State ex rel. City of Miami Beach v. Metropolitan Dade County Water and Sewer Bd.

• Decision Date: 14 June 1977
• Docket Number: 76-1370 and 76-1276,Nos. 76-269,s. 76-269
• Citation: State ex rel. City of Miami Beach v. Metropolitan Dade County Water and Sewer Bd., 347 So.2d 699 (Fla. App. 1977)
• Parties: STATE of Florida ex rel. CITY OF MIAMI BEACH, etc., Appellant, v. METROPOLITAN DADE COUNTY WATER AND SEWER BOARD, etc., et al., Appellees. CITY OF MIAMI BEACH, etc., Appellant, v. DADE COUNTY, Florida, etc., Appellee. DADE COUNTY, Florida, a political subdivision of the State of Florida, Appellant, v. CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 699

347 So.2d 699

STATE of Florida ex rel. CITY OF MIAMI BEACH, etc., Appellant, v.METROPOLITAN DADE COUNTY WATER AND SEWER BOARD, etc., et al., Appellees.

CITY OF MIAMI BEACH, etc., Appellant, v.DADE COUNTY, Florida, etc., Appellee.

DADE COUNTY, Florida, a political subdivision of the State of Florida, Appellant, v.CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellee.

Nos. 76-269, 76-1370 and 76-1276.

District Court of Appeal of Florida, Third District.

June 14, 1977.

Rehearing Denied July 27, 1977.

Joseph A. Wanick, City Atty. and Lee H. Schillinger, Asst. City Atty., for City of Miami Beach.

Stuart L. Simon, County Atty., Richard M. Dunn and Stanley B. Price, Asst. County Attys., for Dade County.

Before PEARSON, BARKDULL and HAVERFIELD, JJ.

BARKDULL, Judge.

Following this court's opinion reported as City of Miami Beach v. City of North Bay Village, 313 So.2d 126(Fla. 3rd D.C.A.1975); opinion rendered May 20, 1975, with rehearing denied June 18, 1975, Metropolitan Dade County, through its Board of County Commissioners, caused to be adopted in July of 1975 an ordinance authorizing the Metropolitan Dade County Water and Sewer Board to assume jurisdiction and authority over water rates charged by municipalities to customers outside of its territorial jurisdiction.The ordinance was scheduled for second reading on September 3, 1975 at 9:00 A.M. and a public hearing thereof was duly noticed on August 27, 1975.At the public hearing on September 3, 1975, the proposed ordinance was read a second time by title, pursuant to the provisions of the Metropolitan Charter.¹During the course of discussion and debate on the ordinance, the County Commissioners became aware that the City of Miami Beach had scheduled a hearing for 2:30 P.M. that afternoon to fix reasonable rates, pursuant to the mandate of this court in City of Miami Beach v. City of North Bay Village, supra, and upon motion duly made the Metropolitan Dade County Commission proposed to adopt an emergency ordinance extending the jurisdiction of the Metropolitan Dade County Water and Sewer Board to supervise rates charged by municipalities in the sale of water outside their geographical city limits.

Pursuant to the provisions of the County Charter, the Board of County Commissioners has the power to enact emergency ordinances provided that, after the adoption of same, the ordinance ² is advertised within ten (10) days thereof.

The initial ordinance was amended to add the word "emergency" alongside the title and to make the ordinance effective immediately (this ordinance was published as ordinance # 75-68 and will be referred to herein as such), whereas the proposed ordinance would have been effective ten (10) days after passage.³

The City of Miami Beach proceeded with its hearing scheduled for that afternoon, and fixed a water rate to be charged for customers outside the City.Shortly thereafter a clerk of the County Commission altered the ordinance as adopted, by inserting a paragraph finding that an emergency existed and paragraphs relating to the publication of the ordinance as an emergency (this will be referred to herein as ordinance # 75-68X).Thereafter, the Metropolitan Dade County Water and Sewer Board issued a rule to show cause directed to the City of Miami Beach, preparatory to having a hearing to determine whether the water rate charged to customers outside the City limits was reasonable, pursuant to the alleged authority granted to the Board by Ordinance # 75-68.The City then instituted what it styled a "Petition for Writ of Certiorari to the Metropolitan Dade County Water and Sewer Board and Petition for Rule Nisi and for Writ of Prohibition to the Metropolitan Dade County Water and Sewer Board and for Injunctive Relief" and, on January 15, 1976, secured the issuance of a rule nisi in prohibition directed to the Metropolitan Dade County Water and Sewer Board.Upon the return day provided in the rule nisi, the trial judge conducted a hearing in which, among other things, he vacated the rule nisi and proceeded to entertain the matter as a petition for certiorari to review the authority of the Board to issue the rule to show cause.This order was entered on January 30, 1976.

