Village of North Palm Beach v. Mason

• Decision Date: 17 June 1964
• Docket Number: No. 32794,32794
• Citation: 167 So.2d 721
• Parties: VILLAGE OF NORTH PALM BEACH, a municipal corporation in Palm Beach County, Florida, Petitioner, v. Edwin L. MASON, Jerry W. Carter and Wilbur C. King, as and constituting the Florida Railroad and Public Utilities Commission, and North Palm Beach Utilities, Inc., Respondents.
• Court: Florida Supreme Court

Page 721

167 So.2d 721

VILLAGE OF NORTH PALM BEACH, a municipal corporation in Palm Beach County, Florida, Petitioner, v. Edwin L. MASON, Jerry W. Carter and Wilbur C. King, as and constituting the Florida Railroad and Public Utilities Commission, and North Palm Beach Utilities, Inc., Respondents.

No. 32794.

Supreme Court of Florida.

June 17, 1964.

Rehearing Denied Oct. 22, 1964.

Burns, Middleton, Rogers & Farrell, Palm Beach, for petitioner.

Lewis W. Petteway and Richard J. Brooks, Tallahassee, for Florida Railroad and Public Utilities Commission; Ervin, Pennington & Varn, Tallahassee, and Starr W. Horton, Miami, for North Palm Beach Utilities, Inc., respondents.

HOBSON, Justice (Ret.).

This case is before us upon a petition for a writ of certiorari filed by the Village of North Palm Beach and directed to the Florida Railroad and Public Utilities Commission's order #3546, dated March 13, 1963.

We shall take the history of the case of factually set forth in the brief of the petitioner. The respondent, North Palm Beach Utilities, Inc., agrees generally with this statement or history of the case but expressly states that 'the Utility cannot, of course, accept the conclusions of the Village therein contained.' We have attempted to delete such conclusions.

The statement or history of the case follows:

a. The Village was created by Chapter 31,481, Ex.Sess.1956, and laws supplemental and amendatory thereto. Its charter provides in § 3:

'(9) To give and grant franchises upon such terms and conditions as the Council shall prescribe, for a term not longer than thirty (30) years, to those engaged in furnishing gas, water, electric, telephone, transportation, sewer or other public service. * * *.'

b. By its ordinance No. 5 enacted on October 22, 1956, it gave respondent Utility a franchise for a water and sewer system in the Village which therein set the applicable initial charges and rates.

c. Chapter 57-1697, Laws of Florida, Special Acts, of 1957, authorized the Board of County Commissioners of Palm Beach County, Florida, under certain conditions therein set out, to give sewer and water franchises in unincorporated areas of said County, but not in incorporated areas of the County.

d. In June of 1959, Chapter 59-372, Laws of Florida, Acts of 1959 (now codified as Chapter 367 F.S.), and known as the 'Water and Sewer System Regulatory Law,' became effective.

e. In July of 1959, under the provisions of said Chapter 367 F.S., the said Board of County Commissioners passed the enabling resolution making Chapter 367 F.S. applicable in that County.

f. On November 3, 1960, the respondent Commission by its orders numbers 3042 and 3043 granted the Utility Certificates of Public Convenience and Necessity for operation of a then existing Water and Sewer System in the Village.

g. In January of 1962, tghe Utility filed with the respondent Commission, under Chapter 367 F.S. its Petition for Rate Adjustment, marked in docket 6492 WS. No further proceedings were held in said docket.

h. In June of 1962, the Utility filed with the respondent Commission, under Chapter 367 F.S. its Amended Petition for General Rate Increase, marked in docket 6654 WS.

i. To said Amended Petition mentioned in the preceding sub-paragraph h., the Village filed its Motion to Dismiss which was a short time later amplified by two supplements.

j. Public hearings were had by the respondent Commission on September 4 and October 30, 1962. On September 4, 1962, the Motion of the Village to Dismiss, as so supplemented, was argued but was taken under advisement by the respondent Commission, whereupon it at once proceeded to a hearing on the merits of the Amended Petition without permitting the Village an opportunity to take issue with or file an answer to said Amended Petition.

k. By its order number 3546, dated March 13, 1963, the respondent Commission granted the prayers of the Amended Petition of the Utility and by the same order denied the Motion to Dismiss, as supplemented, of the Village.

1. A petition for Reconsideration or Rehearing of said order number 3546 was timely filed by the Village and was denied by order of the respondent Commission dated April 11, 1963, number 3558.

m. Within the time provided by law, the Village has filed in this Court its Petition for Writ of Certiorari to the respondent Commission. The petitioner below is also named as a respondent herein.

