Jacksonville Electric Light Co. v. City of Jacksonville

Mabry, C. J.: The motion made by appellant in this court involves its power to grant a temporary injunction pending an appeal in a case where such injunction had been refused by the Circuit Court. If this court had such power, it must be because of its authority to issue all writs necessary or proper to the complete exercise of the jurisdiction conferred on it by the Constitution in other matters than those in which it exercises original jurisdiction. The case of Cohen vs. L’Engle, 24 Fla. 542, 5 South. Rep. 255, does not expressly affirm the jurisdictional authority of this court to grant the injunction asked for, and we are without a direct adjudication on the point in this State. An examination of this question has led to an investigation of the entire case presented by the record, and as it has been argued by counsel, and we have reached a conclusion thereon, we have decided to dispose of the appeal on its Merits, without reference to the power of the court to grant a temporary injunction pending the appeal. The question presented on the merits is whether the city of Jacksonville has the power to erect and maintain an electric plant of sufficient power and capacity to light the streets and public places of the city, and at the same time supply from said plant the inhabitants thereof with electric lights for their private residences and business houses. The original bill alleged that the city, through its Board of Public Works, had failed to comply with the law regulating the letting-out of contraeos to the lowest bidder, in awarding the contract for the erection of the plant in question, but. — 263 — this is denied by the answer, and it is not contended here that appellant was entitled to an injunction on this ground. The supplemental bill would seem to go to the extent of alleging that the city had declared its purpose to engage in the manufacture and sale of electricity for commercial purposes without reference to its use by the inhabitants of the city, but there is nothing to show a purpose to dispose of electric lights to any other persons than the inhabitants of the city for use in their private residences and houses, and the question presented is as we have stated it. We have been unable to find any authorities bearing directly on the question involved in the merits of this case than those cited in the briefs of counsel, and the decisions cited speak of the paucity of adjudications on the point. The general rule stated by Judge Dillon (sec. 89, vol. 1 Municipal Corporations) is recognized as a correct summary of the decisions on the question. The author states the rule as follows: “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words-, second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers — 264 — granted are void. Much less can any power be exercised, or any act done, which is forbidden by charter or statute.” The same author says (sec. 91) that ‘‘the rule of strict construction of corporate powers is not so directly applicable to the ordinary clauses in the charter or incorporating acts of municipalities as it is to the charters of private corporations; but it is equally applicable to grants of powers to municipalities and public bodies which are out of the usual range, or which may result in public burdens, or which, in their exercise, touch the right to liberty or property, or as it may be compendiously expressed, any common-law right of the citizen or inhabitant.” While a strict construction should be applied to the grant of power, yet if a power is necessarily or .fairly implied in or incident to those clearly given, it is not to be impaired by a strict construction. Kyle vs. Halin, 8 Ind. 84. In speaking of the powers of municipal corporations, it is said in City of Bridgeport vs. Housatonic R. R. Co., 15 Conn. 475: “They may exercise all the powers within the fair intent and purpose of their creation which are reasonably proper to give effect to powers expressly granted. In doing this they must (unless restricted in this respect) have a choice of means adapted to ends, and are not to be confined to any one mode of operation.” In construing a charter giving to a city the right to pass ordinances for the prevention and suppression of fires, and to appoint and remove fire wardens, and to prescribe the powers and duties of such fire wardens and of fire engineers and firemen, and to raise money to support the fire •department, it was held that although no express grant of power was conferred to purchase engines and apparatus, yet such power was necessarily or fairly implied as incident to the power expressly given. — 265 — Green vs. City of Cape May, 41 N. J. L. 45. The charter of the city of Greenville, construed in the case of Mouldin vs. City Council of Greenville, 33 S. C. 1, 11 S. E. Rep. 434, provided that the council might purchase, hold, possess and enjoy any estate, real personal or mixed, and sell, lease, alien and convey the same, provided that it did not exceed ■ at any time $100,000, and also to make and establish all such rules, by-laws and ordinances respecting roads, streets, markets and police department of the city, and the government of the city, as should appear necessary and requisite for the security, welfare and convenience of the city for preserving health, life and property, and securing the peace and good government of the same. The further power was given to levy taxes sufficient to discharge and defray all expenses of carrying into effect the ordinances, rules and regulations established as provided, with the limitation that the tax should not exceed seventy-five cents upon every one hundred dollars of real and personal property assessed. The city was also authorized to borrow money for the public use of the corporation by issuing bonds bearing a certain rate of interest, and not to exceed $100,000. It was held that the city had the express power to purchase, and the implied power to operate an electric light plant, so far as it is used for lighting the streets and public buildings of the city, but so far as it was used for furnishing light to private residences and places of business at a