Panama City v. State

• Decision Date: 13 March 1957
• Citation: 93 So.2d 608
• Parties: PANAMA CITY et al., Appellants, v. STATE of Florida et al., Appellees.
• Court: Florida Supreme Court

Page 608

93 So.2d 608

PANAMA CITY et al., Appellants, v. STATE of Florida et al., Appellees.

Supreme Court of Florida, Division B.

March 13, 1957.

Mercer P. Spear, Panama City, and John N. Mitchell, New York City, for appellants.

R. S. Pierce, Jr., Marianna, and James N. Daniel, Chipley, for appellees.

DREW, Justice.

This is an appeal from a final decree of the Circuit Court of Bay County declining to validate $7,000,000 of water front improvement revenue bonds of the City of Panama City, Florida and dismissing the petition of said City of Panama City filed under the authority of Chapter 75, Florida Statutes 1955, F.S.A., for that purpose.

The proceeds to be derived from the sale of the proposed bonds in the principal sum of $7,000,000 were to be used for the purpose of two large water front developments in Panama City, one of which was to be located at the foot of Harrison Avenue along Government Street at St. Andrew Bay for some thirteen hundred and thirty feet and the other to be located in the St. Andrew community extending from the foot of 10th Street along Bayview Avenue for some seven hundred and fifty feet. The land to be used for the construction of the project was to be created primarily over the bottom of St. Andrew Bay by filling in from the Shore seaward. At the time of the petition for validation a part of said lands were owned by the City and the remainder was to be acquired by purchase, gift or condemnation. The Panama City Marina to be constructed upon such filled-in lands was to consist of the following buildings, viz.: city hall, civic auditorium, two concessions buildings, administration building and a marine sales and service building. The St. Andrew Marina was to consist of a concessions building, a marine sales and service building and an administration building. At both of said sites there would be docks, docking facilities, waterways, necessary utilities, large automobile parking areas and other facilities required in connection with the opearation of a large marina.

The resolution authorizing the issuance of the bonds and the trust agreement attached to and made a part of said resolution, provides, among other things, that said bonds, both principal and interest, shall be retired solely and exclusively from funds derived from the net revenues of the revenue producing facilities of the project and from the proceeds of excise taxes theretofore authorized by sundry ordinances of said City on the sale of cigarettes, utility services and from license taxes and franchise taxes, such taxes being generally referred to in the resolution and trust agreement and hereafter in this opinion as cigarette taxes, utility services taxes, license taxes and franchise taxes. There is an express agreement in the resolution authorizing the issuance of said bonds that 'it will never be necessary or authorized to use the ad valorem taxing power or any other funds of said City to pay the principal of and interest on the Bonds to be issued pursuant to this Resolution, or to make any of the reserve, sinking fund or other payments provided for in this Resolution, and the Bonds to be issued pursuant to this Resolution shall not constitute a lien upon any of the properties of said Municipal Waterfront Improvements or upon any other property whatsoever of the City.'

The evidence before the Court showed that the concessions buildings at the Panama City Marina were divided into twenty-one separate shops along a main concourse in which, according to the plans, it was proposed to have such shops as men's sporting goods were, tackle shops, marine supplies, drug stores, novelty shops, offices for the Chamber of Commerce, travel agent's office, photo shops, beauty shops etc. The concessions building at St. Andrew's Marina contained twelve shops [some five additional shops were contemplated in a future proposed area] designed to serve generally the same purpose and accommodate the same type of shops as in the Panama City Marina. It was estimated that from a total anticipated revenue for the first year of operation from all sources of $581,000, approximately $129,000 would be derived from rentals for these shops. The were other rentals anticipated from space in the administration and other buildings as well as from the gasoline concession. Other revenues were to be derived from parking meter revenue, boat slip revenue and income of that nature. Slightly more than 20% of the total revenue for the first year, therefore, consisted of rentals to be derived from the various offices and store spaces in the concessions buildings. So much for the percentage of income from this source compared to the overall income.

