The State of Florida ex rel. W. H. Ellis, Attorney General, Relator, v. Tampa Water Works Company, a Corporation, Respondent, 56 Fla. 858

Whitfield, J. In quo warranto proceedings instituted by the Attorney General against the Tampa Water Works 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 water works.

A writ was issued by this court requiring the Tampa Water Works 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 'avlers ithat while rtndjer its charted- (and articles of incorporation it 'was granted by the State of Florida the exclusive right for twenty years from the date on which it commenced successful operation of its water works in the streets of Tampa, ye!t the respondent expressly denies that 'it has ever exercised, claimed, asserted or usurped any exclusive righit 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 Water Works 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 da'll 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 relatólas to the constitutionality of the general incorporation acts of 1868, Chapiter. 1639, Laws of Florida, under which the respondent claims to have obtained its charter to exist and do business as a corporation. Articles of incorporation obtained under the general law authorizing the corporation to engage in the business of rendering- pyiblic 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 therein.

As the rig-ht to exist as a corporation 'and to' do the kind of business alleged are not questioned, the existence of proper authority from; the city of Tampa to the corporation to exercise the privilege and franchise of using the streets as alleged is to be determined. • The question is the' existence of authority, not the proper exercise of if. Municipalities are established by law for purposes of government.

Their function's are performed through appropriate officers and agents, and they 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 th'e 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 expressly conferred. The law does mot expressly grant powers and imp-liedly grant others in conflict therewith.

If reasonable doubt exists a's to a particular power of a municipality it should be resolved against the city; but where 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.

Amoing the usual functions of a municipal government are those of granting privileges in the ■ use of its streets for the purpose of rendering services of a public nature, such as furnishing the municipality and its inhabitants service necessary or useful for the common welfare of -all. The furnishing of water for use and for fire protection -is a service necessary or useful for the individual and collective well-being of a city and its inhabitants.

Authority to malee 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. Porter v. Vinzant, 49 Fla. 213, 38 South. Rep. 607; Mernaugh v. City of Orlando, 41 Fla. 433, 27 South. Rep. 34.

Unless expressly or impliedly restrained by statute a municipal corporation has a discretion in the choice of means and methods far exercising the powers, given to it for governmental or public purposes., and -the usual limitation® upon the actions of municipalities within their legal powers are good faith and reasonableness, not wisdom, or perfection. Jacksonville Electric Co. v. City of Jacksonville, 36 Fla. 229, text 271, 18 South. Rep. 677.

Where action is taken by a municipality in the exercise of ilts 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.

In its return the respondent exhibits an -ordinance contract approved September 29, 1887, between the city of Tampa and the Tampa Water Works Company containing provisions “that in view, of the urgent necessity for the better protection against fire, and also to- obtain for the use of the inhabitants of said city an abundant supply of good water for all purposes,” “the exclusive right and privileges to' construct, nmintan and operate water works for public and private supply of water within said city for a term of thirty years is hereby granted * * * together with the right to lay pipes, erect hydrants, fountains and such other structures and appurtenances in any and all the streets or other public ways in the said city, a® m'ay be required for the distribution of water;” that in consideration! of $4950.00 per annum the company agreed to erect water works with a reservoir capable of bolding 100,000 gallons of water of sufficient height to give a stated pressure at a' given point in the city; to supply with water for fire purposes mains, &c., as designated; to supply with water, for the payment of dty taxes and license for the first ten years ■of the contract, the City Hall, Gu'ard House and Market House, with designated accommodations, at such places on the mains as designated by the City Council; that a sufficient tax shall be levied and Collected annually upon all taxable ■ property of ithe city to meet the payments due- under the contract as they respectively mature; that the main or pipe system- shall be laid in such streets as shall give the greatest amount of fire protection and the distribution of an adequate amount of water to the consumers ; that the company shall, in accordance with the contract set out in the ordinance, extend the water mains to any part of the said city, when ordered to clo so by the proper-authorities of the city, of Tampa; that there shall be annually levied and collected a tax of five mills of the property in the citjr for the payment of the obligations of 'the contract.

