Ex parte Marshall

Taylor, J.

The petitioner, A. C. Marshall, by his petition for the writ of habeas corpus filed here seeks relief from arrest by the Chief of Police of the City of Jacksonville under a warrant based on an affidavit charging him with operating an auto bus with a seating capacity of twelve persons on a public street of said city without having paid the license tax of fifty dollars required by ordinance No. C-4 of said city, approved August 13th, 1917.

The petition alleges that on November 21st, 1917, your petitioner as Manager of Orange Belt Auto Line, a copartnership composed of himself and K. C. McCullough, obtained from Fred L. Munson, Lieutenant Colonel Q. M. Corps, the commanding officer of the Quartermaster Camp located at Camp Johnston, near Jacksonville, Florida, a franchise and permit to maintain a satisfactory auto bus service between said city and said camp, the same being granted in consideration of certain enumerated conditions and regulations therein prescribed by the said commanding officer with reference to the character of equipment, character of service, precautions to be observed, route to be traversed, fares to be charged, etc., all of which will more fully appear by a copy of said franchise hereto attached, marked Exhibit “C” as follows:

“HEADQUARTERS CAMP JOSEPH E. JOHNSTON JACKSONVILLE, FLA.

No. 001x500 November 21, 1917.

Mr. A. C. Marshall,

Manager Orange Belt Auto Line,

Jacksonville, Fla.

Dear Sir: —

This is to certify that you are authorized to maintain a satisfactory auto bus service between the City of Jacksonville and Camp Joseph E. Johnston, Fla.

That in consideration of this privilege, you have agreed in writing to abide by the following enumerated conditions, viz:

(a) To run only first class cars driven by competent and reliable chauffeurs.

(b) That during the construction of the camp you will cause your chauffeurs to drive slowly and carefully through the congested streets of the camp, and that your cars will in no way interfere with the working traffic of the Constructing Quartermaster or of his building contractors.

(c) That you, personally, will be held liable for any injury to persons or animals or to damage caused other vehicles that may become injured or damaged on the camp reservation through the faulty or careless driving of any of your chauffeurs.

(d) That the termini of the route will be the vicinity of the Mason Hotel, corner Julia and Bay Streets, Jacksonville, Fla., and the Club House at Camp Johnston.

(e) That the fare will not exceed 40 cents per one way trip nor more than 75 cents per round trip.

(f) That so long as you abide by all of the above named conditions you will be authorized to continue your bus service for at least six months following the completion of the electric car line from Ortega to the Camp.

'(g) That a noncompliance with any or all of the said conditions may cause a forfeiture of the privilege of operating your bus service within the camp reservation, Very truly yours,

(Signed) F. L. Munson,

Lt. Col. Q. M. Corps.

Indorsement.

I have carefully read the above letter and do hereby agree to comply with all its requirements to the best of my ability.

(Signed) A. C. Marshall,

General Manager, Orange Belt Auto Line.”

That on December 24th, 1917, pursuant to said franchise and permit, which was duly accepted by your petitioner as appears by the endorsement thereon the said commanding officer promulgated General Order No. 33 prescribing further regulations under which said bus service shall be operated by petitioner and enjoyed by the officers and enlisted men of the United States government stationed at said camp, which order is as follows:

“HEADQUARTERS GAMP JOSEPH E. JOHNSTON, Jacksonville, Fla., December 24, 1917.

General Orders,

No. 33.

1. A contract has been entered into between the Commanding Officer and the Orange Belt Auto Line under the management of Mr. A. C. Marshall. All cars operating under the management of this Company are marked ‘O. B. A. L. Govt. Controlled.’

2. Under his contract Mr. Marshall guarantees to use only first-class equipment to be driven by competent and experienced chauffeurs. These chauffeurs will hold a certificate of - service signed only by Mr. Marshall. The questions of speed'and the overloading of cars are fully covered in the contract.

3. Every effort has been made by this office to safe guard the limbs and lives of all men of this command who may enter any car licensed to operate between the Camp and the City of Jacksonville.

4. In view of the above all officers and enlisted men are warned against entering any car after the chauffeur thereof has informed them that there is no furthér room. The last man or men to enter a car after its authorized seating capacity has been reached are the offenders and must at once leave said car upon being asked to do so by the chauffeur. It shall be the duty of-any officer or non-commisisoned officer, who may be either inside or near the car, to order off and keep off any surplus passengers when appealed to for assistance by the chauffeur.

5. In case a car is overloaded and the offending man will not get off upon request by the chauffeur, said chauffeur has orders to hold his car at a standstill until the offender leaves said car.

6. Any chauffeur who allows his car to be overloaded or who fails to stop at the gate upon being ordered to do so by the gate guard, or fails to obey the letter as well as the spirit of this order, will be excluded from entering this Cawp for a period of six (6) months, or his car will ,be excluded for same period or both.

