William Atkins, Plaintiff in error vs. Paul G. Phillips, Chief of Police of the City of Jacksonville, Defendant in error, 26 Fla. 281

Raney, C. J.: The 28th

section of “An ordinance to reg- ulate the vending of fresh meats, dressed poultry and fish, and to establish and regulate markets,” adopted by the City Council of Jacksonville, and which was approved by th’e Mayor, August 9, 1890, provides that a violation of any of the provisions of the ordinance shall be punished by a fine not exceeding $500, or by imprisonment for a term not longer than three months for the same offence. The fourth

section of the third

article of the charter act,

Chapter 3775, statutes of 1887, enacts that the Mayor and City Council “shall within the limitations of this act have power by ordinance * * to impose fines, forfeitures, penalties and terms of imprisonment for the breach of any city ordinance, but no penalty shall exceed five hundred dollars, and no term of imprisonment shall be for a longer term than three months for the same offenseand the first

section of the tenth

article provides for a municipal court for the trial of all offences against the municipal ordinances. It is contended on behalf of plaintiff in error that the ordinance is invalid because the 28th

section leaves it to the arbitrary discretion of the Judge of the Municipal Court to assess such a fine, not exceeding five hundred dollars, or imprisonment for such a term not exceeding three months as he may see fit in each particular case before him. The cases of Mayor and Aldermen of Mobile vs. Yuille, 3 Ala., 137; Commissioners vs. Harris, 7 Jones, 281; State vs. Crenshaw, 94 N. C., 877; State vs. Cainan, Ibid, 883; State vs. Rice, 97 Ibid, 421, are relied upon to support this position. In Mayor, etc. vs.

Yuille, the penalty as prescribed by the ordinance was “not more than fifty dollars,” and it was held to be void for uncertainty. "The penalty,” says the opinion, which refers to cases collected by Angelí & Ames on Corporations, 200, and Wilcock on Corporations,

Section 302, “must be a sum certain, and cannot be left to-the arbitrary assessment of the corporation court, to be determined according to the nature of the offence. It is also said that although the utmost limit of the penalty be fixed, beyond which the fine cannot extend, that it does not remove the objection. The reason assigned is that it permits the corporation to be a judge in its own cause.” This decision was expressly overruled in Mayor, etc. of Huntsville vs.

Phelps, 27 Ala., 55, where it was held that a municipal by law is not rendered void for uncertainty because the amount of the penalty imposed for its violation is left discretionary, within fixed limits, with the Municipal Court; and it is said in the opinion: the fact that the corporation is made the judge in its own cause is no objection since it applies whether the penalty is for a specific sum, or is fixed within certain limits ; the question whether the ordinance has been violated is to be determined in either case by the corporation ; the penalty being any sum “not exceeding fifty dollars,” a reasonable discretion is given to be exercised within certain limits; and we can see no objection which could be urged to such a by-law which could not with equal propriety, be made to any law investing courts or juries with discretion in apportioning the fine to the offense, the fine being restricted within reasonable bounds.

The law as stated by Judge Dillon in his work on Municipal Corporations, Sec. 341 (4th ed.), is that such a corporation of this kind with power to pass b}'-laws and affix penalties, may, if not prohibited by the charter, or if the penalty is not fixed by the charter, make it discretionary within fixed reasonable limits; that this enables the tribunal to adjust the penalty to the circumstances of each particular case ; and that the older English authorities, so far as they hold such a by-law void for uncertainty, are regarded as not sound in principle and ought not to be followed. See State vs.

Cantieny, 34 Minn., 1. There is in the North Carolina cases nothing that to our minds establishes the correctness of the overruled Alabama case; in the leading one of them, Commissioners vs.

