State v. City of Tampa

Decision Date11 March 1939
Citation137 Fla. 29,187 So. 604
CourtFlorida Supreme Court
PartiesSTATE et al. v. CITY OF TAMPA.

Rehearing Denied April 11, 1939.

Suit by the City of Tampa against the State of Florida and others for validation of sewer revenue certificates. Decree for plaintiff, and defendants appeal.

Affirmed. Appeal from Circuit Court, Hillsborough County Harry N. Sandler, judge.

COUNSEL

J. Rex Farrior, State Atty., W. F. Himes, and McKay, Macfarlane Jackson & Ramsey, all of Tampa, for appellants.

Whitaker Brothers, Alonzo B. McMullen, and Ralph A Marsicano, all of Tampa, for appellee.

OPINION

PER CURIAM.

In the above styled cause Mr. Chief Justice TERRELL, Mr. Justice WHITFIELD, and Mr. Justice THOMAS are of the opinion that the decree of the Circuit Court should be reversed, while Mr Justice BROWN, Mr. Justice BUFORD and Mr. Justice CHAPMAN are of the opinion that the said decree should be affirmed. When the members of the Supreme Court, sitting six members in a body and after full consultation, it appears that the members of the Court are permanently and equally divided in opinion as to whether the judgment should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the judgment should be affirmed, therefore it is considered, ordered and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the judgment of the Circuit Court in this cause be and the same is hereby affirmed.

Affirmed.

TERRELL, C.J., and WHITFIELD, BROWN, BUFORD, CHAPMAN, and THOMAS, JJ., concur.

CONCURRING

CHAPMAN Justice.

On August 24, 1938, the City of Tampa adopted Ordinance No. 686-A under the authority of Chapter 17118, Acts of 1935, Laws of Florida. The Ordinance provided for the construction by the City of Tampa of works for the collection, treatment, purification and disposal of sewerage; and providing for the issuance of sewerage revenue certificates by the City of Tampa in the sum of $2,934,000, payable solely from the sewer revenues for services furnished by the said sewer system. The area or territory to be served by the proposed Sewerage Works embraced the present territory within the limits of the City of Tampa, with additional contiguous areas within five miles from the corporate limits thereof outside of the city limits but not within any incorporated town or city.

The Ordinance provided:

'Section 1. * * *
'(a) The immediate construction by the City of Tampa, Florida, (hereinafter sometimes called the City), of the following works for the collection, treatment, purification and disposal of sewerage (hereinafter sometimes called the Sewerage Works), is necessary for the protection of the health, safety and welfare of the inhabitants of the City and of the areas contiguous thereto hereinafter described;
'(1) Sewerage treatment plants.
'(2) Intercepting and trunk sewers and force mains approximately nineteen (19) miles in length.

'(3) Six (6) pumping stations.

'(4) Approximately seventy-seven (77) miles of lateral or collecting sewers.

* * *

'The sewerage intercepting and transmission facilities comprise four divisions or systems, as follows:

'(A) The Hillsborough River System serving the central portion of the City and areas contiguous thereto.

'(B) The Palm River System serving the eastern portion of the City and areas contiguous thereto.

'(C) The Davis Islands System serving Davis Islands.

'(D) The Ballast Point System serving areas contiguous to the western portion of the City.

'The Hillsborough River System includes intercepting and trunk sewers extending from a point near the Hillsborough River at Louisiana Avenue southerly along the Hillsborough River to Krause Street, thence easterly to Grant Street and 20th Street, thence southerly to the treatment plant at Hooker's Point, together with syphons under the Hillsborough River and such other water courses as may be necessary, branch sewers to existing treatment plants, connections to existing sewers and other construction necessary or appurtenant thereto. A main sewerage pumping station will be located at the Hooker's Point treatment plant discharging the sewerage into the plant. A sewerage pumping station will be located in the vicinity of Krause Street and the Hillsborough River discharging sewerage into the intercepting sewer.

'The Palm River System includes intercepting and trunk sewers extending from a point near the junction of 42nd Street extended and the Seaboard Air Line Railway right of way, westerly to 22nd Street, thence southerly along 22nd Street to Grant Street, thence westerly to a connection with the Hillsborough River trunk sewer at Grant and 20th Streets. A sewerage pumping station will be located along the line of the sewer near 31st Street discharging into the intercepting sewer.

