City of Tampa v. Salomonson

• Decision Date: 16 April 1895
• Citation: 35 Fla. 446,17 So. 581
• Parties: CITY OF TAMPA v. SALOMONSON.
• Court: Florida Supreme Court

17 So. 581

35 Fla. 446

CITY OF TAMPA v. SALOMONSON.

Florida Supreme Court

April 16, 1895

Appeal from circuit court, Hillsborough county; Barron Phillips Judge.

Action for an injunction by Frederick A. Salomonson against the City of Tampa. From a decree for plaintiff, defendant appeals. Modified.

Syllabus by the Court

SYLLABUS

1. Where a bill in equity to restrain a proposed issue and sale of municipal bonds shows no other valid reason why such issue and sale should be estopped, except that the proceeds of the sale of such bonds will go into, and be expended by, improper hands, it is error to enjoin the issue and sale of such bonds, or to go further with an injunction, in such a case than to restrain the delivery of such bonds, when issued, to unauthorized hands, and to prohibit the proceeds thereof from going into the hands of, and being expended by, unauthorized persons.

2. Where the state legislature, from whom our municipalities derive all of their corporate powers, enacts a law imposing specific duties and powers connected with the government of a municipality upon a board of public works, as officers of such municipality, an ordinance of such city is inoperative and void that undertakes to impose the same powers and duties upon any other person, agent, or official than such board of officials created by the state law.

3. Chapter 3951, Laws, approved May 31, 1889, entitled 'An act to provide for the creation of a board of public works for the city of Tampa, Florida, and prescribing its powers and duties,' is not in conflict with, and has not been repealed by chapter 3950, Laws, approved June 5, 1889, nor by chapter 4084, approved June 8, 1891, nor by chapter 4085 approved June 8, 1891, nor by chapter 4086, approved June 10 1891.

4. It is well settled that a municipal ordinance, like a legislative statute, may be good in part, and upheld, while part thereof may be adjudged to be illegal and void, provided the void parts thereof are not so connected with, or essential to the completeness of, the valid parts as that the latter cannot stand alone, or be carried out independently of and without the void provisions, or unless the different parts of the ordinance are so interdependent or blended together that it cannot fairly be said that the legislature would not have adopted the one without the other.

5. A municipal corporation has the power to appoint agents for the performance of such duties for it as are of a purely ministerial or administrative character. The receipt and sale, for current funds, of municipal bonds, after they shall have been issued by the proper officers, and delivery of the proceeds of such sale to the proper custodian for the city, are such ministerial duties, the performance of which the municipality can legally delegate to an agent or agents; but the city cannot appoint four of such agents for itself, and authorize them to choose and designate for it a fifth man. Such an attempt would fall within the inhibition of the maxim, 'Delegata potestas non potest delegari.'

COUNSEL J. B. Wall, Sparkman & Sparkman, and M. B. Macfarlane, for appellant.

Gunby & Gibbons and Shackleford & Simonton, for appellee.

OPINION TAYLOR, J.

Frederick A. Salomonson, the appellee, upon a bill in equity in the circuit court of Hillsborough county, obtained a temporary injunction against the city of Tampa (a municipal corporation), the appellant, restraining it from issuing, pledging, or selling $350,000 of its city bonds, and from this order the city appeal.

