City of Miami v. Florida Power & Light Co.

• Decision Date: 16 November 1965
• Docket Number: No. 65-142,65-142
• Citation: 180 So.2d 344
• Court: Florida District Court of Appeals
• Parties: CITY OF MIAMI, a municipal corporation, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Appellee.

Page 344

180 So.2d 344

CITY OF MIAMI, a municipal corporation, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Appellee.

No. 65-142.

District Court of Appeal of Florida, Third District.

Nov. 16, 1965.

Rehearing Denied Dec. 14, 1965.

John R. Barrett, City Atty., and S. R. Sterbenz, Asst. City Atty., for appellant.

Scott, McCarthy, Preston & Steel and Phillip Goldman, Miami, for appellee.

Before HENDRY, C. J., and TILLMAN PEARSON and SWANN, JJ.

SWANN, Judge.

The plaintiff, City of Miami, appeals from a final judgment for the defendant, Florida Power & Light Company.

The City's complaint asserts that the defendant is indebted to it for amounts of money allegedly owed for the years 1960 through 1963, inclusive, pursuant to the electric franchise granted by the City to the Company. The City contended that the defendant, in computing the amount of the annual payment under the franchise, improperly deducted the amounts it had paid to the City for contracting licenses and street excavation permits in each of the contested years. The defendant contended that the deductions were proper under the franchise and neither party disputed the amount of money involved.

The portion of the franchise in question provides as follows:

§§ 'Section 6. That on each July 1 during this grant, the Grantee, its successors and assigns, shall pay to the Grantor and its successors an amount which added to the amount of all taxes, licenses, and other impositions (except amounts for assessments for special benefits, such as sidewalks, street paving and similar improvements) levied or imposed by the Grantor upon the Grantee's electric property, business, or operations, and those of Grantee's electric subsidiaries for the preceding calendar year, will equal 6% of Grantee's revenues from the sale of electrical energy to residential and commercial customers within the corporate limits of the Grantor for the twelve (12) fiscal months preceding the applicable anniversary date; however, the July 1, 1954, payment shall be based upon residential and commercial revenues for the twelve (12) fiscal months preceding the effective date of this grant . Nothing herein shall be construed to be a limitation on the assessment and collection of valid taxes, licenses and other impositions by the Grantor on and from the Grantee in excess of such 6% amount.'

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The trial court stated that the sole question before it 'is whether the amounts Florida Power & Light Company paid the City of Miami for contracting licenses and street excavation permits for each of the years in question, come within the language 'taxes, licenses and other impositions' as used in Section 6 of the franchise'. It is from the final judgment holding that such payments were properly deducted by the power company that the City appeals.

The City has presented as error eight different points. We have considered them all and believe that the first seven, assuming that they reflect error, constitute at the most harmless or invited error. Section 54.23, Florida Statutes, F.S.A., provides:

'Harmless error; effect.--No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case if shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.'

The important question to be resolved was whether the trial court correctly ruled that excavation permits and contracting licenses obtained by the Company from the City are 'taxes, licenses and other impositions levied or imposed by the Grantor (City) upon the Grantee's (Defendant) electric property, business or operation.'

The opinion and final judgment of the trial court which we adopt, recited in part as follows:

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'The words 'other impositions' refer back to 'taxes and licenses' the words immediately preceding. Taxes and licenses, then, are 'impositions'. Section 6 also specifically excepts 'assessments for special benefits', and such assessments are also 'impositions'.

'The Court notes that 'imposition' has been broadly defined by Courts in other jurisdictions. See, Singer Manufacturing Co. v. Heppenheimer (1896) 58 N.J.Law 633, 34 A. 1061 ('The word 'imposition' includes every kind of enforced contribution to the public treasury'); [President, etc. of] Harvard College v. [Board of] Aldermen of [City of] Boston (1870) 104 Mass. 470, 482.

'In Florida and elsewhere, the Courts have frequently treated 'permit' and 'license' interchangeably. See, State ex rel. Biscayne Kennel Club, Inc., v. Stein (1930) 130 Fla. 517, 178 So. 133; Bateman v. City of Winter Park (1948) 160 Fla . 906, 37 So.2d 362. See also the following opinions dealing with street excavation and building permits. Ledbetter v. City of Great Falls (1949) 123 Mont. 270, 213 P.2d 246 ; Lanham v . Forney (1938) 196 Wash. 62, 81 P.2d 777; Mulder v. City of Los Angeles (1930) 110 Cal.App. 663, 294 P. 485.

"Other impositions' as used in Section 6 refers to enforced payments to the City of Miami, similar in nature to taxes, licenses and assessments for special benefits. The language of Section 6 contemplates that all such payments will be allowed as a partial credit in computing the amount of the annual franchise payment with the specific exception of assessments for special benefits which will not be allowed as a partial credit.

'Payments for contracting licenses and street excavation permits do not fall within the specific exception dealing with assessments for special benefits and clearly do come within the meaning of 'taxes, licenses and other impositions' as used in Section 6 of the...