It appears that of the total project area in both Marinas, the concessions buildings will occupy 1.22% of the total area. These figures appear in the brief of the City and are not questioned or disputed by appellees.

The brief of the City directs its argument primarily to the general proposition that the circuit court erred in declining to validate the bonds and in dismissing the petition. The City asserts it has the statutory authority to acquire and construct the subject improvements under Ch. 11678, Laws of Florida, Extraordinary Session, November 1925, as amended [the City Charter] and Section 167.21, Florida Statutes 1955, F.S.A. Pertinent portions of such laws relied upon by the City and to which we shall allude hereafter are as follows:

'Section 9. That the commission shall have the power to acquire by gift or purchase and to have possession of, hold and use any real estate or personal property of any and all kinds whatsoever, including docks and recreational facilities * * * or any other public uses or purposes whatsoever of the city or its inhabitants or visitors, and if found desirable or expedient may sell, lease, rent or otherwise dispose of all or any part of same for the benefit of the city. * * * It may acquire by purchase, gift or otherwise, and may lease, receive, hold and use real or personal property beyond the city limits, * * * for the establishment and maintenance of * * * auditoriums * * * which the commission may deem necessary and proper.' Sp.Acts 1953, c. 29398. (Emphasis supplied.)

'Sec. 10. That the said City is hereby delegated authority to exercise the right and power of eminent domain * * * for the following uses and purposes: * * * for city building * * * and other municipal purposes * * *.'

'Sec. 11. The said City shall have full power and jurisdiction over * * * waters within the City limits; * * * to control, manage and designate the use of all docks, wharves or piers within the City limits * * *.'

'Sec. 144. * * * The City Commission shall have the power, within or without its corporate limits to construct, condemn, purchase, acquire or lease, and to maintain, conduct, and operate within and without the corporate limits, wharves * * * ship channels, breakwaters * * *.'

Section 167.21, F.S.A. reads in part as follows:

'167.21 Wharves, vessels, bridges, ferries, fires, improvements. The city or town council may construct wharves, quays and docks; regulate wharfage, dockage, and the moorings and anchorage of vessels within the corporate limits, unless otherwise provided by law; construct bridges, establish ferries, and fix the rates of ferriage and tolls; erect all necessary public buildings and control and dispose of the same as the interests of the city or town may require; * * * and do and perform all such other act or acts as shall seem necessary and best adopted to the improvements and general interest of the city or town.' (Emphasis supplied.)

Appellees insist, however, (1) that the foregoing laws do not confer the necessary authority upon the City to make the proposed improvements and that such improvements may not be made in the absence of an enabling act of the Legislature specifically authorizing and contemplating such improvements. Moreover, appellees say (2) that the circuit court properly dismissed the petition because a substantial portion of such improvements will be places of business to be leased by the municipality to private corporations and individuals for the operation of various types of business from which substantial sums of money will be received thereby removing said improvements from that type where such private business purposes were wholly incidental to the main purpose. It is also urged by appellees (3) that the construction of said improvements and the leasing of the same to private individuals for the purpose of operating private businesses amounts to obtaining money for or a loan on the credit of the municipality to and for the benefit of such private lessees in violation of Section 10 of Article 9 of the Constitution of Florida. F.S.A. We shall address our views to the propositions of appellees in the order named.

With reference to the contention that the City is without authority to construct the contemplated improvements in the absence of an enabling act of the Legislature specifically authorizing such work, we think the answer to the substantial part of this question is found in State v. City of Clearwater, 1938, 135 Fla. 148, 184 So. 790, 794. As we analyze appellees' argument they make no challenge to the power of the City under the quoted sections of the city charter and the general law to construct the city hall, the auditorium, the wharves, docks and substantially all of the other portions of the project except the so-called concessions buildings and the filling in of the land along the water front. As to the power to construct the docks, wharves and generally to build the marina, as we construe the term in its narrowest sense, we think State v. City of Clearwater, supra, is clearly controlling. The charter provision relied on to build the yacht basin for the...