66 Fla. 52 | Fla. | 1913
Lead Opinion
A petition was presented to this court in which it is in effect alleged that a judgment of the municipal court of the City of Quincy, Florida, imposing a penalty upon the petitioner, was affirmed on appellate proceedings in the Circuit Court; and that the judgment is unlawful and void because the ordinance on which it is predicated is not authorized by the powers granted to the municipality. In response to the prayer of the petition a writ of certiorari was issued from this court directing that a certified copy of the record of the proceedings complained of be brought here for review.
As the Circuit Courts have final appellate jurisdiction
Certiorari is a common law writ which issues in the sound judicial discretion of the court to an inferior court, not to take the place of a writ of error or an appeal, but to cause the entire record of the inferior court to be brought up by certified copy for inspection, 'in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law, in cases where no direct appellate proceedings are provided by law. Seaboard Air Line Ry. v. Ray, 52 Fla. 634, 42 South. Rep. 714; Jacksonville T. & K. W. Ry. Co. v. Boy, 34 Fla. 389, 16 South. Rep. 290; Hunt v. City of Jacksonville, 34 Fla. 504, 16 South. Rep. 398.
The ordinance of the municipality that is here assailed is as follows r “That from and after the passage, publication and approval of this ordinance, it shall be unlaAvful for any person to use, keep, erect or maintain within the corporate limits of the Oity of Quincy, Florida, any open or surface closet or privy, Provided, that this ordinance shall not apply to persons aaíiosc property, lot, house or residence is situate more than two hundred feet from the main seAver line or the water main.”
Mtmicipalities are legal entities for local governmental purposes, and they can exercise orily such authority as is conferred by express or implied provisions of law. The existence of authority to act cannot be assumed, but it should be made to appear. Where particular powers are expressly conferred upon a municipality and there is also a general grant of.poAver, such general grant by intendment includes all powers that are fairly Avithin the terms
When there are both special and general grants of power to municipal corporations to pas® ordinances, those given under the special -grant, as a general rule, can only be exercised in the cases and to the extent as respects those matters allowed by the charter or incorporating act; and the powers given under the general grant do not enlarge or annul those conferred by .the special grant in respect to its subject-matters., but give authority to pass ordinances, reasonable in their character, upon all other matters within the scope of the municipal authority not repugnant to the constitution and laws of the State. Mernaugh v. City of Orlando, 41 Fla. 433, 27 South. Rep. 34; Porter v. Vinzant, 49 Fla. 213, 38 South. Rep. 607.
General powers expressed in comprehensive terms are conferred upon municipalities because though particular powers are specifically given, it is. difficult to enumerate all the powers that may be useful and intended for the general purpose designed, or to make effective the particular powers expressly conferred. But the powers intended to be given by the general grant of authority may be ascertained by a consideration of the main object contemplated and of the nature, extent and purpose of the powers expressly conferred; for in such cases general, powers are •given not to enlarge, but to make effectual the particular
When to accomplish a general municipal purpose authority and powers are expressly conferred upon a city, and it does not appear that only the powers expressly given are to be exercised, other authority and powers that are incident to or consistent with those expressly given, may be implied when necessary to fully effectuate the express powers and the general purpose designed, if such implication may fairly arise from the language used and the object desired. But when authority and powers with reference to particular subjects are expressly conferred in specific terms, other authority and powers that in their nature or extent would materially increase or be inconsistent with the powers that are expressly given in specific and limited terms; are not to be implied, particularly when the powers expressly given do not include all the authority that may have been conferred with reference to the designated subjects. See 28 Cyc. 266; 1 McQuillim Mun. Corp. Sec. 355.
Where express specific power is conferred upon a municipality to regulate a common utility, a continuance of its use is contemplated; and the power given to regulate the.use does not authorize a prohibition of a lawful use in any part of the city. If the use degenerates into a nuisance it is within the power of the city to abate the nuisance or to prohibit the use. Power of a municipality to prohibit the use of earth closets within its limits cannot b.e implied merely from authority expressly given to
It may be that the legislature could have expressly conferred upon the city larger powers including authority by reasonable regulations to prohibit the use of earth closets and privies in the city after a more suitable system had been provided for; but no such extensive power has been conferred.
The Charter Act of the City of Quincy provides that “The mayor and city council shall have power by ordinances, to provide for the cleaning and keeping in good sanitary condition any and all premises within the limits of the city; to regulate the construction, location and arrangement of earth closets and privies; to let by contract or create a specific department for the removal of all excremente and filth from privies and earth closets; to
By express specific provision of the charter act the municipality is authorized “to regulate the construction, location and arrangement of earth closets and privies” in the city; but there is no express authority to prohibit the use of earth closets in any part of the city. The express power given “to regulate the.........location........
The provisions of the charter act authorizing the city to issue bonds for the purpose of constructing and maintaining waterworks and a “system of sewerage” &c., do not expressly or impliedly -give the city power to prohibit the use of earth closets; and such provisions do not cause the general grants of power or the general welfare clauses, to enlarge or to extend the express limited powers given in definite restrictive terms “to regulate the construction, location and arrangement” and use of earth closets and privies in the municipality. The «charter seems to contemplate the use of a sewrer system and also of earth closets and privies, the power given to abate nuisances being-broad enough to prevent the improper use of either utility.
The ordinance here complained of in substances forbids the use of earth closets upon property in the city that is situate not more than 200 feet from the “main sewer line or the water main” without reference to whether such closets are a nuisance. The enforcement of such an ordinance is not within the express or implied powers of the city; and a® the city can exercise only such powers as are conferred upon it by statute, the ordinance is invalid because. not authorized by law1; and the judgment of the municipal court imposing a penalty for a violation of the
The federal question decided in Hutchinson v. City of Valdosta, U. S., 33 Sup. Ct. Rep. 290, is not involved here.
The judgment is quashed.
Dissenting Opinion
(dissenting.)
Stripped to its last analysis the majority opinion holds chat the specific power to regulate the location of earth closets by necessary inference destroys the power to prescribe a locality in which they may be used.
That earth closets in cities are tolerated at all only by reason of some necessity, financial or otherwise, and that they may be prohibited under the most ordinary general grant of power must be admitted. The correlative power to force sewer connection, but the positive form of the same power, is declared by the Supreme Court of the United States in the recent Valdosta case, cited in the majority opinion, to be “the commonest exercise of the police power” by a municipality.
It is true that in the charter granted in 1907, after conferring the specific power to regulate the location of these closets, the legislature gave detailed powers as to the enforcement of regulations looking to their comparative cleanliness and sanitation, and also provided that the municipality might issue bonds to enable it to put in water works and a sewerage system. The legislature knew that this would take time, and that the city would not in all probability be completely supplied with sewers
I cannot believe that the Mernaugh case rightly read, forces us thus far, and if it does, then the sooner its binding authority be questioned by the court that rendered, it, the better for the State.