7. In order that all men of this Camp n ay enjoy a fairly equal opportunity of getting accommodations in the various authorized busses, on and after the 25th instant, the starting point of one-third of the busses will be from the junction of old brick road and 12th Street, north of Y. M. C. A. No. 2; one-third from junction from brick road and 6th Street; and one-third from Hostess House (old club house).

8. All cars starting from camp from these three points will be plainly marked 32th St.., 6th St., and 1st St., respectively. All cars so marked will deliver their passengers as far in the camp as said passengers desire to go, but all 6,th and 12th Street cars must arrive at their respective stations on the return trip to Jacksonville empty.

9. The 12th Street bus line is primarily intended for the accommodation of the troops living in blocks H, J, K, and L; 6th Street line for blocks D, E, F and G; and 1st Street line for Headquarters, Hostess House and blocks A, B and O.

10. A strict compliance with the terms .of this order on the part of all concerned will result in better service, contentment and safety.

By order of LIEUT. COLONEL MUNSON.

J. H. SPENGLER,

Captain Q. M., U. S. R.,

Adjutant.”

That in addition to the regulations set forth in said original franchise of Nov. 21st, 1917, and in said general order No. 33, the said commanding officer made other requirements and regulations of said bus service rendered by your petitioner, the aforesaid franchise, and the conditions under which the sai e were to be enjoyed by petitioner were fully confirmed and authorized by the said commanding officer, a copy of the said confirmation, together with petitioner’s acceptance thereof is attached to the petition marked exhibit “E,” as follows:

“HEADQUARTERS CAMP JOSEPH E. JOHNSTON, JACKSONVILLE, FLA.

January 5, 1918.

Mr. A. C. Marshall, Manager,

Orange Belt Auto Line,

Jacksonville, Fla.

Dear Sir:—

I have deemed it advisable to confirm the privilege granted to you under date of November 21st, 1917, for the maintenance of a bus service between the City of Jacksonville and Camp Joseph E. Johnston, pursuant to the modifications thereof ordered or authorized by me since the date of same, and to that end, I hereby certify and confirm that you have been authorized by me to have the exclusive right and privilege to maintain a satisfactory auto bus service between said City and said Camp, as long as the service supplied by you over said route shall be adequate and satisfactory to me as Commanding Officer of said Camp, subject to the following regulations and orders, and such further orders and regulations as may be made or authorized by me. That in consideration of said exclusive right and privilege, you have agreed in writing and will agree by your acceptance hereof, to abide by the following enumerated conditions :

1. To run only first-class cars, driven by competent and reliable chauffeurs.

2. That you, personally, shall be held liable for any injury to officers and enlisted men, or Government property, that may become injured or damaged on said Camp Reservation, or upon any- portion of the route hereinafter designated, through the faulty or careless driving of any of the chauffeurs operating cars owned by your auto line; and you shall also be personally liable for like injuries or damage arising under like circumstances, due to the faulty or careless driving of any of the chauffeurs operating all other cars which may come under your control, although owned by other parties, when engaged in said service.

3. That the termini of the route over which said bus service shall be maintained shall be the points at said Camp heretofore designated in General Order No. 33, under date of December 24th, 1917, and the vicinity of the Mason and Aragon Hotels, in the City of Jacksonville, Fla. That between said termini, said route shall traverse the public highways and public streets now existing between said Camp and said' termini in' said city. Provided, however,-that upon special orders or requests from me or my staff officer detailed for that purpose, you may be required to divert cars to or from the Union Station in said city, when necessary to transport officers or enlisted men to or from said station.

4. That all cars operated by yon in said service, whether owned by your auto line or under your control, shall be marked ‘O. B. A. L. Govt. Controlled,’ and each shall carry a designated number for the purpose of identification.

5. That you will cause all chauffeurs operating each and every of the cars under your management and control in said service to drive slowly and carefully through the congested streets of said Camp Reservation and shall require said chauffeurs to observe all reasonable traffic regulations over the entire route, as hereinbefore designated.

6. That the fares which you are authorized to charge officers and enlisted men, when transported in auto busses, between said Camp and said City, shall be 35 cents each way, and 25 cents each way between the end of the street car line at Ortega, Fla. and said Camp; these rates to apply between the hours of 5:00 A. M. and 12:00 Midnight; between 12:00 Midnight and 5:00 A. M. the rates shall be 50 cents each way. The fares for officers and enlisted men when transported in touring cars between said Camp and said city shall be 50 cents each way, irrespective of the hour. That the fare for civilians between said City and said Camp shall be 50 cents each way, without regard to the hour or equipment. That until the construction of said Camp shall be completed by A. Bentley & Sons Company, you will also be required to transport employes of said contractors for a fare of 35 cents each way, the transportation of such employes, however, to be subordinated to the transportation of the officers and enlisted men stationed in said Camp. That as exceptions to the fares above provided, you will be required to transport free of charge provost guards detailed by my staff to police said highway and to perform police duty in said city, and in order to facilitate the aforesaid free transportation, you are authorized to issue free passes to said provost guards.