The petitioner contends first that the Commission does not have jurisdiction in this case. The second question propounded is couched in the following language:

'Where, in a rate proceeding under the Water and Sewer System Regulatory law, it appears the engineering report, required by Section 12 of that law (§ 367.12(2) FS), filed with the Commission when the applicant received its certificates of public convenience and necessity, included in the value of the properties described in said report distribution lines of the company which had been contributed to it without cost, should the Commission, in determining proper rates, take into consideration that such properties were contributed to the company without cost, or should it consider said engineering report as a 'starting point' and refuse to consider whether or not items therein have a nil cost basis to the company?'

We do not deem it necessary or proper in this opinion to answer this second question for reasons which will hereinafter become apparent.

The third point made by petitioner constitutes a challenge to the constitutionality of Chapter 59-372, Acts of 1959, now codified as Chapter 367, F.S. Petitioner's point number 4 likewise assails the validity of this same legislative act. Petitioner under point number 3 contends that said act violates the uniform operation requirements set forth in Sections 20 and 21, Article III of the Florida Constitution, F.S.A. In support of point number 4, petitioner says that such act fails to afford equal protection of the laws to the citizens of the Village of North Palm Beach, Florida, contrary to the provisions of the Federal and State Constitutions.

Under point number 5, the petitioner poses a query containing two facets. We quote from petitioner's brief:

'Did the procedure adopted by the respondent Commission at its hearings whereby the village was foreclosed of an opportunity to file an answer or other affirmative defense to the amended petition for rate increases, and the failure of the Commission in its order number 3546 to set forth findings of fact and conclusions of law amount to departures from the essential requirements of the law?'

Counsel for petitioner in their agruments in support of point 1 take the position that the Commission did not have jurisdiction of this rate proceeding because the applicant for the rate increase never held a franchise from Palm Beach County, Florida, and that the certificates of public convenience and necessity which the applicant does hold were issued without authority by the Commission as a result of the Commission's misconstruction of F.S., Section 367.06, F.S.A.

The Commission apparently held that it had jurisdiction and the right or power to issue certificates of public convenience and necessity to the respondent Utility by Construing F.S., Sections 367.05 and 367.06, F.S.A., in pari materia. Under this process of reasoning the Commission found the indication of a legislative intent that a county franchise be required only when a utility operates in unincorporated territory. We find some difficulty in following this line of reasoning but we have no trouble in determining the Commission's jurisdiction in this cause. It is indeed an arduous task to find a basis for considering the aforementioned sections in pari materia because Section 367.05 deals exclusively with 'Procedure for obtaining certificates for a new system.' On the other hand, Section 367.06 deals with an entirely different subject, 'Certificates for existing systems.' Each section has its independent field of operation and is complete within itself insofar as the question of the issuance of certificates is concerned.

We are of the view that the jurisdiction of the Commission stems from F.S., Section 367.03, F.S.A., which qe quote in pertinent part as follows:

'Every public utility excluding utilities owned or operated by governmental agencies engaged on June 18, 1959, in operating, constructing or extending any water system or sewer system shall register with the commission within in sixty days after June 18, 1959, * * *.' (Italics supplied.)

We note that utilities owned or operated by governmental agencies are excluded and later on in Chapter 367 there are other exemptions and exclusions from the operation of the 'WATER AND SEWER SYSTEM REGULATORY LAW.' (Chapter 367, F.S.) In discussing the challenges to the constitutionality of said legislative act we will deal in more detail with these exceptions or exemptions.

We think that if any sections of the subject act are to be considered in pari materia they should be Sections 367.03, 367.06 and 367.21.

Section 367.06 ¹ might be said to be subject to more than one interpretation or construction. The puzzling question obviously is whether the qualifying phrase 'holding a valid and existing franchise granted by the board of county commissioners of any county of this state in a given county' should be visited back upon 'Every public utility' or only be considered as attaching to 'any person, firm or corporation.' It has been a long time since any of us struggled with trammatical construction in the classroom, all the while wishfully thinking of recess and the playground, but what we feel that we learned in those halcyon days of the yesteryears requires us to conclude that the opening words 'Every public utility' of Section 367.06, being set apart as they are by a comma and the disjunctive 'or' from the remaining items of the series, are not qualified by the phrase 'holding a valid and existing franchise granted by...