State Ex Rel. Landis v. Rosenthal

• Decision Date: 08 April 1933
• Parties: STATE et rel. LANDIS, Attorney General v. ROSENTHAL.
• Court: Florida Supreme Court

148 So. 769

109 Fla. 363

STATE et rel. LANDIS, Attorney General v. ROSENTHAL.

Florida Supreme Court

April 8, 1933

Rehearing Denied June 21, 1933.

Original proceeding in quo warranto by the State of Florida, on the relation of Cary D. Landis, as Attorney General, against George J. Rosenthal.

Motion to quash the writ of quo warranto denied, and judgment of ouster entered.

BUFORD J., dissenting.

COUNSEL Cary D. Landis, Atty. Gen., J. Lancelot Lester and William V. Albury, both of Key West, and H. H. Taylor, of Miami, for relator.

Irving J. A. Renno, of Miami, and Waller & Pepper, of Tallahassee for respondent.

OPINION

WHITFIELD Justice.

The Attorney General of the state brought quo warranto proceedings to test the validity of the franchise claimed herein by the respondent.

A 'franchise' is a special privilege conferred upon one or more individuals or a corporation by governmental authority to do something that cannot be done of common right. Leonard et al. v. Baylen Street Wharf Co., 59 Fla. 547, 52 So. 718, 31 L. R. A. (N. S.) 636; 26 C.J. 1008.

The right to establish and maintain a tollbridge is a franchise. A grant from the sovereign power is essentail to the creation of a franchise. Subject to organic limitaion, she Legislature may grant franchises. 26 C.J. 1013, 1025. If the legislative power to grant franchises may be delegated when the franchise directly affects the rights and prerogatives of the state, such delegation of authority should be accompanied by appropriate limitations within which the delegated authority may be exercised, in order to enforce controlling law and to conserve public policy and the general welfare.

The navigable waters within the state and the lands thereunder are held by the state in trust for all the people of the state, subject to the powers of Congress as to navigation. State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 So 353, 22 L. R. A. (N. S.) 337.

Chapter 11640, Acts of 1925 (Ex. Sess.) under a title 'to Confer Power and Authority on the Board of County Commissioners of Monroe County, Florida, to Grant Licenses, Privileges or Franchises to Any Persons or Corporation, Under Such Conditions and for Such a Term as the Board of County Commissioners May Determine, to Construct, Operate and Maintain Toll Bridges in Monroe County, Florida, and to Connect Said Toll Bridges With the Public Roads Within Said County,' etc., contains the following:

'Be It Enacted by the Legislature of the State of Florida:

'Section 1. The powers and authority are hereby conferred upon the Board of County Commissioners of Monroe County, Florida, to grant licenses, privileges or franchises to any person, firm or corporation, to construct or operate toll bridges across the waters and streams of Monroe County, Florida, provided, however, before any such bridges are constructed, the permission of the War Department of the United States must first be obtained for the construction and maintenance of said bridges.

'Sec. 2. The Board of County Commissioners shall determine the period of time for which the licenses, privileges and franchises shall exist, provided no such licenses, privileges or franchises shall extend beyond the period of forty years from the date said toll bridges are placed in operation.

'Sec. 3. The Board of County Commissioners shall have power to determine the conditions under which said franchises, licenses or privileges are granted, and shall have power to require security, from the persons receiving said franchises and shall determine the rules and regulations under which said toll bridges shall be operated in the State of Florida.'

The franchise granted to the respondent states that: "The County does hereby agree, subject to the approval and granting of permission by the United States War Department for the construction and maintenance of said Toll Bridges, Causeways and/or Fills to grant to the said George J. Rosenthal, his heirs, legal representatives and assigns, and, if approved by the said United States War Department, does hereby grant to the said George J. Rosenthal, his heirs, legal representatives and assigns, the sole and exclusive Franchise, License and Privilege to construct, operate and maintain Toll Bridges, Causeways and/or Fills over and across the Waters of Monroe County and State of Florida, from No Name Key, Florida, to Lower Matecumbie, Florida, connecting up the two ends of the State Road 4-A and known as Oversea Highway as provided in the said plans and routes as approved by the War Department of the United States of America.

