83 Fla. 484 | Fla. | 1922
Chapter 5530 Acts of 1915, authorized the City of Pensacola to issue negotiable interest bearing bonds to “be used for the refunding of the present indebtedness of the city, and for such other municipal purposes as may be provided by ordinance and approved by a majority of the votes cast at an election held for the purpose.” The statute requires the ordinance to ‘ ‘ express the purpose and approximately the amounts for each purpose, for which such issues of bonds are to be used,” etc. An ordinance of November 29, 1912, provided for an issue of bonds “for the purpose of establishing, constructing and equipping one or more municipal wharves or docks, including dredging and other necessary harbor improvements, and the purchase of property necessary to supplement city property, to be used as sites for such purposes, the sum of Three Hundred Thousand ($300,000.00) Dollars, or so much thereof as may be necessary.” The ballots used at the approving election followed the ordinance and the proposed issue of bonds was approved by the voters at an election held December 30, 1912. This issue of bonds was approved by Chapter 6747, Acts of 1913. The bonds were sold in 1921, and the city authorities were negotiating with Wells et al., for the purchase through a proposed deed of conveyance of property for dock and wharf purposes, when a restraining order was granted, it being alleged on the facts set up in the bill of complaint brought by certain taxpayers, that the city commissioners have no authority of law to purchase a dock for the city, that the power is “limited to establishing, constructing and equipping mu
By answer the defendants controverted the allegations upon which equitable relief are predicated, and among other pertinent matters, averred:
.- “13. That before deciding to acquire the property described in the proposed -deed from Wells et al., to the City of-Pensacola, the Board, of City Commissioners of the City of Pensacola made a careful and--'exhaustive examin
“14. That the Board of Commissioners of the City of Pensacola, in the establishment, construction, §,nd equipment of a municipal dock for said city was under a dual responsibility of providing such municipal dock and also providing for the payment of the annual interest on the outstanding bonds of said city, sold for such purpose, and to provide a sinking fund for the ultimate retirement of said bonds; and for the purpose of establishing, constructing, and equipping such municipal dock, the said Board of Commissioners' were restricted to the amount realized from the sale of such bonds, and were not authorized to spend any further sums of money therefor.
“That, all.the available sites in the said City of Pensacola for such municipal-dock, save Palafox Wharf site, were unimproved and consisted only of land lying under the waters of the Bay of Pensacola, and to acquire certain of said sites would have required a large expenditure of funds, and any of such sites would have necessitated an additional large expenditure for dredging to enable large vessels to come alongside of a municipal dock located upon any of such sites; that, acting within the available funds, using any of the other available sites for the purpose, the said Board of Commissioners would have been obliged to construct a pier wholly of wood with superstructure of wood, exposing such pier to the eeasless activities of worms and barnacles and other parasites in the waters of the Bay of Pensacola, which, in the opinion of the Board of Commissioners would require a continual outlay for replacement, or would result in the ultimate destruction of such a pier. That a delay of at least one year would result from
“That the said Palafox Wharf consists, save for;a small part of a wooden wharf, of a bulkheaded fill of sand'and rock, impervious to damage by worms, barnacles and other water ■ parasites, and so constructed and protected as to last for an indefinite period; having already been used for
“That for the reasons given, and acting upon the advice of the United States Engineer for the Port of Pensacola, and upon the advice of the civil engineer' regularly employed by the City of Pensacola, and after consulting with a large number of prominent citizens and taxpayers of the said City of Pensacola, and acting only from good motives and for • the purpose of advancing the interest of said city, and conserving the interests of the taxpayers of said city, the said Board of Commissioners did determine and decide to acquire said Palafox Wharf upon the terms hereinbefore recited.
“15. That, after acquiring said Palafox Wharf upon the terms and' conditions stated, and for the consideration stated, there would remain on hand such money as to be sufficient to adequately establish, construct and equip said dock as a municipal dock, and provide adequate warehouses and facilities for handling all of the traffic and business that would come to. said dock.
“16. That, the area of said dock reserved in' the proposed deed from Welles et al., to the City-of Pensacola,' would not interfere in anywise with the establishment, construction and equipment of a municipal dock by the City of Pensacola, and would .not interfere ■ in any wise with the same, and said dock would be- adequate, complete and satisfactory in every respect; that the part of said dock reserved by said Welles, now, and has been, for many years;
"17. That it was impossible for the City of Pensacola to acquire said Palafox dock without the reservation made in the proposed deed by said Welles, because the price of same was beyond the available funds, and because if tl^ funds had been available to acquire said dock without such reservation, it would have necessitated the said Welles removing his. fish business therefrom, and that it was only by reason of such reservation that the Board of Commissioners are enabled to close with said Welles for the purchase of said dock for- the consideration mentioned, and to leave on hand sufficient funds to adequately establish, construct and equip the same into a municipal dock. ’ ’
•Subsequently the court denied motions to dissolve the restraining order or temporary injuction,. and the defendants appealed.
While the granting, denial or dissolving injunctions is discretionary within the limitations of applicable rules of law, and while the dissolution of a restraining order is not a matter of course when the equities of the bill are denied by answer, yet if the answer by appropriate denials and averments sufficiently meets the asserted equities upon
The authority given of establishing, constructing, and equipping one or more municipal wharves or docks including dredging and other necessary harbor improvements, and the purchase of property necessary to supplement city property to be used as sites for such purposes,’’‘’cannot fairly be said to be so limited and restrictive in its terms and purpose, as to exclude power to purchase property that is suitably located and the improvements thereon appropriately constructed for use in establishing, constructing and equipping one or more municipal wharves or docks. It appears from the answer, if not from the bill itself, that the property designed to be purchased is suitably located and constructed for the purposes that are-within the authority conferred. The reservation for five-years of the use of a portion of the property by the proposed grantors for a continuance of their present business; thereon not in competition with the city and apparently not impeding its purposes is not an insurmountable obstacle when the reservation can be purchased under, the terms of the deed of conveyance and the reservation is not expressly or impliedly prohibited by law or by the author- ■ ity conferred upon the city commissioners. Necessarily a wide discretion is vested in the city commissioners in executing the powers conferred upon them, and such discretion will not be controlled by the courts when the authority conferred by the law is not clearly violated or the
discretion palpably abused. See Towle v. State, 3 Fla. 202; State ex rel. Moody v. Barnes, 25 Fla. 298, 5 South.
The answer meets the allegations of the bill that the amount proposed to be paid for property as contemplated will not leave sufficient funds to establish, construct and equip one or more municipal wharves or docks. While the bill waived an answer under oath, the answer is sworn to and may be regarded as an affidavit on the motion to dissolve the temporary injunction. The complainants did not by any evidence meet the explicit and responsive averments of the answer.
The city commissioners have no power to contract a liability of the city for loss of property reserved to the grantors in the proposed conveyance, and such a provision would be inoperative.
Should the city commissioners attempt to exceed or abuse their authority in perfecting the contemplated purchase, appropriate relief may be had in due course of law.
. In view of the provisions of Section 5, Chapter 8537, Acts of 1921, granting and vesting the title here alleged to be in the State, the alleged present ownership of the State is not sufficient to warrant a continuance of the temporary injunction that is hereby adjudged and ordered to be dissolved.
Reversed.