F. A. Hardee, Marshal of the City of Miami, a Municipality, Plaintiff in Error, v. R. E. Brown, Agent of the Southern Express Company, a Corporation, Defendant in Error, 56 Fla. 377

Whitfield, J. The defendant in error presented to the judge of the circuit court for Dade county, a petition alleging that he is unlawfully detained in the custody of F. B.

Hardee, marshal of the city of Miami, upon a charge of failing to pay the license tax imposed upon the Southern Express Company, for the year beginning October ist, 1907, that petitioner is agent of said company and is liable as such agent for a proper occupation tax, that said company is doing business in the city of Miami, that petitioner has been ready at 'all times to pay the occupation tax of fifty dollars prescribed by law, while the city requires the payment of one hundred dollars as said occupation tax, Which is unlawful.

The return of the mlarshal is that he holds petitioner under a judgment of the municipal court imposing a fine for doing business as agent of the express company without paying the One hundred dollars required of him. A writ of habeas corpus was prayed and issued. An agreement was filed in effect conceding the. facts alleged in the petition, and also- that petitioner is manager of the Southern Express Gompany iat Miami, and that the city of Miami lias a population of between five and tear thousand people.

The defendant mloved to quash the writ on the ground that the Validity of the city ordinance exacting the greater license cannot be tested in habeas corpus. This motion was denied and defendant took an-exception. The circuit judge discharged the petitioner from the custody of the mlarshal, and granted a writ of error to the defendant.

Section 2257, of the General Statutes provides that the judge hearing the cause, or a Justice of 'the Supreme Court, shall grant to- any party aggrieved by the judgment in a habeas corpus proceeding", including the State or any officer, or political subdivision thereof, a writ of error returnable to the Supreme Gourt. It is essential that the writ of 'error be granted by the judge who heard the cause, -or by a Justice of the Supreme Court, 'as required by tlhe statute. See State ex rel. Porter v. Vinzant, 49 Fla. 130, 38 South. Rep. 366; Wright v. State, 32 Fla. 472, 14 South. Rep. 43.

See also Ex parte Cox, 44 Fla. 537, 33 South. Rep. 509, 61 L. R. A. 734_ _ The defendant in error moved to dismiss the writ of error because it was not served according to 'law or filed ir; the office of the clerk of thle circuit court. The writ of error was issued under

section 1698, by the clerk of the trial court. Such a writ is a writ of this court though issued by the clerk of the circuit court, and the original writ is required' to' be returned to' this Court. See First Nat. Bank of Orlando v. King, 36 Fla. 25, 18 South. Rep. 1. The writ of error was -issued by ithe clerk of the circuit court and this i's a sufficient service and filing of it in the circuit court, -the judgment of which is' complained of, as required by

section 1698 of the General Statutes. The transcript states that the writ of error “whs issued and filed.” Upon writ of error in habeas corpus proceedings, it is necessary in order to give the appellate court jurisdiction of the person of the defendant in error that a, scire facias be properly issued and served as was done in this case, unless it be waived by appearance or otherwise. See Belch v. Manning, 55 Fla. 229, 46 South. Rep. 91. The motion to dismiss the writ of -error is- denied.

Habeas corpus cannot be used to take the place, or to serve the purpose, of a writ of error to determine whether a judgment and sentence is erroneous when the court has jurisdiction of the person and "the conviction is of ar offence under the law and within the. jurisdiction of the court to try. Ex parte Bowen, 25 Fla. 214, 6 South. Rep. 65; Ex Parte Prince, 27 Fla. 196, 9 South. Rep. 659, 26 Am. St. Rep. 67; Bronk v. State, 43 Fla. 461, 31 South. Rep. 248, 99 Am. St. Rep. 119; Ex parte Williams, 26 Fla. 310, 8 South. Rep. 425.

Where a person is held in custody under a judgment of conviction and the judgment and sentence is assailed on the ground that it is void because it is based on a charge made under an invalid provision of a statute, and the charge constitutes no* offence under the laws of the State,' the validity of the stalttuie defining' the offense may be determined in habeas corpus proceedings. Ex parte Knight, 52 Fla. 144, 41 South. Rep. 786; Hayes v. Walker, 54 Fla. 163, 44 South. Rep. 747; Ex parte Baily, 39 Fla. 734, 23 South. Rep. 552.

A parson held in custody under a sentence of a municipal court upon a conviction on a charge based on an ordinance 'alleged to he void may test the validity of the ordinance. in habeas corpus proceedings and may be discharged from custody if -the ordinance is void. State ex rel. Worley v. Lewis, 55 Fla. 570, 46 South. Rep. 630; Ex parte Sims, 40 Fla. 432, 25 South Rep. 280; Ex parte Theisen, 30 Fla. 529, 11 South. Rep. 901, 32 Am. St. Rep. 36.

Municipalities are legal 'entities established for local governmental purposes, and they can exercise only such authority as is conferred by express or implied provisions 0 f law. The existence of authority to* act cannot be assumed, bu!t it should be made to appear. When the authority to act appears the correctness of the action taken thereunder may be presumed until the contrary is shown.

Every act of á municipality through its ordinances should be within the powers .expressly or impliedly conferred, should be' based upon a proper classification of subjects, should be reasonable and applicable to all under practically similar ¡conditions and circumstances, and should not violate any provision or principle of law. See State ex rel. v. Tampa Water Works Co., 56 Fla. 47 South. Rep. 358; Florida Cent. & P. R. Co. v. Ocala St. & S. R. Co., 39 Fla. 306, 22 South. Rep. 692; Galloway v. Town of Tavares, 37 Fla. 58, 19 South. Rep. 170; Hayes v. Walker, 54 Fla. 163, 44 South. Rep. 747.

