Citations
- 119 So. 2d 428
Full opinion text
WIGGINTON, Chief Judge.
This appeal is from a final judgment entered in a habeas corpus proceeding discharging appellee from the custody of appellant Chief of Police upon the court’s determination that the ordinance in violation of which appellee was arrested and restrained of his liberty was invalid.
The municipal charter granted the City of Fort Walton Beach in .1947, among other things, conferred upon the city the authority:
“To impose license taxes, excise taxes and privilege taxes on professions, businesses, trades, occupations, and privileges of all kinds and amusements of all kinds, including places of amusement and amusement devices of all kinds, to provide for the same and to enforce the collection thereof in the manner provided by law and by City ordinance. And the amounts of said license taxes, excise taxes and privilege taxes and the subjects upon which they are levied shall be fixed by City ordinance and shall not be dependent upon any general State law. The City shall have the right by ordinance to fix the amount of any license, excise or privilege tax either by basing the same upon gross receipts or by such other method as the City Council may dé-termine.” § 3, subd. c.
No attempt was made by the city to enact an ordinance levying an excise tax on the privilege of operating a motion picture theater pursuant to the authority granted to it by its 1947 charter act until it adopted Ordinance No. 82 on August 1, 1950. Prior to the adoption of this ordinance the Legislature of Florida enacted the Florida Revenue Act of 1949. The pertinent section of this act levies a tax upon the privilege of sale and purchase of admissions to any place of amusement and declares: “that no municipality of the state shall hereafter levy an excise tax on amusement admissions.”
The foregoing provision relating to the levy of an excise tax on the sale and purchase of admissions to places of amusement is qualified by a subsequent section of the Act consisting of a savings clause which provides:
“Nothing herein contained shall be construed as repealing any general or special act authorizing a municipality to levy a special tax upon admission tickets which said tax is now being levied by such municipality.”
On August 1, 1950, the city adopted Ordinance No. 82, pursuant to the authority granted to it by its 1947 charter and by which it levied an occupational license tax against all motion picture theaters in the amount of $25, plus a 2‡ tax on each adult ticket sold.
In 1953 the Legislature of Florida enacted a special act granting to the City of Fort Walton Beach a new municipal charter. In this charter the authority of the city to impose license, excise and privilege taxes as was contained in the 1947 charter act was carried forward without material change insofar as the question here presented is concerned.
The city by Ordinance No. 171 adopted on June 14, 1955, repealed all prior ordinances regulating the privilege of engaging in businesses, professions and occupations within the city, and levied an occupational license tax of $100, plus 2‡ for each admission ticket sold by all theaters operating within the city. The ordinance further provides that any person violating any of the terms or provisions thereof shall he deemed guilty of a misdemeanor and subject to a fine or imprisonment in the city jail. It was for the non-payment of the excise tax of 2