Other provisions- of the ordinance contract need not be stated here.

Chapter 3779, which became effective June 2, 1887, and established the city of Tampa, provides, in

section 7, that the “city council shall have power to make, ordain, establish and execute for the government of said city such ordinances * * * as they -shall deem necessary * * * to provide for the establishment 'of wiater works * * * and to do and regulate any other matter or thing that may tend to promote the peace, health, welfare-, prosperity and morals of the said city; and * * * said city council shall have all the powers and perform all the duties imposed upon them by the laws- of Florida * * * providing for the creation- and government -of cities and towns.” Under the general laws of the State the city council had the power “to. levy and collect a special tax annually for water works -and fire protection,”

Chapter 3605, Act-s 1885; “to pass all laws and ordinances which may be necessary for the preservation of the public health;” "to make and sink wells, erect pumps, dig drains; to- pass all necessary laws -to guard -against fire, * * * and to do and perform all such other act or acts as shall seem necessary -and best adapted to the improvement and general interest of-the city.” Sections 20 and 21, p-age 249 McClellan’s Digest of 1881. It is contended .that these provisions of law did not authorize the city of Tampa to make the contract with the respondent.

The argument is that the furnishing of water by -a municipal plant was contemplated because the general law authorized the -city council .“to- make and sink wells, erect pumps,.dig drains;” to- issue bonds for building or repairing the public works -of the city; to levy a special tax for water works and fire protection; and because the city charter empowered 'the city council by ordinance “to provide for the establishment of water Works,” and to impose fines and penalties for breaches of ordinances; -and because limitations were placed upon the power .to borrow money and issue bonds, and to make appropriations, and enabling legislation, wtas enacted, and because of the provisions as to the related powers given by the charter and by the general law., and the limitations contained in

section 8 of

Article 8 of tire constitution. The authority contained in the general law “to make and sink wells, erect pumps, dig drains,” is distinct from and does limit or qualify 'the express particular authority “to pass tall laws necessary to guard against fire” or the charter power “to provide f’oir the estabhshan'ent of water works.” Nor does the express specific .authority as to wells, pumps and drains limit the powers given under the general welfare clauses. No such purpose can be discovered in a careful consideration of all the provisions of law on the subject of the municipal powers.

Any provision made by tire city must be by ordinance, and cities -are authorized Ito contract by ordinance as well as to erect their own plants by ordinance and to perform oither duties by ordinance. The limitations upon the taxing powers of the city contained in the charter act or in ithe General Statutes of tíre State do not preclude the city from granting privileges in its streets or from making valid contracts by ordinance to carry out any lawful pun-pose of the municipality. The powers given as to taxation and appropriations are as applicable to the obligations of lawful contracts as to municipal plants.

Powers and limitations as to bonds for public works of the city dp not forbid the making of valid contracts for lawful purposes.

The method by which water works are to be provided is not indicated in the law and the city may exercise a lawful discretion in using the charter powers “to provide for the establishment of water works * * * and to do and regulate any other matter or thing that may tend to promote the peace, health, welfare, prosperity and morals of the said city,” and the powers given by the general law to dio 'and perform all acts necessary and best adapted to the improvement and general interest of the city.

The powers given the city council are not expressly or by fair implication limited to the establishment of a municipal plant for the purpose of conserving the public health, safety and general welfare by providing for the city and -its inhabitants.

It was clearly within the power of-the city under the provisions of law herein referred to, to make a valid contract with a private corporation “to obtain flor .the use of the inhabitants of said city an abundant supply of good water for all purposes,” and to confer upon the corporation proper privileges and! franchises i!n the use of toe streets of the city to enable the company to properly render the public service provided flor.