The bill, omitting its formal parts, is as follows: 'That complainant is a resident and citizen of the said city of Tampa, and is the owner of valuable property, both real and personal, situate, lying, and being within the corporate limits of the said city of Tampa, and that said property is subject to taxation by the said city and the authorized officers thereof. That the city council of the said city has recently, to wit, on the 8th day of June, A. D. 1894 attempted, by an ordinance, to authorize and provide for the issuing by the said city of Tampa of municipal bonds of the said city to the amount of three hundred and fifty thousand dollars ($350,000), to bear interest at the rate of six per cent. per annum, and to create a board of trustees, consisting of the following named persons, to wit, T. C. Taliaferro, S. M. Sparkman, J. A. M. Grable, Edward Manrara, and the fifth trustee to be supplied by those already named, to receive and sell the said bonds, and to receive the money arising from such sale, and giving said trustees power and authority to expend the money arising from the sale of said bonds; and said ordinance having various other provisions therein, as will more fully appear by reference to said ordinance numbered 116, a true copy of which is hereto attached, marked 'Exhibit A,' and made a part of this bill of complaint, to which your orator prays reference as often as may be necessary. That said bonds so provided for as aforesaid are to run for a period of twenty years; and the interest thereon is to be paid semiannally, and after the expiration of ten years the city council of the said city of Tampa is to have the option or privilege of redeeming said indebtedness, or any portion thereof, commencing with the lowest numbered bonds, both the principal and interest of said bonds to be payable in gold coin of the United States of current date and time. That if the said bonds are issued, as threatened, they will become a debt against the said city of Tampa, for the payment of which, both the principal and interest, your orator's property situate within the corporate limits of the said city of Tampa will be yearly subject to taxation, and said property will be assessed and taxed as aforesaid. That by reason thereof your orator's property will depreciate in value. That the taxes so levied will become an apparent incumbrance, lien, and cloud upon the title. That he will be subjected to a multiplicity of actions for the protection of his property, and that he will be greatly injured and embarrassed in the use and enjoyment of his property, and will be put to much expense in protecting his constitutional and legal rights. Your orator further showeth that the officers of the said city of Tampa, and the trustees in said ordinance named, or a majority of them, propose and intend to issue and sell the said bonds at as early a date as possible, and will do so unless they are restrained and enjoined from so doing by the order of this court. Your orator further represents that by virtue of the power granted to the city of Tampa by an act of the legislature of the state of Florida of the session of 1887, the same being chapter 3779, the said city of Tampa pretends to have authority to issue said bonds, and to pass the ordinance hereinbefore referred to, a true copy of which is hereto attached, and marked 'Exhibit A,' and by virtue of said authority the said city of Tampa called the election particularly described and mentioned in said Exhibit A; and the said defendant city claims that at the election so called and held on the 14th day of July, A. D. 1894, a majority of the votes cast by the qualified electors of the said city approved the issuance of said bonds. Your orator further represents: That the said election so held on the 14th day of July, A. D. 1894, was totally illegal and void, and that the ordinance numbered 116, authorizing and calling the said election, a true copy of which is hereto attached, marked 'Exhibit A,' as aforesaid, was absolutely void, for the reason that if the said bonds are issued and sold under and by virtue of said ordinance and said election the funds arising from the sale thereof will be unlawfully diverted from their proper and legal channel, and the same will be taken charge of, spent, and used by a body of men, so-called trustees, who have not, and can have no, legal authority or right to take possession of said bonds, or to receive or control the same, or to sell and dispose of the same, or to expend the proceeds arising from the sale of said bonds, or any part thereof, although said ordinance undertakes and attempts to confer such authority and power upon the said trustees, so called, it being expressly provided by the laws of this state, in chapter 3951 thereof, passed by the legislature at the session of 1889, which is hereby referred to and made a part of this bill, that, in addition to the offices authorized by the charter of the city of Tampa, there shall be a board of public works, which said board of public works was constituted and established by said chapter, which further provided that the same should consist of three members, who shall be freeholders in the city of Tampa, and electors thereof; that the said board of public works shall have exclusive power and control over the construction of sewers, the building and repairing of bridges, and the grading and paving of streets, and of certain other matters therein particularly described and enumerated; that all money levied or raised for such purposes, from taxes, bonds, or other sources, shall be collected, and carried to the credit of said board of public works, and shall not be diverted from said board, or be used by the mayor and city council for any other purpose, but the same shall remain as a separate fund in the hands of the treasurer of the said city of Tampa, and the bond of the treasurer shall be sufficient to recover any amount of the public money which may come into his hands. That said act is still in full force and effect, never having been repealed, either expressly or by implication, and the board of trustees provided for in said ordinance is unabuthorized and illegal, and neither the said trustees, nor any of them, nor their successors...