Bishoff v. State ex rel. Tampa Water Works Co.

Mabry, J. (After stating the facts.) In this, a mandamus proceeding, the Circuit Court decided on the alternative writ and return thereto, shown by the statement of the case, that it was the duty of plaintiff in error, as tax assessor and collector of the city of Tampa, to issue to defendant in error a license to conduct its business in said city from the first day of October, 1900, to and including the thirtieth day of September, 1901. The duty to issue the license exists, it is claimed, under the ordinance of the city passed in 1899, and numbered 232. Ordinance number 245, approved September 29th, 1900, provides for the issuance of licenses from the time it went into effect, which was subsequent to the first of October, 1900, and for periods of time prior to this, ordinance number 232 is the only one called to our attention which imposes any duty to issue the license demanded by the defendant in error and awarded by the Circuit Court. If the ordinance number 232 was not in force and imposed no duty upon plaintiff in error as tax assessor and collector of the city of Tampa to issue to defendant in error the license demanded when the alternative writ was awarded, the decision rendered can not be sustained. Though defendant in error may have been entitled to a license when it was demanded and when suit was instituted to obtain it, yet if the ordinance was repealed and the duty to issue the license under it ceased before the cause was heard, the peremptory writ should not have been awarded. Courts do not determine mere abstract questions, and in mandamus proceedings will not proceed in a cause which involves only a right that has ceased to exist. This remedy can not — 80 — be employed to accomplish á useless thing. This court has announced this rule, and it is generally sustained. State ex rel. Vereen v. Commissiners of Marion County, 27 Fla. 438, 8 South. Rep. 749; State ex rel. Bisbee v. Board of Inspectors, 17 Fla. 26; Cutcomp v. Utt, 60 Iowa, 156, 14 N. W. Rep. 214; 13 Ency. Pl. & Pr. page 493, sec. 2. This general rulq is not questioned by counsel for defendant in error, but it is insisted that it does not apply to this case for several reasons. One is that ordinance No. 232 was in full force on the first day of October, 1900, when defendant in error tendered and paid to the city tax assessor and collector the sum of $150 the amount of the annual license tax thereby imposed, and that a contract right to the license was thereby acquired that no subsequent ordinance could impair. We can not accept this as a correct legal proposition. - It is evident that the ordinances in question undertook to impose a tax in pursuance of a taxing power, and not simply as a police regulation. A license tax, as such, does not create any contract right. In his treatises on State and Federal Control of persons and property, Tiedeman says (Vol. 1, page 502) that “a license tax, as a tax, confers no right of any kind; it simply lays a burden upon an occupation, and creates the duty to pay the tax.” See License Tax Cases, 5 Wall. 462. Home Ins. Co. v. City Council, 93 U. S. 116. This is the correct rule in reference to the imposition of a tax as such, and we are unable to find authority to sustain the contention that defendant in error acquired a contract right to have a license issued under ordinance number 232. It is further contended that ordinance number 245 is void because the city of Tampa had no power to levy — 81 — a license tax, as a tax, and in this respect the ordinance violates the constitution of the State and the city charter of Tampa; and further, that it provides an illegal method of collecting the tax sought to be imposed, in that it is made a criminal offence not to pay it. Defendant in error based its right to the license upon ordinance number 232, and proceeded upon the assumption of its validity. The judgment of the court has no basis of support upon any other theory than that said ordinance was legally enacted, and imposed the corresponding duty upon defendant in error to pay the tax imposed, and the issuance, or preparation, of the license by plaintiff in error. Ordinance number 232 contains the same penal clause and was enacted in pursuance of and by virtue of the same powers conferred upon the city that the subsequent ordiances numbered 245 and 246 contain and under which they were enacted, and if it be true that the latter ordinances are void for the reasons stated, it would necessarily follow that ordinance number 232 is also void for the same reasons. The result would be, accepting the position of defendant in error here to be correct, that the judgment of the court was erroneous and must be reversed. Objections to ordinances numbered 245 and 246 on the grounds of a want of power in the city to pass them, and the mode of their enforcement, are inconsistent and in conflict with the assumption that ordinance number 232 was valid, and we will assume, for the purposes of this'decision, as no doubt the Circuit Judge decided, that the city of Tampa had the power to pass ordinances imposing a privilege tax on occupations and businesses and enforce them in the manner provided in the ordinances in question. — 82 — It is argued on behalf of defendant in error that ordinances numbered 245 and 246 are void because they impose an additional license tax, or two license taxes on the same