Harry T. Howland, City Treasurer of the City of Pensacola, Plaintiff in Error, v. State ex rel. John Zirklebach et al., Defendants in Error, 56 Fla. 422

Cockrell, J. On April 21, 1908, the City Treasurer of Pensacola sued out his writ of error to the judgment of the circuit court entered October 26, 1908, awarding a peremptory writ of mandamus commanding the issuance of a receipt from the city as a basis for a license to John Zirklebach & Company. The alternative writ attacks the validity of a

section of an ordinance of the city of Pensacola passed September 25, 1907. The first

section prohibits any one engaging in the business of a dealer in spirituous, vinous and malt liquors without payment of a license tax of one thousand dollars. The second

section provides that outside a certain designated limit, the license for such dealer “shall be fifteen h,iindred dollars /in addition to the amount prescribed in

section one.” The rela,tor’s place of business was outside the designated limit and he tendered the amount required under

section one. We must accept as true all the allegations of fact properly averred in the alternative writ, the defendant, plaintiff in error here, having declined to take issue, thereon. From these allegations we learn that the restricted district embraces an area approximately 500 yards by 700 yards, embracing a portion of the business

section of the city and also many dwellings, while the outside area of many square miles embracing a large portion of the entire business

section of the city and also resi- , dences, the restricted area embraces parts of Election Districts 13 and 14, and. the entire city embraces also Election Districts 12 and 15; prior to the passage of the ordinance the restricted area contained twenty-two licensed drain shops as against eighteen outside; and that the cost of police protection and regulation is no greater in the $2500 district than in the $1000 district. It further appears that relator had been for years before in tíre business and had a large stock of liquors on hand and has secured his state and county license.

We -think the proper remedy was pursued; the writ of mandamus has been frequently applied in kindred cases in this jurisdiction as will be shown by an examination of our Reports and would seem to be the specific adequate remedy. State ex rel. Bash v. County Commissioners of Jefferson County, 20 Fla. 425, text 427; State ex rel. Norman v. D'Alemberte, 30 Fla. 545, 11 South. Rep. 905; State ex rel. Hubbard v. Holmes, 53 Fla. 226, 44 South. Rep. 179.

The power 'to impose this discriminating license tax or permit must come if at all from certain general powers conferred by the legislature upon the city of Pensacola; there is no specific legislative authority to charge different amounts of licenses for the same kind of occupation or businesses '60 be conducted in different portions of the city.

These general grants are “to- pass for the government of the city any ordinance not in conflict with the constitution of the United States, the constitution of Florida, and statutes thereof;” “to regulate and restrain all tippling, bar-rooms and all places where beer, wines or spirituous liquors of any kind is sold at retail or to be drunk on the premises;” “Licenses shall be fixed at not exceeding fifty per cent, of the state licenses fixed by the legislature, except for purposes of restraint.” It is further contended that additional power was conferred by

section 2 of

Chapter 5088, Laws of 1901, whereby the city was authorized to “impose license and occupational taxes upon all trades, professions and businesses conducted within 'the city limits,” whereby it is claimed the -cilty may charge more than hlalf of the amount fixed by the State, whether for revenue, regulation or restraint It is unnecessary to decide now whether the later act repeals or enlarges thie former.

The applicant admits the right of the city to charge fourfold the amount fixed by the legislature as the state license by tendering the one thousand dollars, but objects to the discrimination whereby, under the conditions as admitted to 'exist, he is called upon to pay an additional fifteen hundred dollars. Strictly as a revenue measure, the power -would not seem to exist under the decision of this court in Ex parte Simms, 40 Fla. 432, 25 South. Rep. 280.

There we held that under general powers the city of Jacksonville could ndt split up the business of selling spirituous, vinous and malt liquors, so as to impose a special tax upon the sale of beer by wholesale, differing from that imposed upon the sale of other intoxicating liquors.

This scheme of discriminating in the amounts of the license tax as between different parts of the city is at variance with the settled policy of this State in charging a uniform license irrespective of the portion of the State in which thie business is to be conducted; nor is this affected by requiring an additional amount to be oaid the counties when the saloon is located outside a municipality, the licensee being required to pay the same amount in the latter case the county not being required to share with the municipality.

The power to regulate or restrain, short of absolute prohibition, Ex parte Theisen, 30 Fla. 529, 11 South. Rep. 901, is not an absolute, arbitrary power, but must be exercised in a reasonable manner.

We indulge presumptions in favor of the reasonableness of an ordinance, out of deference to the superior opportunities for knowledge of the actual existing conditions in municipalities possessed by the city council over us, and we are fully alive to the powerful arguments that may be advanced in favor of restricting saloons within limits easily policed, but we are bound by the fixed rules of law requiring a close scrutiny of statutes conferring authority to impose taxes, and the suspicion always aroused by discriminations apparently excessive.

There may, it is true, be other considerations than those negatived in the alternative Writ, which would support a substantial discrimination, when discrimination is authorized; • but due most important are those arising from idle costs of the regulation and the character of the buildings within the two sections, as being devoted to business or residence purposes. We decide nothing now, however, but that 'the Showing here made overcame the prima facies of reasonableness of the ordinance, and that the burden was shifted to, and unmet by 'the respondent. The judgment is affirmed. Shackleford, C.

J. and Wfiitfield, J., concur; Taylor, J., concurs in the opinion.