Harris, the ordinance provided that the offender should be carried before the Police Magistrate and fined “not less than one, nor more than twenty dollars,” and the Supreme Court held it void for “vagueness and uncertainty.” It is said, however, in the opinion that this method of imposing penalties commended itself as leaving the matter open until the eyidence is heard, and the aggravating or mitigating circumstances are found, but that the method was impossible on account of the settled mode of procedure in that State, which mode was that the proceeding when brought to the Superior Court on appeal, which appeal vacated the judgment of the Police Magistrate, vwas a civil one in the nature of an action of debt, and such action obtained only for a certain amount, which a sum • “not less than one, nor more than twenty dollars” was not; and there was no power in the Superior Court for the judge or jury to fix the punishment.

No such difficulty, it may be observed, exists with us. The proceeding before the Municipal Court of Jacksonville is criminal in its character, and so it is on appeal in the Circuit Court, and the judgment to be rendered by the latter tribunal is one of affirmace or reversal. Ex-parte Peacock, 25 Fla., 478. A decision—Mellick vs. Washington, 47 N. J. Law, 254, if not that of State vs.

Zeigler, 32 Ibid, 262—suggests at least more distinctly than those mentioned above the want of power in the council to leave to the magistrate the duty of fixing the penalty for each particular offender according to its circumstances, within the limits prescribed by a charter act like that in question, and holds that the council must fix the exact penalty for each case. Our opinion, following the line of Judge Dillon’s views, and the Alabama and Minnesota courts is, that it was not the purpose of the Legislature to thus restrict the law-making power of the city.

It is to our minds much more just and reasonable that the ordinance should prescribe the limits of punishment for each character of offense, and that the tribunal created to try the offender should fix the punishment in each particular case according to its mitigating or aggravating circumstances than that one penalty should be prescribed by the council for all offendings against any one ordinance. Such, as far as we have any information, has been the uniform practice in this State ; and the function performed by the trial court is one within the contemplation of the organic act providing for it.

The Constitution,

Section 34,

Article V, authorizes the Legislature “to establish in incorporated towns and cities courts for the punishment of offences against municipal ordinances.” This it has done in the case before us, and the function of adjusting the punishment within the limits prescribed by the municipal law, is judicial in its character. We think the objections urged to the ordinance are not valid. II. The next objection is, that the ordinance was -not passed in accordance with Rule 26 governing the council in such cases. This rule is one of a series adopted June 11, 1889, under

Section 1 of

Article 3 of the Charter Act, as amended May 16, 1889, by

Chapter 3932 of the statutes, which provides that the council may determine its own rules of proceeding and is as follows : “In acting upon ordinances, the whole ordinance shall be first read and then passed, or otherwise disposed of, by a majority vote of the members present; if passed on first reading, it may then be taken up, placed on second reading, by a like vote, read by sections and passed, or otherwise disposed of, by the same vote, and if passed on second reading, it may then be read as a whole, as passed on said second reading, and passed, or otherwise disposed of; Provided, no amendments shall be in order on the third reading; provided, further, no ordinance shall be put upon its third reading at the same meeting at. which it is read the first time, except by unanimous consent of the council; and provided, further, the vote on the third reading shall be taken viva voce on the call of the roll, the affirmative vote of a majority of all the members of the council being then necessary for its passage.” The point is, that the “unanimous consent of the council” required by this rule to put an ordinance on its third reading at the same meeting at which it is read the first time, means the unanimous consent of the entire council, and that the unanimous consent of a less number present and constituting a quorum is not sufficient.

The charter act provides in the

section last mentioned that a mojority of the members of the council shall be required to form a quorum for the transaction of business; but a smaller number may adjourn from day to day.

A majority of the whole number of members constitute, when assembled, and, in the eyes of the law are, the “council” for the transaction of business, as much and as effectually as the whole number are, and wherever the action by the council is required, or the council is referred to in connection with the “transaction of business,” a majority of the whole number of members will fill the requirement or answer the reference, unless there is something in the language of the requirement or reference expressly calling for a larger number.

The term “council” as used in the rule in connection with the requirement of unanimous consent, means, the council, or the members, present at the time of the proposed action of putting a bill on its third reading. Of course there must be present a majority of the whole number of members to constitute a quorum, at least ten of the eighteen, but whether there are present only a majority, or the eighteen members, or any intermediate number, the. consent of all actually present is necessary.