The constitution contains the following provisions:

Section 24,

Article III, “The legislature shall establish a uniform system of county and municipal government, which shall be applicable except in cases where local or special laws are provided by the legislature that may be .inconsistent .therewith.”

Section 8,

Article VIII, “The legislature shall have- powfer to establish and to abolish municipalities, to provide for their government, t'o. prescribe their jurisdiction and powers, and to. alter or amend the same at any 'time.”

Section 5,

Article IX, “The legislature may also provide for levying * * * a tax on licenses.” There is nlo express limitation upon the power of the legislature to provide for levying a tax on licenses; but such power should not be so exercised as to deprive any person of property without due process of law, oír so as to deny any person the equal protection of the laws.

Chapter 5597, Acts 1907, contains the following provisions : “Section 8. Any city or town in the State of Florida is hereby authorized to impose upon any express companj'- doing business in this State having an office in such city or towln, a license tax not to exceed the sum hereinafter mlentioned, namely * * * in cities of five thousand to fen thousand inhabitants, fifty dollars.” “Section 16. That nothing in this act shall be construed as in any way abridging or limiting the powers 'Which have been granted or may be granted 'to any municipal corporation by special aat or charter act for the purpose of requiring the payment of license taxes.”

Chapter 5823, Acts of 1907, establishing the municipality of the city of Mliarni, provides:

Section 20-. The city council shall have the power to make * * * such ordinlances in writing * * * not inconsistent with this charter, the constitution and laws of the United States, as they may deem necessary: provided, a majority of thie city council shall assent thereto'.

They shall have power to pass all such ordinances and prescribe penalties for the violation, thereof, as may be necessary * * * to license privileges, business, occupations and professions carried on and engaged in within the city limits, and the amounts of such license and the amounts of such license taxes shall be fixed by city ordinance, which amounlts of said taxes shall not be dependent upon a general State revenue law.” The ordinance of the city of Miami fixes the license tax for each express company having an office in the city at one hundred dollars. It is contended 'that as

Chapter 5823, 'establishing the city of Miami, became effective Miay 27th, 1907, and

Chapter 5597, relating to license taxes became effective sixty days after the final adjournment of the legislature, the latter act repealed the formler act in so' far as it is inconsistent therewith, particularly since the latter act contains a provision “that all laws and parts of laws in conflict with the provisions of this act are hereby repealed.”

Chapter 5597 prescribes the license tax that may be imposed by any'city of the State having the population of the city of Miami, and also expressly provides that nothing in the act shall be construed as in any way abridging or limiting the powers Which have been granted or may be granted to any municipal .corporation by special or charter act for the purpose of requiring the payment of license taxes.

The effect of this statute is as contemplated by the constitution to provide a uniform authority to the cities and towns of the State to- impose the specified license tax where no inconsistent authority is given to .any municipal corporation by special or charter act.

The special charter act establishing the city of Miami expressly and specifically enacts tha't the city council may pass ordinances and prescribe penalties for the violation thereof, to license privileges, business, occupations and professions carried on and engaged in within the city limits, and the amounts of such license taxes shall be fixed by city ordinance and shall not be dependent upon a general State revenue law. The general act

Chapter 5597 became effective subsequent to the special charter act

Chapter 5823, but • it does mot repeal any provision of the special act, although it in terms repeals -all laws and parts of laws in conflict with its provisions, since the special act is not in conflict with 'the provisions of the general act, when 'the provision of the general act, excluding its operation where special or charter acts are -inconsistent therewith, is Considered in connection with the sections of the constitution -above quoted. There i-s no express repeal of the provisions of the special act, and no intent to repeal such provisions by implication is apparent in the general act. See State v.

South. L. & T. Co. 45 Fla. 374, 33 South. Rep. 999. The authority given the city of M-ia-m-i in the special charter act does not appear to •■offend organic law, and the ordinance imposing one hundred dollars license tax upon ■the express company is not shown, to be violative of the constitution or laws of the United States which.is one of the express limitations of the charter act, -and wlould be implied if not expressed. In the case of State ex rel. Worley v. Lewis, 56 Fla. , 46 South.

Rep. 630; legislative authority was not conferred upon the municipality to impose a license tax different from that specified in the general license law. The legislature possesses all the law-making power of the Sítate and the limitations upon the exercise of that 'power are confined to those doatained in the Sítate and Federal Constitutions. The danstituition of the State expressly authorizes the legislature to pass, special laws conferring powers upon municipalities 'and does not expressly limit the power of 'the legislature in providing for the levy of license taxes.

The legislature may authorize municipalities to impose license taxes. See Canova v. Williams, 41 Fla. 509, 27 South. Rep. 30. Authority to impose license 'taxes is a useful municipal powter, and it does not appear that the authority conferred by thie charter act deprives any one of property wii-thout due process of law or denies to any one the equal protection of the laws.

Nor is it made to appear that the’ ordinance imposing the one hundred dollars license tax upon express companies doing Business in the city is. violative of the constitution guarantees of the property rights, or that it is unreasonable or unjustly discriminatory. No question of interstate, commerce is involved, since the license tax is imposed with reference to intrastate business, and the fadt that the company is also engaged in interstate business does not relieve it of the tax if it desires to do intrastate business. Osborne v. State, 33 Fla. 162, 14 South. Rep. 588, 39 Am. St. Rep. 99, 25 L. R. A. 120, 164 U.

S. 650. The ordinance under which (the donviatilon and sentence were had is not void upon thie ground alleged; and as no other fatal defect in the ordinance is made to’ appear, the judgment discharging the defendant in error fiom custody is erroneous and is hereby reversed. Shackleford, C. J., and Cockrell, J., concur; Taylor, Hocker and Parkhill, JJ., concur in the opinion.