compensation, it was not for the public use of the corporation, and therefore its purchase and maintenance to that extent were ultra vires. Aside from the express power to buy and hold property the city had only the powers granted by what is usually called the “general welfare clause” in municipal charters. After referring to the — 266 — rule announced by Judge Dillon, given above, the court say: “Now, tested by this principle, so clearly stated, how does the matter stand? Clearly the charter does not give the power to purchase this plant in express words. It does not so give even the power to light the city, but we assume that this latter power may be fairly implied from the grant of the police power.” Under a statute giving cities power to establish and maintain electric light plants, or to authorize the erection of the same, upon a majority vote of the city, and to issue bonds for the purpose of establishing electric plants, the total amount not to exceed five per cent, of the assessed taxable property within the city, Judge Shiras held that the city had the power to erect an electric plant for the purpose of furnishing light to its inhabitants in their stores and houses, as well as for lighting the streets and public places of the city. He says that it had been “the uniform rule that a city, in erecting gas works or water works, is not limited to furnishing gas or water for use only upon the streets and other public places of the city, but may furnish the same for private use; and the statutes of Iowa now place electric light plants in the same category.” Thompson-Houston Electric Light Co. vs. City of Newton, 42 Fed. Rep. 723; S. C. 3 American Electrical Cases, 507. An Indiana statute conferred upon municipalities the power “to light the streets, alleys and other public places” of cities and towns with electric light or other form of light, and to contract with any individual or corporation for lighting such streets, alleys and public places with electric light or other form of light, on such terms and for such times, not exceeding ten years, as might be agreed upon. Other provisions in the act authorized the granting to any person or corporation the right to — 267 — erect and maintain the necessary fixtures for supplying electric light to the inhabitants of the municipality, but it was conceded by the court, in the case of City of Crawfordville vs. Braden, 130 Ind. 149, 28 N. E. Rep. 849, that no provision was made in terms for the municipality to supply electric light to its inhabitants. It would seem from the terms of the act in conferring power upon the municipality to light the “streets, alleys and other public places,” that it was the purpose of the legislature to confine the corporation to such use in supplying electric light, but the court held that the corporation had the right to furnish the inhabitants light for their private residences and business houses, as well as lighting the streets and public places of the city. It appears that this right is based, in the case cited, upon the general police power of the city. The charter of the city of Nashville conferred the power “to provide the city with water by water works, within or beyond the boundaries of .the city, and to provide for the prevention and extinguishment of fires, and organize and establish fire companies.” The right of the city to establish water works, and in addition to making provision for the extinguishment of fires, to furnish water to the inhabitants, was affirmed in the case of Smith vs. City of Nashville, 88 Tenn. (4 Pickle) 464, 12 S. W. Rep. 924. The act passed on in the case of Linn vs. Chamberburg Borough, 160 Penn. St. 511, 28 Atl. Rep. 842, expressly authorized any incorporated borough to manufacture electricity for commercial purposes for the use of the inhabitants of said borough, and the constitutional power of the legislature to confer such right w-as recognized. The court said: “In view of the fact that electricity is so rapidly coming-into general use for illuminating streets, public and — 268 — private buildings, dwellings, etc., why should there be any doubt as to the power to authorize such corporations to manufacture and supply it in like manner as artificial gas has been manufactured and supplied?” A statute in Kansas gave to cities of the second class authority to provide for and regulate the lighting of the streets, and to make contracts with any person, ■company or association for such purpose. The city of Hiawatha entered into a contract with the General Electric Company to construct a plant to be used by the city exclusively for the purpose of lighting the public streets, without any intention to furnish lights to private citizens or to use of the same for any private purpose. The court held that the city had the right to construct the plant. State vs city of Hiawatha, 53 Kansas, 477, 36 Pac. Rep. 1119. The right to furnish to individuals for use in their private houses was not involved or considered. It was enacted in Ohio that “the council of any city or village shall have power, whenever it may be deemed expedient and for the public good, to erect gas works at the expense of the •corporation, or to purchase any gas works already erected therein.” Former statutes gave municipalities the right to contract with gas companies to supply ■cities with gas, and the right of a city to erect gas works therein without any avowal of the purpose for which they were erected, although a contract had formerly been made with a gas company to supply gas, was affirmed in the case of State ex rel. vs. City of Hamilton, 47 Ohio St. 89, 25 N. E. Rep. 935. The power of the Legislature to authorize incorporated cities and towns to erect and maintain electric plants to light the streets and other public places of the municipality, as well as ■supply light to private individuals, is expressly stated in Linn vs. Chambersburg Borough, supra, and the — 269 — opinion of the Justices, 150 Mass. 593, 24 N. E. Rep. 1084. The authority of the city of Jacksonville to erect the-electric plant in question, and in addition to lighting the streets and public places therein, to supply the inhabitants light for their private