should be reversed upon authority of the opinion and judgment in the case of Duffin v. Tucker, 113 Fla. 621,153 So. 298; Farris v. Hall, 115 Fla. 433, 156 So. 114, and Hamilton v. Collins, 114 Fla. 276, 154 So. 201."

The first assignment is without merit.

It is next contended that the ordinance is void, because:

"(1) It discriminates against agencies soliciting business for out-of-town enterprises in that such agencies are subject to the tax while agencies soliciting business under the same circumstances and in the same manner for enterprises located within the city are not subject to the tax; (2) It is discriminatory in that it imposes a tax upon an agency soliciting business for an out-of-town enterprise where display rooms are maintained and merchandise kept on hand for display purposes only, but exempts from the tax an establishment regularly and continuously engaged in the sale of merchandise customarily on hand as a part of the regular stock of such establishment, although the merchant with a regularly established stock may also solicit business for out-of-town enterprises from samples kept on hand in a display room for display purposes only."

We have given consideration to the petitioner's brief in support of this assignment. The case of Hamilton v. Collins,supra, was distinguished from the case at bar in the previous assignment. The Legislature of Florida, under Chapter 15519, Acts of 1931, amending Chapter 8374, Acts of 1919, granted enumerated powers to the City of Tallahassee for the purpose of regulation and revenue, the power to impose and levy license taxes on all occupations and privileges, and to fix the amount thereof. This grant of power by the Legislature is general and very broad and the ordinance classifies the business in which petitioner is now engaged. There has not been shown here a discrimination as affects the ordinance. In the case of Ex Parte: H.R. Smith,100 Fla. 1, text 6, 128 So. 864, this Court said:

"The courts have frequently approved classifications resting upon the difference in fact between the business of an itinerant merchant, and the business of a merchant operated at a fixed location, both being engaged in the same general character of business. Such a classification is not based upon residence; but upon the essentially different methods employed by the two classes in carrying on the same general character of business. Such a classification has been recognized by the courts as valid both in the exercise of the regulatory police power for the purpose of preventing cheats, frauds, and danger to public health or morals (see Baccus v. Louisiana,232 U.S. 334, 58 L. Ed. 627; Mogul v. Gaither, 121 Atl. R. 32; Holsman v. Thomas, 147 N.E.R. 750; 39 A.L.R. 760; Biddle v. Enright, 146 N.E.R. 625, 39 A.L.R. 766) as well as in the exercise of the taxing power, since the State may levy a different tax on the same general character of business when conducted in essentially different modes. See Singer Sewing Machine Co. v. Brickell, 233 U.S. 304, 58 L. Ed. 974; Emert v. Missourt, 156 U.S. 296, 39 L. Ed. 430; Warren v. Geer, 11 Atl. Re. 415; Howe v. Gage, 100 U.S. 676, 25 L. Ed. 754. The classification sustained. In re: Haskell, 44 Pac. R. 725, 32 L.R.A. 527, relied upon by petitioner, rested upon the fact that Haskell was an itinerant merchant, whose business was carried on in a manner differing essentially from that of a merchant selling the same character of merchandise at a fixed location."

We have considered the California cases, the authorities from the State of New Jersey, and the State of Pennsylvania cited by counsel for petitioner and the splendid reasoning advanced, but in this instance we are compelled to follow the Constitution of Florida, the grant of powers to the City of Tallahassee by the Legislature of Florida, and the previous decisions of this Court.

The third contention for the invalidity of the ordinance appearing in the brief of counsel for petitioner is:

"Where a business is engaged partly in interstate and partly in intrastate commerce a license tax may not be imposed upon the whole business without regard to the amount of interstate and the amount of intrastate business done by the company. Nor may such a tax be imposed upon both the interstate and intrastate business by being indiscriminately applied to the instrumentalities or agencies by which the business is conducted, which are common to both sorts of commerce, especially where it is impracticable to effect a separation of the business. Such a tax being indivisible and indiscriminate in its application, necessarily burdens interstate commerce, and is void."