7. That all automobiles and auto busses placed in said service, either owned by your auto line or under your control, shall be devoted primarily to the transportation of officers and men between said Camp and said city, the transportation of civilians to be subordinated to the needs of said officers and men and the cars devoted to said service shall not, during the continuance of your privilege as aforesaid, be diverted to any other service without my consent or authorization.

8. That as to the matter of schedules and details of the service, you will be governed by the orders and directions of Capt. C. Walcott, Q. M. U. S. R., a member of my stall, having in charge the transportation facilities to be rendered by you, and you will also be required to make said service conform to my General Order No. 33, under date of December 24th, 1917, and such further orders as may from time to time be made by me with reference to said service.

9. That the equipment which you will be required to furnish shall be sufficient to meet the average daily demand for transportation between said Camp and sail City, it being recognized that the unusual demands upon holidays or other special occasions cannot be made the test of the adequacy of your equipment.

10. In order to enlarge the equipment of your auto line, you are authorized to make contracts with other parties, ¡providing for the placing of their .machines under your exclusive management and control, to be subject to the regulations hereinbefore mentioned, and as a consideration to you for the time and expense of supervising and for the responsibility assumed by you in regard to injuries or damage to Government men or property, you are authorized to require such other parties to pay you a percentage not exceeding 10 per cent, of the gross receipts received from the operation of their respective cars in said service.

11. In the exercise and enjoyment of the exclusive privilege and right herein granted and confirmed to you, you will recognize that my reasons- for granting you the same, among other things, are that I have found if essential to the morale of the officers and men stationed at said Camp to permit them to visit said City on private business and for recreation, also to have said provost guards detailed for police duty in said City, to prevent said men, as far as possible, from participating in various form of dissipation, and have further found it necessary to the morale of said officers and men to permit' their relatives and friends to visit them at said Camp, and have found it necessary also for myself and members of my staff to go to and from said City on official business of the U. S. Government, for which purposes it was essential to provide a means - of transportation between said Camp and said City for the officers and enlisted men stationed there, as well as for civilians having occasion to visit said Camp, there being no street car line to said Camp and no other adequate means of transportation available; also that I was desirous of having the entire bus service rendered to said Camp under one management, so that the responsibility for injuries or damage to government men or property would be definitely located and assumed by a responsible party; also-that the greatest possible safety would be obtained to the officers, men and Government property affected by said service, and in view of these considerations, you will be expected to carefully observe the foregoing regulations and such others as may be from time to time duly authorized, and so long as you abide thereby, your exclusive privilege and right, as herein-before defined, shall continue. That a non-compliance with any or all of said conditions may cause, a forfeiture of said right and privilege.

Yours very truly,

F. L. MUNSON,

Lieutenant Colonel, Q. M. Corps.

Indorsement.

I have carefully read the foregoing communication and do hereby agree to comply with all its requirements to the best of my ability.

A. C. MARSHALL,

General Manager, Orange Belt Auto Line.”

That at the time of his arrest the alleged auto bus mentioned in said warrant was being operated in said bus service under the authority and subject to the conditions and regulations of the said franchise of November 21, 1917, as also said subsequent regulations, and also subject to said confirmation of January 5th, 1918, and not otherwise.

That the service rendered by your petitioner with each and every of the auto buses and automobiles employed in said service including the aforesaid bus being operated at the time of his arrest is a service constituting business of the United States government; that the said auto buses and automobiles employed in said service, as aforesaid, are instrumentalities engaged in the transaction of business for the military branch of the United

States government, under the exclusive direction and control of said commanding officer, or such member of his staff as he may detail for that purpose. That under the franchise granted and confirmed to your petitioner as aforesaid, and subject to the rules, regulations and conditions therein prescribed your petitioner in performing a part of said service with the aforesaid auto bus, as well as some forty additional auto buses and automobiles now owned and controlled by your petitioner and engaged in said service, constitutes an agency of the United States government. That the right to operate said bus line over said route and to receive tolls therefrom in accordance with the rules, regulations and conditions provided in the said franchise or confirmation thereof, constituted a franchise of the Federal government, and is not subject to the license tax provided in said ordinance.

