Opinion
April 29, 1959.
Appeal from the Circuit Court for Palm Beach County, Culver Smith, J.
William E. Martin, Lake Worth, and Phillips Hathaway, West Palm Beach, for appellant.
Phil O'Connell, West Palm Beach, for the State.
McCoy Love and Claude L. McCoy, Lake Worth, for the Intervening Property Owners, Taxpayers and Citizens, appellees.
Under the provisions of Sec. 8, Art. VIII, of the Constitution of Florida, F.S.A., the legislature has the power to establish municipalities and prescribe their powers. This plenary power is subject only to restrictions specified in the Constitution. Town of Palm Beach v. Vlahos, 153 Fla. 781, 15 So.2d 839.
When the legislature created the City of Lake Worth by the enactment of Chapter 25962, Laws of Florida, Special Acts of 1949, the city was empowered in that charter to construct and operate utility plants for the distribution of water and electricity to its inhabitants, impliedly, and to make necessary extensions of the systems.
Inasmuch as the preliminary steps taken by the city commission up to the time of the passage of the ordinance authorizing the proposed improvement of the water and electric systems and providing for the payment of the cost from revenue are not challenged, we will confine our discussion to events occurring afterward.
This litigation had its inception when suit was filed seeking a decree validating the revenue certificates. The state attorney and certain intervenors opposed the effort to secure confirmation of the certificates and after full hearing the circuit judge ruled in their favor by dismissing the city's petition. In the decree the judge observed that the power of the city to make the improvements was not in doubt, and that is conceded here. The "sole question," he commented, for determination in this litigation was whether or not the ordinance providing for the issue of the certificates was dependent for validity upon compliance with specific provisions of the charter pertaining to referendums, and this is the pivotal point presented to us in the arguments and briefs of counsel.
We must decide then whether or not the ordinance, though justified by charter provisions and enacted to accomplish a lawful purpose, was, nonetheless, ineffectual for the reason that the plan was not submitted to the electorate and approved by them at the polls.
This brings us to a consideration of Sec. 6 of Chapter 25962, supra, which contains the provisions for referendums. There it is found that the people of Lake Worth were granted the prerogative of accepting or rejecting at the polls any measure passed by the city commission. It is specified in the charter that such an election may be effectuated by filing within 10 days after passage of the "measure," a petition signed by 10 per cent of the registered voters requesting that such an election be held.
The approach to the basic problem involved is further simplified by the stipulation of counsel for the parties litigant that all prerequisites to a referendum with reference to an election were fulfilled.
The election was not held because, says the appellant, the ordinance under consideration was not the sort of "measure" it was intended could be required to be submitted to the voters inasmuch as it was "administrative," in contradistinction to "legislative," in character.
It is insisted on behalf of appellant that the decision of the circuit judge should be reversed on authority of our opinion in State v. City of St. Petersburg, Fla., 61 So.2d 416, in which it was held, so appellant contends, that charter requirements for referendums in respect of ordinances do not apply to actions of a city commission relating "solely to the business management and regulation of revenue derived from a municipally owned utility," to quote from appellant's brief.
We go willingly with appellant to the case for the rule but we come away with the conclusion that dissimilarity between the factual situation with which the court then dealt and the one with which the court now deals precludes our accepting the case as support for a decision in appellant's favor.
The court said in that case that passage of an ordinance simply regulating charges for sewage disposal was the exercise of an executive or administrative function which the city could not be required to submit in a referendum election.
The rule then announced, by which the facts were gauged, was that measures relating to subjects "of permanent and general character are * * * legislative" [61 So.2d 419] while those affecting matters "of temporary and special character" are administrative. In the former an election may be required; in the latter not.
We see a vast difference between an ordinance dealing with service charges, which from their very nature may fluctuate frequently according to the needs of the city and the demands of the citizens, and an ordinance by which the city will make an extensive improvement of its utility plant and incur an indebtedness of $2,100,000 to be amortized over a period of 29 years.
The range and nature of the investment, and the size and duration of the debt, in our opinion, stamp the object of the ordinance as permanent, even though not eternal, and not one that could be categorized as special, temporary or impermanent. We conclude that the undertaking is much more accurately described by the adjectives "general" and "permanent" than by the antonyms "special" and "temporary."
So we adhere to the pronouncement in State v. City of St. Petersburg, supra, and decline to disturb the ruling of the circuit judge.
Affirmed.
TERRELL, C.J., and HOBSON and ROBERTS, JJ., concur.
DREW and THORNAL, JJ., dissent.
O'CONNELL, J., not participating.
Upon close analysis, the distinctions made between the case at bar and the earlier decision in State v. City of St. Petersburg, are, in my opinion, without merit.