The stipulation of facts filed in the case shows that the agency from the Tallahassee office during the year 1937 handled orders amounting to $18,737.00 for intrastate and the sum of $14,383.00 for interstate business. The separation of the interstate and intrastate business is purely a matter of bookkeeping. It is not contended that the ordinance in question controls interstate business but applied exclusively to intrastate business transacted here. The nature or character of the business as transacted through the Tallahassee office is not such that a separate and accurate account cannot be kept and this is fully established by the stipulation filed showing the amount of each for the period named.

The Legislature of Florida in 1893 by Chapter 4115 provided that "no person shall engage in or manage the business, profession, or occupation mentioned in this section, unless a State license shall have been procured from the tax collector of each county in Florida by paying thereto a certain sum." It was stipulated that the Southern Express Company was doing business in Florida ordinarily done by Express Companies in the United States, and was engaged in intrastate and interstate transportation for hire of goods and merchandise and refused to comply with the statute, supra, because it attempted to burden interstate commerce and for said reason it was not required to pay to the tax collector of any county of Florida the prescribed fee where it maintained an office and agent for the transaction of an express business, both intrastate and interstate. The Supreme Court of Florida in the case of Osborne v. State, 33 Fla. 162,14 Sou. Rep. 588, 15 L.R.A. 120, 39 Am. St. Rep. 99, sustained the constitutionality of the statute, supra, and in so doing, at text pages 199-200, said:

"* * * In our judgment, the Florida statute now under consideration is, in so far as its terms can be construed to interstate or foreign commerce, of no effect; and besides this there is in the Act, in so far as it applies to express companies, nothing that necessarily regulates or that burdens or interferes with anything that is strictly interstate or foreign commerce, or that in view of the commerce clause of the Federal Constitution, should or can properly be construed to apply to interstate or foreign commerce. Any person or persons or body corporate wishing to engage in the express business, and confine that business to interstate or foreign commerce, can do so, and any effort to apply to or enforce against him the provisions of the statutes as to license, license tax or license fee must prove futile. The commerce clause of the Constitution of the United States protects him against any such interference. But because such person or persons or body corporate may have this right, he or they have not, as in incident to it, the right to engage in State commerce, and the statute, as a regulation of State commerce, is entirely valid. It is a legal regulation of State commerce, and there is nothing in the Federal Constitution that exempts any person or persons, natural or artificial, from its provisions."

See State, ex rel. Rand, v. Brodgen, 84 Fla. 520, 94 So. 653; Cason v. Quinby, 60 Fla. 35, 53 So. 741; Ferguson v. McDonald,66 Fla. 494, 63 So. 915; Hardee v. Brown, 56 Fla. 377, 47 So. 834; Osborne v. State, 33 Fla. 162, 14 So. 588; Osborne v. State of Florida, 164 U.S. 650, 17 Sup. Ct. Rep. 214.

The statute involved in the case of Osborne v. State of Florida, supra, was upheld by the United States Supreme Court and reported in 164 U.S. 650, 17 Sup. Ct. Rep. 214, 41 L. Ed. 586, and the Court said:

"The Supreme Court of Florida has construed the ninth section of this Act and has held in express terms that it does not apply to or affect in any manner the business of this company which is interstate in its character; that it applies to and affects only its business which is done within the State, or is, as it is termed, ``local' in its character, and it has held that under that statute so long as the express company confines its operations to express business that consists of interstate or foreign commerce, it is wholly exempt from the legislation in question. It has added, however, that under the provisions of the statute, if the company engage in business within the State of a local nature as distinguished from an interstate or foreign kind of commerce, it becomes subject to the statute so far only as concerns its local business, notwithstanding it may at the same time engage in interstate or foreign commerce. In other words, this statute as construed by the Supreme Court of Florida does not exempt the express company from taxation upon its business which is solely within the State, even though at the same time the same company may do a business which is interstate in its character, and that as to the latter kind of business the statute does not apply to or affect it. As thus construed we have no doubt as to the correctness of the decision that the Act does not in any manner violate the Federal Constitution."

The petitioner is remanded to the custody of the Chief of Police of the City of Tallahassee, Florida, for further proceedings according to law.

WHITFIELD, P.J., and BROWN, J., concur.

TERRELL and BUFORD, J.J., concur in the opinion and judgment.

ELLIS, C.J., dissents.