business in one year. Assuming that the city of Tampa had the power to impose a privilege tax on businesses, occupations and professions, we do not find it necessary to decide whether this power would authorize the imposition of more than one tax in the same year, for.the reason that ordinances numbered 245 and 246 do not, in our judgment, undertake to impose such taxes. These ordinances were passed at the same session of the city council, though on different days, relate to the same subject-matter, and must be construed together. It is evident that the city council just prior to the expiration of the fiscal year ending September 30th, 1900, determined to substitute a new license tax ordinance to go into effect as soon as possible after its enactment. For this purpose ordinance number 245 was passed on the 28th and approved on the 29th of September, 1900, but as the city charter provides (amendment in 1899) that “all ordinances of the city of Tampa, before they shall become a law or take effect, must be published at least five days in some newspaper published in the city of Tampa,” it could not go into operation until after the fifth day of the following October. When operative it would, if valid, control, the amounts of license taxes thereafter to be paid. During an adjourned session of the council, extending at least to the first day of October, it became known that parties engaged in business in the city and affected by the new ordinance, were. paying the taxes provided by the former ordinance number 232 and demanding licenses thereunder, and thereupon ordinance — 83 — number 246 was passed which, together with number 245, became law after due publication as required by the charter. The latter ordinances are inconsistent with and repeal ordinance number 232, except in the cases where the amounts of the license taxes fixed under both ordinances are the same, and then it was provided that if the tax had been paid and license obtained under ordinance number 232 prior to the taking effect of number 245, no further license should be secured under the latter ordiance. Such was not the cause with the amount that defendant in error was required to pay to secure a license. If taxes had been paid during the time mentioned under ordinance number 232 and none were required by the subsequent ordinance, they were to be refunded, and where there was an increase in amounts to be paid, and payments had been made prior to the taking effect of ordinance number 245, credits were to be allowed of what had been paid. It was not a scheme to* impose double license taxes for the' same fiscal ¡year, but to modify and change the former tax ordinance on the subject of license taxes, and the right to pass an ordinance includes the power to repeal or modify it, provided no rights secured by constitutional provisions are thereby violated. We can not see that defendant in error had acquired any such right. After the taking effect of the subsequent ordinances 245 and 246, there was no duty left under ordinance number 232 to issue any license to any person, and without such duty mandamus does not lie. Again it is contended that ordinance number 245 is void because the amount required to- be paid by defendant in error is unreasonable. It is not claimed, as we — 84 — understand it, that the entire ordinance is void because of the amount required to be paid by defendant in error. Other amounts thereby required may be reasonable, and it is expressly stated in the ordinance to be the sense of the council that it was to be construed distributively. In this case it'is entirely unnecessary and useless for us to undertake to decide anything in reference to the reasonableness of ordinance number 245 in respect to the amount required from defendant in error. If we were to decide that the amount was unreasonable and eliminate it entirely from the ordinance, it would not make it the duty of plaintiff in error to issue a license under ordinance number 232. No valid attack is made on ordinance number 246, and it clearly provides that payments made under 232 prior to the time when 245 shall take 'effect for engaging in a business for which no license is required under the latter, the amount so paid shall be refunded upon surrender of the license issued. If the tax required from defendant in error be struck out as unreasonable, then no license would be required as to it, by ordinance number 245, and no duty would devolve upon plaintiff in error under any ordinance to issue the license which has been directed to be issued. In the case ■supposed defendant in error might be entitled to have its money refunded, but certainly not to a license to engage in its business. Under no view we have been able to take of the case ■can the proceeding by mandamus be sustained, and it is ■our judgment that the decision directing plaintiff in error to issue the license is erroneous. No point is presented here in reference to the right of defendant in error to register in a book to be kept by — 85 — the assessor and collector for that purgóse. The city, it seems, provided no such book, and the peremptory writ awarded nothing in reference to the registration. As no question on this point is presented, no.further reference is made to it. The judgment is reversed with directions to overrule the demurrer to the return, and for further proceedings in accordance with this opinion. Ordered accordingly.