Blalock v. Powledge

On September 15, 1937, Naumadean Davis Blalock was arrested by the Chief of Police of the City of Tallahassee on a warrant issued by the Municipal Court of the City of Tallahassee, Florida, the pertinent portion of which is, viz.: "* * * one Naumadean Davis Blalock did then and there unlawfully manage an agency which said agency was located in the said City of Tallahassee, Florida, the said agency being then and there engaged in soliciting business for an out-of-town enterprise, to-wit: Montgomery Ward Company, a corporation with a store and place of business located in the City of Jacksonville, County of Duval and State of Florida; and the said agency then and there maintaining display rooms and keeping merchandise in said display rooms for display purposes only, without having first procured an occupational license to manage said agency from the City Treasurer and Collector of the City of Tallahassee and paid to the said City Treasurer and Collector *Page 500 the amount of the license tax required for said license contrary to the Laws and Ordinances of said City * * *" The warrant charges violation of Ordinances of the said City and the Charter provisions and Ordinances are, viz.: "Sec. 84. Licenses. The City Commission is authorized to levy and impose license taxes, by ordinance, for the purposes of regulation and revenue, upon all occupations and upon any and all privileges, and to determine and fix the amounts to be paid, which amounts shall not be limited or restricted by the general revenue laws of the State; to provide for the collection of the same, and to provide penalties for failure or refusal to pay such license taxes * * *" Pursuant to the provisions of the City Charter above cited, the City of Tallahassee enacted the following ordinances: "Sec. 695 (383). License and Occupational Taxes Levied. — No person shall engage in or manage the business, profession, privileges or occupation hereinafter mentioned and required to be licensed within the City of Tallahassee, unless and until a city license shall have been procured from the City Treasurer and Collector of the City of Tallahassee, which license shall be then and there issued by the City Treasurer and Collector upon the payment of the amount of license tax required therefor, without any additional charge or fee whatever. The word `person' in this ordinace shall include natural and corporate `persons' and embrace the plural number, and the word `persons' shall embrace the singular number. "Sec. 699 (386). Amount of License and Occupational Taxes. — The amount of license tax levied and imposed upon every person, firm, corporation or association that shall engage in or manage any business, profession, privilege or occupation hereinafter mentioned within the City of Tallahassee, *Page 501 is hereby fixed, graded and determined at the following amounts: * * * "(Sub-section) 12. AGENCY. * * * Soliciting for out-of-town enterprises where display rooms are maintained and merchandise kept on hand as samples for display purposes only. Provided, however, that the occupational license tax hereby imposed shall not apply to establishments regularly and continuously engaged in the sale of merchandise customarily carried on hand as a part of the regular stock of such establishment (Passed November 24, 1936, No. 278, Sec. 1) .............................. $100.00" Counsel for the parties stipulate as to the facts involved and the material portions are, viz.: "The order office at Tallahassee carries samples for purposes of display only, no sales being made from the stock of merchandise carried on hand. During the year 1937 to the middle of August the average value of the samples carried in the Tallahassee order office has been $210.00. The order office also carries catalogues listing and describing the merchandise which may be purchased from the mail order house at Baltimore, Maryland. One or more persons are regularly employed at the order office to assist customers in selecting and ordering merchandise. Order blanks filled in by the customers with or without the assistance of the employees, will be forwarded by the order office to the warehouse at Jacksonville, Florida, or to the mail order houses at Baltimore or Chicago. The average number of persons employed in Tallahassee during the year 1937 to the middle of August was one and seven-tenths. Sixty-eight and nine-hundredths per cent. of the orders placed at Tallahasse during 1937 have been sent directly to Baltimore or Chicago. The remaining thirty-one and ninety-one hundredths per cent. were sent to Jacksonville. Because of the fact that many of the larger items are carried *Page 502 in Jacksonville, the orders sent to Jacksonville were higher in terms of dollar sales than those sent to Chicago and Baltimore; $18,737.00 compared to a total of $14,383.00 sent to Baltimore and Chicago. Of the total orders fifty-nine and nine-hundredths per cent. were ordered on the time payment plan, the balance being orders in which cash was forwarded with the order. The time payment orders were handled in the same way as the cash orders except that the approval of the Central Credit Office in Chicago was required before the order could be accepted. Cash orders sent to Jacksonville are accepted or rejected there. Similarly cash orders sent to Baltimore or Chicago are accepted or rejected by the mail order house to which they are sent. The Tallahassee order office has no authority to accept or reject orders, but merely forwards them to Jacksonville, Baltimore, or Chicago, depending upon the type of merchandise ordered. When the orders are accepted, the merchandise is shipped either directly to the customer or to the order office in Tallahassee, depending upon the customer's request. In terms of dollar