"Said exclusive Grant Franchise, License and Privilege shall be construed to mean that no other and/or further Grant, Franchise, License and/or Privilege will be granted to any person, firm or corporation, during the life of this Grant, Franchise License and Privilege, to build, construct and operate any passenger Ferry, Bridges, Causeways and/or Fills for the use of the general public, within a radius of ten miles on either side of the termini of the Bridges, Causeways and/or Fills allowed to be constructed and operated within the purview of this Franchise. Nor will Monroe County, itself, build, construct, maintain and/or operate any Bridge, Causeway, fills and/or Ferries during the life of this Franchise on or over the Waters of the State of Florida and connecting the Oversea Highway with the mainland or any part thereof from No Name Key, Florida, to Lower Matecumbie, Florida, or within the radius of ten miles from the Bridges, Causeways and/or Fills or terminii thereof as provided for in this Franchise. Provided, however, that Ferries may be operated until such time as the Bridges, Causeways and/or Fills provided for in this instrument shall have been opened to the public.'

'And the said county of Monroe hereby permits and allows the said George J. Rosenthal, his heirs, legal representatives and assigns, to construct, build, operate and maintain all public utilities that the said George J. Rosenthal may desire over, under and upon the said Bridges, Causeways and/or Fills, provided the said public utilities, or any of them, shall not interfere with or obstruct the normal flow of traffic over said bridges. And the said George J. Rosenthal, his heirs, executors, administrators or assigns, is hereby granted the rights to construct, operate and maintain gradings and equipment, dredges and dredging equipment over or under said bridges; to construct necessary piling and docks adjacent to said Bridges, Causeways and/or Fills and to construct all things and do all things that by necessary implication would be absolutely essential, incidental and appertaining to the efficient construction, operation and maintenance of said Bridges, Causeways and/or Fills.

'And the said Franchise is hereby issued on the following terms and condition, to-wit: The said George J. Rosenthal shall furnish to the County a penal bond, on or before six months from date of this Franchise, in the sum of Five Hundred Thousand Dollars ($500,000) conditioned that the said George J. Rosenthal shall begin actual physical construction of said Bridges, Causeways and/or Fills within ninety days from the date of the furnishing of said Bond and shall complete said Bridges within thirty-six months from the date of the commencing of building operations, unless the same is rendered impossible of strict performance by an Act of God changing elements, earthquake, or the public enemy. Said Bridges, Causeways and/or Fills to be constructed according to the plans and specifications hereafter to be submitted by the said George J. Rosenthal and which are to be approved by the United States War Department.

'Provided further, that the said George J. Rosenthal shall agree to and will operate said Bridges, Causeways and/or Fills as toll bridges for the use and benefit of the people of Monroe County, and other members of the traveling public and to maintain said Bridges, Causeways and/or Fills in an efficient manner accommodating all the usual and common traffic of persons, their vehicles and property that may apply for passage over said Bridges, Causeways and/or Fills. 'This said Franchise shall be for a term of forty (40) years, commencing from the time the Bridges, Causeways and/or Fills are completed and opened for use of the general public.'

'The tolls to be charged and collected by the said George J. Rosenthal, his legal representatives, heirs and/or assigns for passage over said Bridges, Causeways and/or Fills shall not exceed the rates embodies in the schedule appended hereto and made a part hereof as though ordinarily incorporated herein.

'Provided, further, that at the end of forty (40) years from the date of the opening of the Bridges, Causeways and/or Fills for the use of the public, the said Bridges, Causeways and/or Fills shall belong to Monroe County, Florida, free from all charges and shall be in good condition and repair, reasonable depreciation due to time and the elements excepted.

'Provided, however, that in the event the Government of the United States of America or the State of Florida shall pruchase said Bridges, Causeways and/or Fills during the life of this Franchise, then, and in that event, Monroe County, Florida, will have and claim no right, title or interest, reversionary or otherwise, in the said Bridges, Causeways and/or Fills from and after the date of sale and transfer by the owner of the Bridges, Causeways and/or Fills, either to the Government of the United States of America of to the State of Florida.

'Further it is hereby mutually agreed by and between the said County of Monroe, Florida, and George J. Rosenthal that all improvements, buildings, appurtenances, means of transportation and/or communication and which are not...