The Ocala evening star. [volume] (Ocala, Fla.) 1895-1943, 1911-09-11

| charging the defendant that "he the
said John H Spencer, who was then
and there the owner Of certain auto
| mobile Of thirty horsepower, did use
the same on the public highways Of
| Marion county, Florida. the owner
thereof, without charge, which said
lautomobile the said John H Spencer
| operated in the state of Florida more
| than fifteen days subsequent TO An
gust ), 1911, which he the said John
H Spencer did operate without paying
the license tax thereon of ten dollars"
the defendant applies for discharge on
habeas corpus alleging that Chapter
6212 of the Laws of Florida approved
June 5. 1911, insofar as the same seeks
to create a liability against the owner
| thereof who operates the same with
out charge is unconstitutional and
void.
/ Upon the examination of witnesses
before the court at the hearing,
Mr.. w. L. Colbert, the tax collector
| of Marion county. testified that the
only fees of charges for the issuance
| of the license was one and a half per
cent for the state and one and a half
| per cent for the county. of the amount
collected.
Mr.. ]. p. Galloway, the sheriff of
Marion county. testified that there was
no supervision required by the sheriff,
and that he made no other eXamina-
| tion or inspections than he did in
cases of other carriages, buggies and
wagons. and that he was not advised
| of any law that created any duty upon
him, or obligation to look after auto
mobiles any more than any other We
hicle operated upon the public roads
in the county.
1t is contended by the petition that
| the act is unconstitutional and void
| for the following reasons, to-wit:
| l. That the act seeks under the
| guise of a license to impose a tax for
revenue purposes;
| 2 That it creates a duplicate tax
| alton:
| g. That no license or privilege is
granted, and that none could be grant
ed, to use the public roads, such right
| being one open to all, subject to
proper regula tions;
4. That it seeks to impose on one
| mode of travel a tax not imposed on
other modes of travel on the highways,
| which is unequal and not uniform in
| it's applica tion;
| s. That the title of the act is de-
fective:
| 6. That there is no right in the
| county collector to issue license, be-
| cause the constitution 1ovides that
all license shall be issued by the coun-
ty judges;
| Z. That all taxes must be collected
| by levy and sale, and not by fine and
imprisonment;
| 8. That such act is not a valid ex-
ercise of the police power of the
state.
| We are not concerned with the por-
| tion of the act relative to automobiles
for hire, but only that portion OF the
act which provides that when an auto
mobile or other motor driven. vehicle
when used by the owner thereof with
out charge, such owner shall pay a
license tax provided by the act.
| This act makes no provision for any
supervision of the vehicles, the ex-
tamination OF any applicant as to his
qualification, regulation in any
manner whatever. 1t is a charge for a
mere privilege or permit to use the
ipublic roads and highways by the own
Iers of automobiles without any regu-
llation, and without regard to the abil-
ity, qualification or fitness of the op-
ierator or applicant for license.
| 1t is evident from an inspection of
this statute that the protection of the
public was manifestly not the purpose
and object of the law, but it was sole
lly for the purpose of raising revenue.
The mere fact that the amount
charged for this license augments the
treasury will not of itself make it a
tax, nor will the disposition of the
fee alone determine that fact, but the
whole act must be considered. 1t is
competent for the legislature to pass
laws regulating the speed, the quail
ficatiOns OF persons operating such
motor driven vehicles when operated
on the public highways, and for the
inspection, examination, supervision
and regulation thereof. or licensing
them, for it cannot be doubted that
the state has the right to regulate the
method by which the public shall use
; the public highways, but they cannot
under the preteXt device of a
license pass an act clearly for the
raising of revenue, and this act under
consideration makes no provision fol
any supervision or regulation of the
vehicles.
: Chapter 5437. Laws of Florida, 1905
: being IAN act TO regulate the running
of automobiles and motor vehicles or
the public roads and highways in the
state OF Florida. makes provision fol
l issuance by the secretary of state OF
( | a certificate and for the regulation Of
the vehicles, and provides for the re
cord, sale and exchange. and regu-
lates the speed Of automobiles, bu
= the act under consideration provides
v nothing whatever excepting for TIL.
D levying of a license tax or fee for til.
mere privilege of operating on tn,
public roads and highways in thi:
Estate.
l am of the opinion that this portion
of the act which seeks to charge tn,
+ towners of automobiles, using the SAM
;, not for hire, a license. is mere de
vice for the 1evying a tax for rev
r tenue purposes, and is unconstitu
Itional and void
-. II is therefore not necessary 10 pas
upon the other questions raised by tn
+ petition.
4 1t is considered and ordered tha
. the petitioner be and he is discharge
= at the cost of Marion county
y Done and ordered at Ocala, Florida
September 8, 1911. ". S. Bullock,
!, Judge Circuit CourI