sales, sixty per cent. of the merchandise ordered is shipped direct to the customer; the remaining forty per cent. is shipped to the order office at Tallahassee to be called for there by the customer. In the case of shipments made to Tallahassee, the merchandise to be shipped from Jacksonville, Baltimore, or Chicago to the order office on a particular day is first wrapped in individual packages, marked with the customer's name, and then collected together and shipped to the order office in a single parcel. "The manager of the order office at Tallahassee has been authorized to make minor adjustments if the merchandise is shown to be in imperfect condition at the time of its receipt. All other adjustments are referred to the mail order houses at Chicago or Baltimore, adjustments on merchandise *Page 503 shipped from the warehouse at Jacksonville being made at Baltimore. "The company also operates order offices in Florida at the following locations: Fort Myers, Fort Pierce, Gainesville, Ocala, West Palm Beach, and Jacksonville, which are operated similarly to the Tallahassee order office and to which are supplied by the Jacksonville warehouse, as well as by the the Baltimore and Chicago mail order houses. "The Jacksonville warehouse pays a city tax of $120.00 a year for a license to operate a department store, State and county taxes for licenses to sell tires and radios, and a chain store tax to the State." Counsel for petitioner contends that the ordinance, supra, is null, void and without sufficiency for reasons, viz.: "1. The ordinance is invalid because under its terms the City undertakes to exercise extra-territorial jurisdiction in that a special tax is levied upon commerce and trade carried on between two cities (Tallahassee and Jacksonville), and this power can be exercised by the State only, since the State alone has territorial jurisdiction over both cities. "2. The ordinance, as applied to this case, violates the Fourteenth Amendment to the Federal Constitution and Sections 1 and 12 of the Florida Declaration of Rights in that: "(a) It applies to an agency soliciting business for out-of-town enterprise where display rooms are maintained and merchandise kept on hand for display purposes only, but does not apply to establishments regularly and continuously engaged in the sale of merchandise customarily carried 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 *Page 504 only. The agency and the regularly established business may conduct their businesses in the same manner in reference to soliciting business for out-of-town enterprises, and yet the agency will be subject to the tax while the regularly established business will not be taxed. "(b) 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. "(c) It makes the place of origin of the goods sold (out-of-town enterprises) the feature that determines the applicability of the tax. "(3) The ordinance is invalid because it imposes a license tax that is indivisible and applies to the intrastate and the interstate business of the company and therefore places an unlawful burden on interstate commerce." Counsel for petitioner contends that the ordinance is invalid because the City of Tallahassee undertakes by the terms of the ordinance to regulate trade or business outside of the territorial limits of said City of Tallahassee and extend this authority to the City of Jacksonville, and is without power so to do, and such power and such authority is not in the City of Tallahassee, but is vested, only, in the State of Florida. The support of this position rests on the case of Duffin v. Tucker,113 Fla. 621, 153 So. 298. This Court in that case held invalid an ordinance levying a tax on persons selling, or delivering goods, wares, or merchandise in the City of Cocoa, Florida, wholesale or retail, or either, but exempting salesmen for concerns doing business in some other State or County. The facts, according to the stipulation of counsel, show that on February 14, 1933, Farris Company, of Jacksonville, Florida, operated *Page 505 through the City of Cocoa a refrigerated truck and a salesman rode on the truck from Jacksonville to Cocoa and on the aforesaid date took an order for meat from Kempfer's, Inc., to be delivered to him at Cocoa, Florida, on February 16, 1933, by the Farris Company's truck. It was a revenue measure. There was no branch store of Farris Company at Cocoa when the salesman accompanying the truck driver, took the order for the merchandise to be delivered on February 16th from the truck to the customer at Cocoa. Farris Company received no municipal benefits from said city and kept there no employees continuously to take orders and transmit the same to the head office, exhibit samples of merchandise, and assist continuously in the delivery of articles of merchandise previously purchased. We fail to see how the case at bar is affected by this authority. Counsel for petitioner cites the case of Hamilton v. Collins,114 Fla. 276, 154 So. 201. The ordinance involved therein provided that all persons maintaining an established place of business in the City of Quincy, for the purpose of business mentioned, should pay a license tax in the sum of $10.00, and that all persons not maintaining such a place of business in the City of Quincy but engaged in the same business in the City of Quincy, shall pay a license tax of $50.00. The Court held that the attempted classification of one who maintained a business in the City and paying a tax of $10.00 as against another who did not maintain a place of business in Quincy but transacted the same business therein, should pay the sum of $50.00 as a tax was an unlawful discrimination and the ordinance was void. In the case of Farris v. Hall, 115 Fla. 433, 156 So. 114, Court on rehearing said: "ON PETITION FOR REHEARING.