Thereafter, the City of Miami Beach filed an independent law suit, contesting the power of the County Commissioners to enact Ordinance # 75-68 and, further, that if the County had the power they invalidly enacted the ordinance as an emergency ordinance and there was, in fact, no emergency.The trial court proceeded to a final determination and found the following as to the authority of the County to enact the ordinance:

"2.The plaintiff has also raised the issue of whether Dade County is empowered and authorized by the Metropolitan Dade County Charter to regulate rates charged by municipally owned utilities to other municipalities.The Court finds that the County has the power and authority under the Charter to enact such an ordinance."

But, the court found that the ordinance or ordinances adopted as # 75-68 and # 75-68X were invalidly adopted as emergency ordinances.The City appealed from the order vacating the rule nisi in prohibition (this is Case no 76-269 in this court).The City also appealed from that portion of the final judgment, in its independent action, that found that Metropolitan Dade County had the power and authority, under its Charter, to enact an ordinance regulating water rates charged by the municipality outside of its territorial limits (this appeal is filed in this court under Clerk's file No. 76-1370).Dade County also appealed from the final judgment in this independent action, contending the trial judge was in error when he struck down ordinance # 75-68.These matters were consolidated for purposes of oral argument.

The first question to be determined is whether or not Metropolitan Dade County has the power to regulate the rate charged by municipalities for water to their customers outside of their geographical area.The County contends they have this power pursuant to the constitutional provision authorizing the establishment of Metropolitan Dade County, to wit: Article VIII, Section 11(1)(b), Constitution of the State of Florida(1885); and that the Metropolitan Charter itself contains the following provisions relative to the regulation of water rates:

"Charter of Metropolitan Dade County, Section 1.01.a:

"9.Provide and regulate or permit municipalities to provide and regulate waste and sewage collection and disposal and water supply and conservation programs.

"14.Regulate, control, take over, and grant franchises to, or itself operate gas, light, power, telephone and other utilities, sanitary and sewage collection and disposal systems, water supply, treatment, and service systems * * *.

"18.Set reasonable minimum standards for all governmental units in the county for the performance of any service or function.The standards shall not be discriminatory as between similar areas.If a governmental unit fails to comply with such standards, and does not correct such failure after reasonable notice by the Board, then the Board may take over and perform, regulate, or grant franchises to operate any such service.The Board may also take over and operate, or grant franchises to operate any municipal service if:

The City responds that the power to regulate does not carry with it the power to fix the rate charged for water, citing the following authorities: State v. Burr, 79 Fla. 290, 84 So. 61(1920);City of Winchester v. Winchester Water Works Co., 251 U.S. 192, 40 S.Ct. 123, 64 L.Ed. 221(1920);State ex rel. Garner v. Missouri & Kansas Telephone Co., 189 Mo. 83, 88 S.W. 41.

This court has previously held, in City of Miami Beach v. City of North Bay Village, supra, that a municipality has the power to put a surcharge on water rates.Compare: Mohme v. City of Cocoa, 328 So.2d 422(Fla.1976).This court has also previously held that Dade County had the power to enforce a water moratorium directed to municipalities.See: City of North Miami Beach v. Metropolitan Dade County, 317 So.2d 110(Fla.1975).Considering the aims of metropolitan government, we hold that the power to regulate (as set forth in the Charter) does carry with it the power to regulate the water charges charged by a municipality to customers outside of its territorial jurisdiction and, therefore, we affirm the trial judge on this holding.See: State v. Guertin, 89 N.H. 126, 193 A. 237(1937), wherein the following is found:

"* * * the question remains as to whether or not the powers granted include the power to regulate rates.We believe that such power is included within the meaning of the words used.

"The word 'regulate' is a broad one.It means 'Adjust or control by rule, method or established mode; to direct by rule, or restriction; to subject to governing principles or laws.'Webster, New International Dictionary.The word itself contains no suggestion of any limitation as to the features which may be regulated, and no inference of any such limitation can be drawn from the context in which it is used in the statute."

Turning next to the question of the validity of Ordinances # 75-68 and # 75-68X, which were found to be invalid by the trial judge, we first affirm the trial judge in holding that the ordinance (# 76-68X), that was altered subsequent to the public hearing by a clerk of the County Commission, is an invalid...