A majority vote of the quorum can put the proposed ordinance on its second reading, but to put it on its third reading on the same day that it was read the first time, the unanimous consent of all present, whether a bare quorum or more, is required by this rule. Its language is not susceptible of a construction requiring more. The last proviso of the rule, in so far as it requires a “majority of all the members of the council” for the final passage of a proposed ordinance is nothing more than the requirement of the second

section of the third

article of the organic act. P. 164, Acts of 1887. The ordinance in question has received the approval of the Mayor, and even if the point had not been abandoned in this court on the oral argument, there could be no room for the application of the provision of the

section of the charter act last mentioned: that no ordinance, nor 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. III. The remaining objection urged against the ordinance is that under the guise of using the police power to regulate the vending of meats, poultry, etc., and to provide for and regulate their inspection, it levies a tax for the purposes of revenue. The grounds of this contention' are the amount of the license fee, which is five dollars per month, and the fact that the license has to be taken out monthly.

In City of Jacksonville vs. Ledwith, 26 Fla.,-, S. C. 7 So.

Rep., 885, where the present charter of the city was under consideration, we held that the grant of power to regulate the vending of meats, poultry, fish, etc., did not give power to tax for purposes of revenue the occupation of vending any of the named articles, but that it, in connection with the grant of power to regulate inspection of beef and other provisions, would justify the imposition of such fees and charges as would cover the expense of both inspecting the articles of food offered for sale and of the police supervision of the business necessary to prevent its becoming hurtful to the community.

The amount of a license fee or charge is to be considered in determining whether the exaction is not really one of revenue or prohibition, instead of one of regulation under the police power. The amount will be presumed to be reasonable unless the contrary appears on the face of the ordinance, or is by evidence shown to be so. Van Hook vs. City of Selma, 70 Ala., 361; Commonwealth vs. Patch, 97 Mass., 221; St. Louis, vs. Webber, 44 Mo., 350; Van Baalen vs. People, 40 Mich., 258.

The amount of the fee might in some cases be so large, as to suggest of itself, considering the character of the business to which it was applied, that it was in fact a tax for revenue, but considering the nature of the subject regulated by the ordinance before us—the sale of fresh meats, dressed poultry and fish, in a city containing at least seventeen thousand inhabitants, in buildings away from the public market, which buildings, as well as the articles offered for sale, are deemed by the local-authorities to require, for the' protection of the health of the community, daily inspection and supervision—we cannot undertake to say that it will not require five dollars per month to pay the expense required by the issue oí the license, and by inspection and supervision.

The amount does not, in view of the character of the business, and the other facts appearing in the record, satisfy us that the law-making power of the city has attempted an abuse of its trust and a wrong upon those who may desire to pursue the avocation regulated. It seems from this statement that in the year 1888 there were 37 of these places of business, called Private Markets, where fresh beef was sold, and in 1889 there were 25 of them ; whereas, at the date of the passage of the ordinance in question there were only 22.

Also that in 1888 there were one City Physician with a salary of $900 per annum, and four sanitary inspectors, one having a salary of $720 per annum, and the others at $600 per annum, and in 1889, there was a City Health Officer, with a salary of $2,000 per annum, and four sanitary inspectors with salaries of $720 each; and that in the present year up to the date of the ordinance, August 1 ith, there had been in the employ of the city one health officer at a salary of $1,200, out of which he is required to pay clerical help $600 per annum, one sanitary inspector at an annual salary of $840, and four sanitary patrolmen with salaries of $720 each per annum.

That before this ordinance there was no city officer whose special duty it was to inspect markets and the fresh meats offered for sale, or to perform any other duties of the present officer, the Market Inspector, provided for by such ordinance, and such inspection as was made at all was made by Sanitary Inspectors and patrolmen, and no special license was required to engage in the business of selling fresh meats, and any person could engage in such business without paying any special fee or charge for inspection.

