The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1908-12-26
Reasons Set Forth By JUS
tees Why License Law
Was Unconstitutional.
JUSTICE cockaELL PREPARED
THE OPINION, wHicH WAS CON-
CURED IN BY JUSTICES SHACK
ELFoap. WHITFIELD AND TAY-
LoR-JusTicEs pAHkniLL AND
HOOKER p,ssENrEp.

Nc following. are the opinions OF
The Florida supreme court justices de-
claring the ordinance of Pensacola
+ which fixed two separate licenses for
saloons operated in the city lnconsti.
tutional:
! In the Supreme Court OF Florida
! Division A, June term, A. D., 1905
Harry T. Rowland, city treasurer Of
the City of Pensacola, plaintiff in err
ror, VS.. State ex rel. John z,rklebach,
ct al. defendants in error.
Cockren, j.
On April 81, 1905. the city treasurer
OF Pensacola sued out his writ of error.
to the Judgment OF the circuit court
entered October &c. 1908, awarding a
peremptory writ of mandamus com
handing the issuance of receipt from
the city as basis for a license to
John Zirklebach & Company
The alternative writ attacks the
,, validity of a section or an ordinance
of the city Of Pensacola passed Sep
TENDER 25, 1907. The first section pro-
hibits any one engaging in rhe. bust
ness OF dealer IN spirituous, vim
GUS and malt liquors without payment
of license tax of one thousand dol
lars Tie second section provides
that outside a certain designated linz
1t, the license for such dealer shall
Re fifteen hundred dollars in addition
to the amount prescribed n section
one" The REALTORS place of business
was outside the designated ssmit and
he rendered the amount required I'M
der section one.
We must accept as true all the allie
cations of fact properly ayerred in
the alternative writ, the defendant.
plaintiff in error here, having declined
to take issue thereon From these
allegations we learn that The restrict
ed district embraces an area approx
imately FIVE hundred yards by seven
hundred Yards, embracing a portion
of the business section of ths city and
also many dwellings, while the out
side area of many square miles, en-
bracing a large, portion of the entire
business section Of the city and also
residences, the restricted area en-
braces parts of election districts Is
and L. and the entire city embraces
also election districts IL and Is;
Prior to the. passage of the lorlinance
the restricted area contained twenty
two licensed dram shops as against
eighteen outside: and that the cost of
police projection is no greater In the
$500 district than in the $1,000 dis
Srict 1t further appears that relator
aad been for years before IN the bus
mess aud had large stock Of liquors
on hand, and has secured his state
and county license.
We think the proper remedy was
pursued; the writ of niandamus has
been frequently applied in kindred
cases in this jurisdiction as will be
shown by an examination of our rec
ports. and would seem to sc the spe-
cific adequate remedy. Stsie ex rel.
Bash vs.. county commissioners of 9ef-
ferson county, 20 Fla. 425, te1t 42I;
state ex rel. Norman V. ID Alemberte,
80 Fla. 545, II South. Rep. 905; state
ex rel. Hubbard v. Holmes, SIS Fla.
226. ~ South. Rep. 119.
The power to impose this discrim-
mating 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 or licenses
for the same kind OF occupation or
businesses to be conducted IN different
portions of the city. These general
grants are Ito pass for he govern
nent of the city any ordinance not in
conflict with the constitution OF the
United States. the 5cons-ituJion of
Florida, and statutes thereof: to !
regulate and restrain all tippling. bar
rooms and all places where beer, !
wines or spirituoIiS liquors of any /
KIM is sold at retail or 20 De drunk |
On the PREMISES; Licenses shall be !
6xed at not exceeding Fifty per cent /
If the state licenses fired by the legis-
ature. except for purposes OF re-
straint." 80
II is further scontended that addi- |
ional power was conferred by section |
; of Chapter 50sS. Laws of 1901. |
the city was authorized to |
impose license and ocoupaiional tax |
IS upon all trades, professions and |
businesses conducted within the city's !
limits whereby il is claimed the |
,ity may charge mere than half of :
he amount fixed by the state. whether 1
'or revenue, regulation or restraint. |
II is unnecessary to decide nov !
whether the later act repesis or en-
argos the former. The applicant adj
nits the right of the cityfsto charge 1
ourfold the amount liked by the leg !
stature as the state license by tender |
ng the one thousand dollars, but OBJ /
ects to the discrimination whereby !
,nder the conditions a. admitted to |
,xisr. he is called upon 10 Jay an adj
lltioual fifteen hundred dollars.
Strictly as a revenue measure the !:
he decision of this court in Ex Parte
sinams. 40 Fla. 49,, % South. Rep
So There We held that under gener-
Il powers the city of Jacksonville
.ouid not Eplit up the business of sell
ng spirituous. vinous and malt liquors +
% as to impose a special tax upon tie
ale of beer b. wholesale. differing
rcm that imposed upons the sale OF
'ther Intoxicating liquors. This |
cheme OF discriminating In the
mounts OF the license tax as between
Inherent parts OF the city is at va.
lance with the settled policy OF this
tate in charging E unifnyn license I
Irrespective u the postion Of the state
q which the business Is 70 be con
Iucted: nor il this AFFECTED by re- +
Iuiring an additional anioun1 TO be /
aid the counties when the Saloon is
arafed outside q municipafjtS the H.