State v. Tampa Waterworks Co.
| Decision Date | 07 July 1908 |
| Citation | 47 So. 358,56 Fla. 858 |
| Parties | STATE ex rel. ELLIS, Atty. Gen. v. TAMPA WATERWORKS CO. |
| Court | Florida Supreme Court |
In Banc. Quo warranto by the state, on the relation of W. H Ellis, Attorney General, against the Tampa Waterworks Company. Demurrer to writ overruled.
Syllabus by the Court
Articles of incorporation, obtained under the general law authorizing the corporation to engage in the business of rendering public service in a municipality, do not ipso facto authorize the corporation to use privileges and franchises that may be conferred by the municipality to render the public service herein.
Municipalities are subordinate governmental entities, and can exercise only such powers as are legally conferred by express provisions of law, or such as are by fair implication and intendment properly incident to or included in the powers expressly conferred, for the purpose of carrying out and accomplishing the object of the municipality. Powers that are indispensable to the declared objects and purposes of a municipality may be inferred or implied from powers expressly given that are fairly subject to such construction.
The difficulty of making specific enumeration of all such powers as the Legislature may intend to delegate to municipal corporations renders it necessary to confer some power in general terms. The general powers given are intended to confer other powers than those specifically enumerated.
General powers given to a municipality should be interpreted and construed with reference to the purposes of the incorporation. Where particular powers are expressly conferred, 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 conferred. The law does not expressly grant powers and impliedly grant other powers in conflict therewith.
If reasonable doubt exists as to a particular power of a municipality, it should be resolved against the city; but when the particular power is clearly conferred, or is fairly included in or inferable from other powers expressly conferred, and is consistent with the purposes of the municipality and the powers expressly conferred, the existence of the power should be resolved in favor of the city, so as to enable it to perform its proper functions of government.
Authority to make provisions within lawful limitations for securing or furnishing to a city and its inhabitants an abundant supply of good water for all purposes is a usual and necessary power of a municipality, and such power may be included in powers given in general terms, where there is nothing in the enumeration of particular powers conferred to limit in this particular the operation of the general powers conferred.
Unless expressly or impliedly restrained by statute, a municipal corporation has a discretion in the choice of means and methods for exercising the powers given it for governmental or public purposes, and the usual limitations upon the actions of municipalities within their legal powers are good faith and reasonableness, not wisdom or perfection.
When action is taken by a municipality in the exercise of its powers, the methods used will not be controlled by the courts, where there is no abuse of power or discretion. All doubts as to the propriety of means used in the exercise of an undoubted municipal power will be resolved in favor of the municipality.
The authority given a municipality in the general law 'to make and sink wells, erect pumps, dig drains,' etc., is distinct from, and does not limit or qualify, the express particular authority 'to pass all laws necessary to guard against fire,' or the charter power 'to provide for the establishment of waterworks,' nor limit the powers given by the general clauses conferring powers upon the municipality.
The limitations upon the taxing and bonding powers of the city of Tampa, contained in the charter act and the General Statutes of the state, do not preclude the city from granting privileges in its streets, or from making valid contracts by ordinance to carry out a lawful purpose of the municipality in procuring for the city and its inhabitants an adequate supply of good water for all purposes.
Where a city is authorized to provide for the establishment of waterworks, and to do and regulate any other matter or thing that may to promote the peace, health, welfare, prosperity and morals of the city, and to do and perform all acts necessary and best adapted to the improvement and general interest of the city, the method used by the city in providing waterworks for the city is within the lawful discretion of the city, if no particular method is indicated by the law.
The powers of the city of Tampa in providing waterworks for the city and its inhabitants are not limited to the establishment of a municipal plant, and the city has authority to confer upon a corporation proper privileges and franchises in the use of the streets of the city to enable the corporation to furnish an adequate supply of good water for all purposes to the city and its inhabitants.
An ordinance of a city containing provisions sufficient of themselves to accomplish an expressed lawful purpose, the fact that the ordinance also contains separable illegal or improper provisions will not necessarily render the ordinance void in toto, when the elimination of the illegal portions will not cause results not intended, or affect the integrity of the remaining portions for the purposes expressed.
Provisions of law applicable to the subject-matter of contracts are parts of the contracts, whether so expressed or referred to in the contracts or not.
Where the law authorizes the regulation of service rendered the public, such law became a part of and controls contracts providing for the public service.
Where a municipal contract for the rendering of public service contains provisions that would be unenforceable, because unreasonable, and the law provides for the regulation of the service rendered under the contract, such right to regulate may relieve the apparent unreasonable features of the contract.
Municipal contracts for the rendering of public service will be sustained, where the power is given to make the contract, and the terms of it, taken with the law controlling them, are not clearly violative of some provision or principle of law.
The powers conferred upon the city of Tampa by its charter and the general law do not authorize the city to grant an exclusive privilege to use the streets of the city for the purpose of furnishing water to the city and its inhabitants.
Provisions contained in an ordinance of the city of Tampa relating to rates to be charged and to the capacity of a waterworks plant authorized in the streets should be construed as having reference to the expressed design to furnish an adequate supply of good water for all purposes and to the governmental authority to regulate such matters as they affect the rights of the public.
As the expressed purpose of the Tampa municipal ordinance contract for the furnishing of water to the city and its inhabitants can be accomplished by its valid portions, and the elimination of invalid or improper portions does not injure the city, it cannot be said that it appears the ordinance would not have been passed without the invalid portions, or that an elimination of the invalid portions would cause results not intended by the ordinance.
E. R. Gunby and Glen & Himes, for relator.
P. O Knight and Sparkman & Carter, for respondent.
In quo warranto proceedings instituted here by the Attorney General against the Tampa Waterworks Company, a corporation, it is alleged that the company is exercising, without any warrant or authority of law, the privileges and franchises of using the public streets of the city of Tampa for stated purposes of a system of waterworks. A writ was issued by this court requiring the Tampa Waterworks Company 'to show by what warrant or authority it has used and does use the privileges and franchises aforesaid, to wit, that of using the public streets of the city of Tampa by maintaining and operating a system of pipes, mains, and hydrants therein for the distribution and supply of water to the city of Tampa and the inhabitants thereof for public and private uses, and that of having an exclusive right to furnish water within the city of Tampa to the said city and the inhabitants thereof.'
The return of the respondent sets up facts to show its claim of right to use the franchises and privileges alleged, and avers that while under its charter and articles of incorporation it was granted by the state of Florida the exclusive right for 20 years from the date on which it commenced successful operation of its waterworks in the streets of Tampa, yet the respondent expressly denies that it has ever exercised, claimed, asserted, or usurped any exclusive right to furnish water within the city of Tampa to said city and the inhabitants thereof. The cause is considered upon a demurrer to the return.
The writ is issued against the Tampa Waterworks Company as a corporation, and it does not directly question the right of the respondent to exist as a corporation entity. The mandate does not call for a showing as to the right to exist as a corporation, but it requires the respondent only to show by what warrant or authority it has used and does use the privilege and franchise in the public streets as alleged. This being so, it is not necessary to consider the questions raised by the relator as to the constitutionality of the general incorporation acts of 1868 (chapter 1639, p. 118 Laws...
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