Under the express authority given toe .city council of the city of Tampa by the charter act “to provide for the establishing of water Works,” and to “have all the powers and perform all the duties imposed upan thenr by the laws of Florida * * * providing for the creation and government of cities,” taken in connection with the powers given» by the general law on the subject “to levy and collect a special tax annually for water works and fire protection;” “to pass all laws and ordinances which may be necessary for toe preservation of the public health“to- make and sink wells, erect pumps, dig drains; to pass all necessary laws to guard against fire” * * * “and to dto and perform all such other act or -acts as shall seem necessary and best adapted to. the improvement and general interest of the. city,” and construed with reference to the principle that while municipalities can exercise only such powers as are given expressly or by necessary or fair implication from those expressly given, yet such municipalities are given all the powers that are incident to -and by implication are fairly included in powers expressly given and that are necessary to the purposes of their creation, it is clear that the usual and essential authority to make provision for an adequate supply of good water for the use of the city and its inhabitants is included in the powers conferred upon and the duties imposed upon the 'city of Tampa when the contract was made.

It is also- clear that the city had the choice of means for securing such supply of water, since nothing in the charter act or general law can be fairly held to limit the bona fide discretion necessarily vested in the city for the public welfare.

It is contended that even if the city had the power to malee tire contract with the respondent the particular contract is vtoid- because it undertakes to confer an exclusive privilege to fix rates,'to limit the capacity of the plant, to -exempt the property from taxation for ten years, to provide an unlawful levy of taxes and appropriation of 'funds-, to- divide municipal fines, to guarantee interest onJ respondent's bonds and to regulate subscription's to the stocks, and bonds of the respondent.

Where a municipality in the exercise of an undoubted power confers by ordinance privileges- -and franchises for a proper .purpose -clearly expressed in the ordinance, which contains ¡{provisions- sufficient of themselves ¡to accomplish Mile (expressed purpose, the fact ith-at the ordinance contains separable illegal or improper provisions will not necessarily render th-e ordinance void in toto when- the elimination of the illegal portions -will not cause material results rio-t intended, or affect the integrity of -the remaining portions for the purposes designated by -the'-ordinance.

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 becomes a part of and' controls the contracts providing for the public service. State ex rel. Attorney General v. Atlantic Coast Line Ry. Co., 52 Fla. 646, 41 South. Rep. 705.

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 the contract taken with the-law controlling them • are not clearly vio-l-ative of some provision or principle of law.

The powers conferred upon the city of Tampa by its charter and by general law do not gdv-e to the city authority to grant an -exclusive privilege to» use the streets of the city for the purpose -of furnishing water to- the-city and its inhabitants (Florida Cent. & P. R. Co. v. Ocala St. & S. R. Co., 39 Fla. 306, 22 South. Rep. 692; Capital City Light & Fuel Co. v. City of Tallahassee, 42 Fla. 462, 28 South. Rep. 810), but the respondent expressly disclaims any such exclusive right.

The provision contained in the contract -as to rates to be charged for the water is not void under the law, but it is subject to and is controlled by the right of the legislature to provide for regulating the rates under the provisions of

section 30,

Article 16 of the constitution. City of Tampa v. Tampa Water Works Co., 45 Fla. 600, 34 South. Rep. 631.

The provision for reservoirs, pipes., mains, &c., of specified dimensions clearly has reference tó the necessities of the city when the contract was made, and such provision is to be taken in connection with other provisions, 'and with the declared purpose of the contract ’“to obtain for the use of the inhabitants of said city an •abundant supply of good water for all purposes.” The provisions ¡that the respondent should furnish “a first class fire protection” 'and that “as the city grows and * * * should desire new hydrants, the party of the second part should «treat them, .and the city shall pay for them” and to “extend ‘the water mains to any part of the said city, when ordered to do so ;” “that the main or pipe system shall be laid in such streets as ¿hall give the greatest amlount of fire protection and the distribution of an adequate amount of water to the consumers” and other provisions of the ordinance contract must be considered as having reference to the necessities of the future as to increased capacity, 'and to the governmental authority to regulate and control such matters as they affect the rights of ¡the public.

See section, 8 of

Article 8 'and

section 30 of

Article 16 of the constitution, and

section 30, page 234 MIcGlellan’s Digest. See also Meridian Water Works Co. v. Meridian, 85 Miss. 515, 37 South. Rep. 927. The time covered by the exemption from taxation has long since passed.