Fla. 1952, 61 So.2d 416.
That decision dealt with municipal action very similar to that involved in the case at bar, authorizing utility improvements or extensions and providing for issuance and payment of revenue certificates to finance same. The rule approved, for determining whether municipal ordinances are of such character as to require submission to the electorate by referendum under charter provisions for this procedure, was of considerable breadth, but the pivotal point appears to be contained in the following statement:
Ibid, at page 419, quoting from McQuillin's Municipal Corporations, Vol. 5, 3rd ed., Sec. 16.55.
"An ordinance which shows an intent to form a permanent rule of government is one of permanent operation within requirement that measure must be of permanent operation in order to be submitted to electors under initiative and referendum statute [e.s.]" [61 So.2d 419]
Thus, while the transient effect of an enactment would be a material element in determining whether it is referable and consequently amendable only by like process, the real emphasis should be placed upon the nature of the object sought to be accomplished by a particular ordinance, rather than its mere duration. The definitive phrase "rule of government" may, of course, encompass a wide variety of action, the extent of which need not now be fully explored. There is substantial agreement upon the principle which, I believe, disposes of this case: An act of a municipality designed to carry out a plan already adopted in performance of a proprietary function specifically devolved upon it by statutory or charter provisions, not involving the initiation of any rule of conduct, is in a true sense administrative or executive action.
Chapter 25962, Laws of Florida, Special Acts of 1949, under which the City may purchase, hire, construct, own, maintain, and operate public utilities. Section 3(40) directly authorizes the borrowing of money for any of these purposes, limited only by a provision, in effect, that funds pledged should not be such as to require referendum under Article IX, Fla. Const.
Annotation, 122 A.L.R. 769.
The majority opinion seems to reach the conclusion that "the range and nature of the investment and the size and duration of the debt" afford the basis for determination that the subject ordinance is one within the scope of the referendum provisions of the charter. This seems to me to be illogical reasoning. What we are concerned with here is a principle of law and it seems to me that whether the amount involved is one or several million dollars the same principle would govern. The fact that the instrument which authorizes this debt and provides for its liquidation is denominated an ordinance makes no difference whatever. It could just as well have been called a resolution or the debt could have been authorized and its liquidation provided for by a simple motion duly incorporated in the minutes of the council meeting. The form in which the action of the council was evidenced does not change its character. It is a mere means of evidencing the action of the official body authorizing the debt.
62 C.J.S. Municipal Corporations § 449.
I can see no difference whatever in the principle involved in this case and that which would have been created by a motion duly made and carried authorizing a duly constituted official of the municipality to borrow a given sum of money for the purpose of paying for the fuel necessary to operate the power plant or to repair any of its facilities. Both are administrative actions necessary to carry out the duties and responsibilities of furnishing the citizens of the municipality light and water placed on the shoulders of the commission by the mandates of the city charter. It is inconceivable that any city could successfully operate or that the governing body could properly discharge its proprietary functions if ten percent of the electors of the city could stop in the tracks the performance of the administrative duties of the city commission under its charter. Such a principle engrafted upon the charter of this city could become an instrument of oppression and place in the hands of a small minority the power to curtail, if not completely destroy the orderly functioning of the corporate or administrative end of government. Such was never intended by a referendum clause in a city charter and, while I do not question the proposition that the Legislature might lawfully place in a city charter such a requirement, it is doubtful in my mind that they would do so. Historically, as we have pointed out, initiative and referendum have related to legislative and governmental action and not executive or administrative action and this Court has, at least until this case, not departed from that principle.
The fact that indebtedness of a certain character cannot under our Constitution be incurred by governmental bodies without referendum does not alter the essential nature of such financial activity as part of the administration of a municipal business. The apparent tendency in other jurisdictions to provide specifically for referendum on issues of certificates of indebtedness by municipalities may account for the absence of decisions construing general referendum provisions with reference to such activity. But where, as in the instant case, our constitutional inhibitions do not apply, where there exists no blanket provision for referendum upon municipal indebtedness generally, represented by revenue certificates in the form here involved, and the municipal action is clearly within the scope and mandates of the charter and prior duly enacted ordinances initiating the operation of water and electrical systems, then I believe the rationale by which the referendum process is normally limited has full application: "The reason for this rule is that to allow a referendum to be invoked to annul or delay executive conduct would destroy the efficiency necessary to successful administration of the business affairs of a municipality."
Article IX, Section 6, Florida Constitution.
State v. City of Miami, 113 Fla. 280, 152 So. 6.
37 Am.Jur., Munic.Corp., Sec. 209.
The decree should, in my opinion, be reversed.
THORNAL, J., concurs.