'The Davis Islands System includes a force main extending from a point near Severn Avenue between Potomac Avenue and South Davis Boulevard northeasterly across Davis Islands and the ship channel to the Hooker's Point treatment plant. A sewerage pumping station will be located at the head of the force main discharging into the force main.

'The Ballast Point System includes trunk sewers extending along the shore of Hillsborough Bay from Howard Avenue to Ballast Point with branch sewers on Bay to Bay Boulevard from Manhattan Avenue to Bayshore Boulevard, along Lisbon Avenue from Swann Avenue to Bay Boulevard, along Swann Avenue from Himes Avenue to Armenia Avenue, and along Armenia Avenue from Grand Central Avenue to Swann Avenue. A sewerage pumping station will be located at the Ballast Point treatment plant discharging the sewerage into the plant. A sewerage pumping station will be located along the trunk sewer above Ballast Point discharging into the trunk sewer.

'Approximately seventy-seven (77) miles of lateral or collecting sewers will be constructed to collect sewerage from densely populated sections within and without the City and to convey sewerage to intercepting and trunk sewers.

* * *

'(c) Application has been made to the United States of America to aid in financing the construction of the Sewerage Works by making a grant of Forty-five (45%) per centum of the cost thereof upon completion, as determined by the Federal Emergency Administrator of Public Works.

* * *

'Section 4. For the purpose of providing funds for paying the cost of constructing the Sewerage Works in excess of the proceeds of any grant which the United States may make pursuant to the application above mentioned, there shall be issued under authority of Chapter 17118, General Laws of Florida, 1935, and subject to the election and the hearing hereinafter provided for, revenue certificates of the City of Tampa in the aggregate principal amount of Two Million Nine Hundred Thirty-four Thousand ($2,934,000) Dollars. Said certificates shall be designated 'Sewer Revenue Certificates' and shall consist of 2,934 certificates of the denomination of $1,000 each, numbered 1 to 2,934, inclusive. Said certificates shall be dated December 1, 1938, shall bear interest at the rate of four (4%) per centum payable semi-annually on the first days on June and December in each year, and shall mature annually, December 1, in the order of their numbers, lowest number first, as follows:

Year of Maturity Principal Amount

1941 $ 60,000

1942 65,000

1943 65,000

1944 65,000

1945 70,000

1946 70,000

1947 75,000

1948 75,000

1949 80,000

1950 85,000

1951 85,000

1952 90,000

1953 95,000

1954 95,000

1955 100,000

1956 105,000

1957 110,000

1958 115,000

1959 120,000

1960 125,000

1961 130,000

1962 135,000

1963 140,000

1964 145,000

1965 150,000

1966 155,000

1967 160,000

1968 169,000

'The certificates of said issue shall be subject to redemption at the option of the City of Tampa in whole or in part, on any interest payment date prior to their respective maturities, at the principal amount thereof and accrued interest, together with a premium of one-fourth (1/4) of one (1%) per centum of the principal amount thereof for each twelve (12) months period or fraction thereof between the date of redemption of each such certificate and the date or maturity thereof, provided that in no event shall such premium exceed five (5%) per centum of the principal amount and provided at least thirty (30) days prior to any interest payment date upon which such redemption is to be made a notice of intention to make such redemption, signed by the City Comptroller and stating the numbers of the certificates so to be redeemed, shall have been published. * * *

* * *

'Section 5. * * *

'This Certificate is one of a duly authorized issue of Two Million Nine Hundred Thirty-four Thousand (2,934,000) Dollars Sewer Revenue Certificates, all of like date and tenor, except as to maturities, and issued or to be issued to provide funds for paying the cost of constructing works for the collection, treatment, purification and disposal of sewerage (herein called the Sewerage Works) and is issued under the authority of and in full compliance with the Constitution and laws of the State of Florida, including Chapter 17118, General Laws of Florida, 1935, and an ordinance duly adopted by the legislative body of said City, and the issuance of said certificates has been approved by a majority of the votes cast at an election legally called and held in which a majority of the freeholders who are qualified electors residing in said City of Tampa participated.

'Pursuant to the provisions of said Chapter 17118 and said Ordinance the principal of and the interest of this certificate and all other certificates of said issue are payable solely from the Sewerage Works...

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