This agreed statement shows that in 1888, when there were 37 so-called private markets, there were only five health or sanitary officers, and that they were paid $3,400; and in 1889, when there -were 25 such markets, there were likewise five such officers who were paid an aggregate of $4,480, or $1,460 in excess of the former year, and in the present year up to the approval of the ordinance there have been only 22 of the markets, yet six officers who were paid at the aggregate rate of $4,920 per annum, including $600 for clerical hire.

From these facts and the further one that this year the ordinance in question has created the office of Market Inspector at a salary of eighty-five dollars per month, payable monthly, the reasonableness of which salary is not impugned, and has imposed the charge of five dollars per month on each market, the charges on 22 markets aggregating $110 per month, it is argued that the deduction is clear that the city placed itself in a position, by the passage of the ordinance, to obtain one hundred and ten dollars per month with which to pay eighty-five dollars per month as the salary of a new officer, or to obtain $1,320 per annum to pay a salary of $ 1,020.

Thus far the statement of the facts shows that there is an excess of twenty-five dollars per month over expenses, but it is also agreed that the issue'of each license reasonably costs fifty cents, and thereby the excess is reduced to eleven dollars per month, and then follows the further agreed statement that the city is compelled “for the sake of regulating the sale of fresh meats so as to protect the health of the people,” to pay for the removal and destruction of the bad meats, and that it has to furnish stationery for reports.

What the cost of removing and destroying bad meats from these “private markets,” or of the stationery necessary for reports as to their regulation and inspection may be, is not shown, nor can we assume that these items will not consume the eleven dollars. It is a subject on which we could have no judicial knowledge, even if it were certain that the number of these markets would continue to be twenty-two. The margin is too small to permit us to assume that it will more than pay the expenses of the items of which no estimate is given.

In view of these unexplained items we do not see that the deduction is either “ clear ” or permissable, that the lawmaking power of Jacksonville has placed itself in a position to obtain one hundred and ten dollars per month with which to pay eighty-five.

It is expressly agreed that “ the ordinance is the declaration of the legislative judgment of the city authorities that it was impracticable to have the markets and fresh meats so inspected as to prevent the sale of meats which are unwholesome and dangerous to the health of the public, without the employment of a special inspector, whose sole duty this should be, and that the employees of the health department claimed that the other duties left them no time to inspect the markets,” and upon the facts presented by the record, we think it must be assumed that the purpose of the law-making power was that the fourteen dollars should be used to pay the items of expense of which no estimate is given by the parties, and that there is no error in its judgment that a less amount would safely answer the requirement.

As is said in Van Baalen vs. People, supra: The subject will not admit of nice calculation, and it would be futile to require anything of the kind; and where the power to license is not evidently abused and made a pretext for doing what is contrary to constitutional right, the courts ought not to interfere with municipal discretion. Parties conducting the business in question away from the public market, and thereby rendering additional police expense indispensable to the preservation of the public health, may be required to bear the reasonable additional expense they occasion.

The city cannot make gain under an illegal exercise of the police power, and if it shall at any time appear or be shown that she is doing so, the regulation by which it is effected will be held void. This should be kept in careful view at all times by the authorities, for though the courts will not be astute to avoid the regulation by making nice calculations, they should promptly arrest any clear abuse of the power. That the license has to be taken out monthly, each one expiring on the first day of the succeeding month, does not suggest anything unreasonable.

Assuming that the fee is reasonable, we think the plan adopted is more considerate of the pecuniary convenience of parties who may desire to en gage in the business, than the prescription of a longer period, and hence a larger payment for each license would be. We have not failed to consider carefully the view announced by Judge Deady in the Laundry License case, 22 Fed.

Rep., 699, 704, where there “ was nothing in the business or proposed regulations for which the city was likely to incur any special expense,” that the provision requiring the license to be taken out quarterly is strongly suggestive of revenue rather than regulation. The judgment is affirmed.