Village of Virginia Gardens v. Haven Water Co.
| Citation | 91 So.2d 181 |
| Parties | The VILLAGE OF VIRGINIA GARDENS, a municipal corporation, Appellant, v. HAVEN WATER CO., Inc., Appellee. |
| Decision Date | 27 June 1956 |
| Court | United States State Supreme Court of Florida |
Franks & Gordon, Miami, for appellant.
G. David Parrish, Miami, for appellee.
April 14, 1954, appellee as plaintiff filed its complaint against appellant as defendant praying that Ordinance 47 of the Village of Virginia Gardens be adjudicated to be unconstitutional and for temporary injunction restraining enforcement of said ordinance. April 16, a special master was appointed to take testimony as to the matter of granting the temporary injunction. In the meantime, an amended complaint was filed praying for declaratory decree and other relief. A rash of other pleadings was filed that are not material and served no useful purpose. The cause came on for hearing before the chancellor November 9, 1954, and on July 25, 1955, a final decree was entered whereby Ordinances 47 and 49 of appellant Village of Virginia Gardens were declared unconstitutional and the defendant was enjoined from enforcing them. This appeal is from the final decree.
The plaintiff has a franchise to furnish water to its patrons in the municipality. This is a controversy about the charges made for water. The parties are wide at variance as to the questions presented. Since the question of jurisdiction is challenged, we first consider that query. It is charged that the chancellor was without jurisdiction to hear and determine the cause because appellant sat as a rate making body with power to fix water rates and there is no showing that appellee exhausted its remedy before the administrative body.
Appellant merely asserted that appellee did not exhaust its administrative remedy. There was no showing that such a remedy existed and when that is the case, it takes more than the mere ipse dixit of one asserting it to establish such a remedy. It appears from the record that counsel for both parties stipulated in the lower court that there was no prescribed administrative procedure available to them to seek a settlement of the water rate question. One of the councilmen, being a defendant, testified that there was no ordinance of appellant in effect relating to procedure for establishing water rates. In addition to the foregoing, the evidence conclusively shows that by attempts at negotiation and otherwise appellee pursued and exhausted every remedy available to it to settle the controversy with the Village before institution of this suit.
It is next contended that the chancellor muffed the ball in ruling on the validity of Ordinance 49 as well as Ordinance 47, the inference being that the issue as to both was not raised in the pleadings but was tried by implied consent of the parties.
The validity vel non of Ordinance 49 was expressly raised in the trial court by answer of appellant to the amended complaint as follows: 'Ordinance 47 was, on the 18th day of May, 1954, amended by Ordinance 49, a copy of which is attached hereto and made a part hereof, marked Exhibit 1.' Paragraph XVI, answer to the amended complaint, referred to 'rates as fixed by Ordinances No. 47 and 49.' Ordinance 49 is entitled 'An Ordinance Amending Ordinance 47, Establishing the Rates Which Shall be Charged for Water in the Village of Virginia Gardens, Florida.' As stated in the contents, the purpose of Ordinance 49 was to clarify Ordinance 47 and correct certain typographical errors made by the scrivener. The record shows that the effect of Ordinances 47 and 49 was to reduce the gross receipts of the plaintiff water company from the sale of water by 20 percent. From these and other factual recitals that could be interposed it appears that the answer to the question falls squarely within Rule 1.15(b), Rules of Civil Procedure, 30 F.S.A. It is also shown that appellant's attorney agreed to amend Ordinance 47 in order to cure the defects in its draftsmanship which was done for the purpose of presenting a clear issue in regard to confiscatory rates sought to be imposed. See T.R. 549, line 12.
The real point in the case is whether or not a water rate which reduces the water company's gross receipts below its reasonable costs and expenses of operation is violative of the Fourteenth Amendment to the Federal Constitution; Section 12, Declaration of Rights, Florida Constitution, F.S.A., and Sec. 167.57, Florida Statutes 1953, F.S.A.
Appellee contends that it is a privately owned water company; that all its water lines are within the boundaries of appellant Village; that appellant undertook by ordinance to reduce appellee...
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State Plant Bd. v. Smith
...rates at a level that reduced the company's gross receipts below its reasonable costs and operating expenses, Village of Virginia Gardens v. Haven Water Co., Fla.1956, 91 So.2d 181; to hold invalid a Special Act extending municipal boundaries to include rural lands, State ex rel. Davis v. C......
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Sarasota County v. Tamaron Utilities, Inc., s. 82-1594
...Additionally, a utility must be allowed to earn a rate of return sufficient to meet operating expenses. Village of Virginia Gardens v. Haven Water Co., 91 So.2d 181 (Fla.1956). In United Telephone Co. v. Mann, 403 So.2d 962 (Fla.1981), the court explained the method used by the Public Servi......
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North Florida Water Co. v. City of Marianna
...of return which appears confiscatory on its face. This approval places the District Court in conflict with Village of Virginia Gardens v. Haven Water Co., 91 So.2d 181 (Fla.1956), and Consumers Water Co. v. City of South Miami, 151 So.2d 845 (3rd D.C.A. Fla.1963), aff'd. 164 So.2d 193 (Fla.......