Many cases from the Supreme Court of the United States and other Federal and State courts are cited to support the contentions of the petitioner, such as; Osborne v. U. S. Bank, 9 Wheat. (U. S.) 738; California v. Pacific R. Co., 127 U. S. 1, 8 Sup. Ct. Rep. 1073; San Benito County v. Southern Pac. R. Co., 77 Cal. 518, 19 Pac. Rep. 827; City of San Francisco v. Western Union Tel. Co., 96 Cal. 140, 31 Pac. Rep. 10, 17 L. R. A. 301; Western Union Tel. Co., v. Lakin, 53 Wash. 326, 101 Pac. Rep. 1094; Williams v. City of Talladega, 226 U. S. 404, 33 Sup. Ct. Rep. 116; Choctaw, O. & G. R. Co. v. Harrison, 235 U. S. 292, 35 Sup. Ct. Rep. 27. We are in accord with the holdings of all of these cases, except possibly some expressions used therein illustratwm arguendo that may be classed as obiter dictum'; but unfortunately for the petitioner none of them fit the facts of the case in hand. In all of them a license tax was sought to be imposed by a State, county or municipality upon the right to do business either by a bank, a railroad co.i pany or telegraph company that had been chartered, and had been granted its franchise and right to do business, by the Congress of the United States, and in all of them it was held in effect that such license tax was invalid because it was an unwarranted invasion of rights properly granted by the Federal government, and amounted virtually to an attempt to annul such Federal grant. In the case of Choctaw, O. & G. R. Co. v. Harrison, supra, the State of Oklahoma undertook to impose an occupational tax upon the railroad company for the mining of coal that the railroad company, as lessee of the Federal Government, had agreed to mine, the Federal government being under obligations by treaty contract with an Indian tribe to develop the mines from which it had been taken. The sum total of the decision in that case was that “A Federal instrumentality acting under congressional authority cannot be subjected to an occupation or privilege tax by a State.” There the Federal government was itself under contract obligations to develop the mines owned by the Indians, it procured its lessee, the railroad company, to fulfill its obligations by mining, in its place and stead, the coal from said mines. To have permitted the imposition of the occupational tax sought to be made in that case would have been to impose such tax by a State directly upon the Federal government, that of course is impossible. No such facts governing the decisions in any of the cited cases exist in the case in hand. It is insisted by the petitioner that he is operating his. automobiles and auto buses on the streets of the City of Jacksonville under and by virtue of a “franchise” granted to him by the commanding officer of a military camp located a few miles from said city, by which he is granted the right to convey the United States soldiers there quartered back and forth between said city and said camp on business or recreation bent. We have examined carefully the documents quoted above that are urged here as being a “franchise” to do the business of an auto bus line in this State, the county of Duval and the municipality of Jacksonville, but we fail to find in any of them any feature or semblance of the grant of a franchise to conduct such business. Even if it be .conceded that an army officer has any lawful authority to grant any such “franchise” in a State where he and the troops under him may be quartered, there is in the documents put forward here as constituting such franchise no attempt at any such grant. We grant that if the exigencies of a state of war should demand it' a commanding officer of an army may commandeer, -seize and utilize privately owned auto buses on the streets or other highways in the transportation of troops and all the,other paraphernalia of war, and may do this without payment of any taxes for the operation thereof on the public highways, but when it is asserted that he can go into a State, not under martial law, and there grant franchises to any of its citizens generally to conduct any class of business enterprise within the civil jurisdiction of such State, we very strongly doubt the asserted authority.

But in the documents put forward here as being a franchise there is no attempt at the grant of any such franchise, but on their face they.are nothing more than a voluntary contract between a partnership of individuals conducting a general business of carrying passengers and their baggage -by auto buses and automobiles to and from points in and around the city of Jacksonville on the one part, and the commanding officer of a United States encampment of soldiers on the other part, by which in consideration of the furnishing of good auto vehicles with skilled and careful drivers, and of a reduction in the fares to soldiers per man conveyed, and of the observance of certain regulations prescribed as to stopping places, and the giving of preference to soldier passengers over civilians, such commanding officer undertakes to give to said auto partnership a monopoly over all other organized bus lines and automobiles for hire of the right of entrance into said camp grounds and of conveying therefrom the soldiers there encamped. Each soldier individually pays his own fares for being carried back and forth, and the only penalty fixed in the contract for any non-observance of its terms is not a military arrest or other military punishment, but simply a forfeiture of the rights acquired by such contract. The case presented is sin ply of a firm of individuals residing in Jacksonville engaged in and presumably licensed to do a general business of running auto buses and automobiles for hire over the streets of said city who, as an incident of their general business make a side contract so to speak with an officer in command of an encampment of United States soldiers by which they acquire a monopoly of conveying such soldiers back and forth to and from such- camp, and by which for a consideration individually paid by each soldier who becomes a passenger on their line they agree to convey such soldiers back and forth between said city and said camp. The government of the United States having no interest in or ownership over any of the autos used. Under these circumstances we do not think that the petitioner is exempt from the payment of his license tax, and the writ of habeas corpus is, therefore, hereby denied.

Whitfield, Ellis and West, J. J., concur. Browne, C. J., dissents.