Malone v. City of Quincy
| Decision Date | 26 June 1913 |
| Citation | 62 So. 922,66 Fla. 52 |
| Parties | MALONE v. CITY OF QUINCY. |
| Court | Florida Supreme Court |
Certiorari to Circuit Court, Gadsden County; J. Emmett Wolfe, Judge.
John W Malone was convicted of violating a city ordinance, and from a judgment of the circuit court affirming the judgment of the municipal court, he brings certiorari. Judgment quashed.
Syllabus by the Court
Certiorari is a common-law writ, which issues in the sound judicial discretion of the court to an inferior court, not to take the place of a writ of error or an appeal, but to cause the entire record of the inferior court to be brought up by certified copy for inspection, in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law in cases where no direct appellate proceedings are provided by law.
Municipalities are legal entities for local governmental purposes, and they can exercise only such authority as is conferred by express or implied provisions of law. The existence of authority to act cannot be assumed, but it should be made to appear.
Where particular powers are expressly conferred upon a municipality, and there is also a general grant of power such general grant by intendment includes all powers that are fairly within the terms of the grant, and are essential to the purposes of the municipality, and not in conflict with the particular powers expressly conferred. The law does not expressly grant powers and impliedly grant others in conflict therewith.
If reasonable doubt exists as to a particular power of a municipality, it should be resolved against the city.
When there are both special and general grants of power to municipal corporations to pass ordinances, those given under the special grant, as a general rule, can only be exercised in the cases and to the extent as respects those matters allowed by the charter or incorporating act; and the powers given under the general grant do not enlarge or annul those conferred by the special grant in respect to its subject-matters, but give authority to pass ordinances reasonable in their character, upon all other matters within the scope of the municipal authority not repugnant to the Constitution and laws of the state.
A general clause, conferring power upon a municipality, can give no authority to abrogate the limitations contained in special provisions.
When to accomplish a general municipal purpose authority and powers are expressly conferred upon a city, and it does not appear that only the powers expressly given are to be exercised, other authority and powers that are incident to or consistent with those expressly given may be implied, when necessary to fully effectuate the express powers and the general purposes designed, if such implication may fairly arise from the language used and the object desired.
When authority and powers with reference to particular subjects are expressly conferred in specific terms upon municipalities, other authority and powers that in their nature or extent would materially increase or be inconsistent with the powers that are expressly given in specific and limited terms are not to be implied, particularly when the powers expressly given do not include all the authority that may have been conferred with reference to the designated subjects.
Where express specific power is conferred upon a municipality to regulate a common utility, a continuance of its use is contemplated; and the power given to regulate the use does not authorize a prohibition of a lawful use in any part of the city. If the use degenerates into a nuisance, it is within the power of the city to abate the nuisance or prohibit the use.
Power of a municipality to prohibit the use of earth closets within its limits cannot be implied merely from authority expressly given to regulate their use; and power to prohibit the use of earth closets in a city is not conferred by general powers given to conserve the public health and general welfare, when the authority to regulate the use of earth closets is expressly conferred in definite terms, limited in their scope and purpose.
If earth closets in a city for any reason become a nuisance or otherwise unlawful, the municipality may be reasonable regulations abate them, or otherwise deal with them as the charter powers may authorize.
When the use of earth closets is contemplated by a municipal charter, and express limited authority is given to regulate the use of them, their proper use as such is not unlawful, and cannot be prohibited by the municipality, in the absence of express authority to do so, or unless such closets become a nuisance, or their use is otherwise unlawful and within the power of the city to abate or prohibit.
The express authority given the city 'to regulate the construction, location and arrangement of earth closets' in the connection used in the charter act of Quincy (chapter 5844, Acts of 1907) has reference to the location of such closets as they are used on property in the city, and does not authorize a prohibition of the proper use of earth closets in any part of the city. Nor does the express authority to issue bonds for construction and maintaining waterworks and a 'system of sewerage' give the city power to prohibit the use of earth closets.
An ordinance forbidding the use of earth closets in designated portions of the city of Quincy, without reference to whether such closets are a nuisance, is not authorized by the charter act (chapter 5844, Acts of 1907); and a judgment of the municipal court, imposing a penalty for a violation of such ordinance, is invalid, and may be quashed on certiorari.
COUNSEL Y. L. Watson, of Quincy, F. T. Myers, of Tallahassee, and T. L. Clarke, of Monticello, for petitioner.
J. Baxter Campbell, of Quincy, for respondent.
A petition was presented to this court in which it is in effect alleged that a judgment of the municipal court of the city of Quincy, Fla., imposing a penalty upon the petitioner, was affirmed on appellate proceedings in the circuit court, and that the judgment is unlawful and void because the ordinance on which it is predicated is not authorized by the powers granted to the municipality. In response to the prayer of the petition a writ of certiorari was issued from this court, directing that a certified copy of the record of the proceedings complained of be brought here for review.
As the circuit courts have final appellate jurisdiction of the judgments of municipal courts, no appellate proceedings lie in such cases from the circuit courts. But this court has express power to issue writs of certiorari.
Certiorari is a common-law writ, which issues in the sound judicial discretion of the court to an inferior court, not to take the place of a writ of error or an appeal, but to cause the entire record of the inferior court to be brought up by certified copy for inspection, in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law, in cases where no direct appellate proceedings are provided by law. Seaboard Air Line Ry. v. Ray, 52 Fla. 634, 42 So. 714; Jacksonville, T. & K. W. Ry. Co. v. Boy, 34 Fla. 389, 16 So. 290; Hunt v. City of Jacksonville, 34 Fla. 504, 16 So. 398, 43 Am. St. Rep. 214.
The ordinance of the municipality that is here assailed is as follows: 'That from and after the passage, publication and approval of this ordinance, it shall be unlawful for any person to use, keep, erect or maintain within the corporate limits of the city of Quincy, Florida, any open or surface closet or privy: Provided, that this ordinance shall not apply to persons whose property, lot, house or residence is situate more than two hundred feet from the main sewer line or the water main.'
Municipalities are legal entities for local governmental purposes, and they can exercise only such authority as is conferred by express or implied provisions of law. The existence of authority to act cannot be assumed, but it should be made to appear. Where particular powers are expressly conferred upon a municipality, and there is also a general grant of power such general grant by intendment includes all powers that are fairly within the terms of the grant, and are essential to the purposes of the municipality, and not in conflict with the particular powers expressly conferred. The law does not expressly grant powers and impliedly grant others in conflict therewith. If reasonable doubt exists as to...
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... ... If ... reasonable doubt exists as to a particular power of a ... municipality, it should be resolved against the city ... Malone v. City of Quincy, 66 Fla. 52, 62 So. 922, ... Ann. Cas. 1916D, 208. See Florida Cent. & P. R. Co. v ... Ocala St. & S. R. Co., 39 Fla. 306, 22 ... ...
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... ... doubts as to the existence of a power in a municipality is ... resolved against the city. This rule was applicable to ... statutes conferring authority upon the Railroad Commissioners ... resolved against the city. Malone v. City of Quincy, ... 66 Fla. 52, 62 So. 922, Ann. Cas. 1916D, 208; State ex ... rel. Ellis v ... ...
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