The ordinance provides that “there shall be annually levied and collected on all real -estate and personal property within the corporate limits of" the city of Tampa :a tax of five mills, which shall be applied to- the payment of the obligations incurred herein and for no other purpose-.” This is not ¡an 'appropriation of the total amount of the contract obligation, nor is it a levy of taves for each and every year during the continuance of the contract; but it is an undertaking on the part of the oity as stated in the contract that it will annually levy a tax sufficient to meet the contract obligations.

Of course the amount of the annual levy is limited to the sum required to meet the contract obligation within the maximum of five mils, and it) is admitted that only the necessary levy is made, being much less, than 'the maximum. And the ordinance contract contemplates an annual levy to be made in a lawful manner and for a proper amount. The provision as to division of fines imposed by the city can not be enforced, but 'it does not destroy the contract. The provision of the ordinance for guaranteeing the interest on the bonds of the respondent .as such may be Void, but it does, molt destroy the entire contract.

The amount guaranteed is stated in the ordinance to be the same amount the city agreed to pay for the water furnished, and its payment by the city would by the terms of -the ordinance discharge the obligation of the oity to pay the ‘amount for water. The provision as to stock subscriptions contained in the ordinance may be disregarded here.

The ordinance contract provides, for service covering a period of thirty years, and some of the provisions of the. contract as made would perhaps be considered an unreasonable restriction of the necessities and rights of the public in a growing city with reference to rhe future, but as the provisions are subject to' the right of the legislature to regulate the rendering- of the public service to the end that an adequate service be secured for only a reasonable compensation, the supposed unreasonableness of the provisions of the ordinance as to' matters affecting the public service need not be so critically examined.

As new conditions arise the law which is a part of the contract will so operate upon the contract and the service rendered under it as that the public may be fully protected 'in their rights. The circumstances, here do nlot render this contract unreasonable. Flynn v. Little Falls Electric & Water Co., 74 Minn. 180. 78 N. W. Rep. 106.

The ordinance contract contains provisions as to taxation, exclusive privileges, division of fines, exemption from taxation and other matters that are for the benefit of the respondent, but such benefits are either disclaimed or waived or not insisted on, or the time for performance has long since passed; and -such provisions do- not collectively or severally so- affect the contract or the franchise Conferred as to make the contract void or the franchise unauthorized, even if die provisions as to the other matters are illegal or unenforceable, since the improper provisions may be eliminated or disregarded and the remaining features of the ordinance contract are capable of standing and being- enforced by themsehes to accomplish the expressed purpose of the contract, vis: the securing- of an adequate supply of good water for all purposes.

If the express purpose of the contract can be accomplished' by its valid portions and the elimination, of the invalid 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 the elimination of the invalid portions would cause results not intended by the ordinance. The expressed purpose of the ordinance contract is to secure an adequate water supply for all purposes, and this can be accomplished without any of the illegal portions of the ordinance.

The elimination of the invalid portion's relieves the city and the 'respondent asks no benefit from them. In view of the expressed provisions and purpose of the contract and the right of the Sítate to regulate the service, 'the apparent inadequate provisions to meet the demands of a growing city are not in reality necessarily inadequate and do not render the contract void in toto. The contract was made for future service of a public nature and it should be regarded as designed to meet the demands of the future and its provisions fairly so construed.

Such appears to have been the course pursued by the city and the respondent. In view of the laws of the State for regulating the rendering of the public service and the expressed purpose of the contract it can not be said that the contract is illegal and void or that the provisions thereof are unreasonable and not enforceable within the limits placed thereon by the laws which became and remain a part of the contract.

As the city of Tampa had the power to grant the privileges or franchises 'and to malee the contract under which the privileges and franchises are being' -exercised, and the contract is valid for -the purposes of granting the -privileges arad franchises, questions of estoppel and ratification on the part of the city and other matters argued need not be considered. The demurrer to. the return is overruled with leave to plead within fifteen days. All concur, except Shackleford, C. J., disqualified.