residences and houses, must depend upon the charter act of 1887, Chapter 3775. The act of 1893 (Chapter 4239) gave the right to the city to issue bonds under conditions therein stated to refund the bonded indebtedness of the city, and for such other municipal purposes as might be provided by ordinance in submitting the question of the issuance of the bonds to a vote of the people. The issue of $75,000 of bonds for the erection of an electric plant having been carried, the city undertook the construction of the plant. Unless the erection of the plant was a municipal purpose within the meaning of the charter powers of the city, it could not be created at public expense. The act of 1887 provides that the city “may purchase, lease, receive and hold property, real and personal, within said city; and may sell, lease or otherwise dispose of the same for the benefit of the city; and may purchase, lease, receive and hold property, real and personal, beyond the limits of the city, to be used for the burial of the dead; for the erection of water works; for the establishment of poor houses, pest houses, houses of detention and correction; for public parks and promenades, and for any other public purpose that the Mayor and City Council may deem necessary or proper; and may sell, lease or otherwise dispose of such property for the benefit of the city to the' same extent as natural persons may.” Among the lowers conferred upon the City council are the following: ‘ ‘To make regulations to secure the general health of the inhabitants and to prevent and remove nui — 270 — sanees; to provide the city with water works within or beyond the boundaries of the city; to provide for the prevention and extinguishment of fires and to organize and establish a fire department; to provide for lighting the city by gas or other illuminating material, or in any other manner; * * to make appropriations for lighting the streets and public buildings, and for the erection of all buildings necessary for the use of the city; * * to pass all ordinances necessary for the health, convenience and safety of the citizens, and to carry out the full intent and meaning of this act, and to accomplish the object of this incorporation.” Among the limitations upon the City Council are the following: “The Mayor and City Council are forbidden to make any appropriations of money or credit in the way o'f donation, festivities, pageants, excursions or parades, nor shall they be authorized to subscribe for stock in any railroad company or in any other corporation, or give or lend any money, aid or credit to any person or corporation whatever, and they are hereby prohibited from employing or appropriating the revenues and taxes in any other manner than for purposes strictly municipal and local and according to the provisions of this act.” Under the provisions regulating the duties of the Board of Public Works, that body is given exclusive control over the lighting of all such public places as may be deemed necessary, and “shall have exclusive power to organize and control the fire department, the water works and its appurtenances, the gas and other illuminating works of the city, and its jails and houses of correction and detention.” There can be no doubt about the power of the city of Jacksonville to erect and maintain at public cost an electric plant of sufficient power and capacity to light — 271 — the streets and public places in the corporation. Counsel for appellant do not insist here that the city does not possess such power, but the contention is, that no power exists to erect and maintain such plant for the additional purpose of supplying the inhabitants of the' city with electric light for use in their private residences and houses. Under a strict construction, as applied in the South Carolina decision, the city would have the power, even under the general welfare clause, to erect and maintain an electric plant to supply light for the streets and public places of the city. The grant of power to the city of Jacksonville to provide for lighting the city by gas or other illuminating material, or in any other manner, is clear and explicit, and this carries with it the power of choice of means to accomplish the end. Should this power be construed into a right to light the streets and public places of the city, but not to supply the inhabitants thereof with light for use in their private houses? The power of lighting the city is given in connection with the powers of providing the city with water and the establishment of fire departments for the prevention and ex-tinguishment of fire. The Tennessee court construed a clause in the charter of the city of Nashville, similar to the one in the Jacksonville charter into a power to supply water not only for the public use of the city, but for private use by the inhabitants. The statute in Iowa simply gave the power to cities to erect electric plants without designating the purposes for which light might be generated, and it was held that it could be furnished by the city to its inhabitants for private use in their residences. The Indiana decision clearly sustains the power claimed by the city of Jacksonville in this case; and if the South Carolina case can be considered the other way, the preponderance of ad — 272 — judication seems to be in favor of sustaining the power claimed in the case before us. The South Carolina court did not have before it a statute like ours, and we are of the opinion that a fair construction of the grant ‘‘to provide for lighting the city by gas or other illuminating material, or in any other manner,” will authorize the erection and maintenance of an electric plant not only for lighting the streets and public places of the city, but also for supplying, in connection therewith, electric light for the inhabitants of the city in their private houses. The power given is to light the city, and the connection indicates that the Legislature was conferring powers for the benefit of the people generally of the city. The restrictions contained in the fifth section prohibiting the appropriation of the revenues of the city in any other manner than for purposes strictly municipal and local and according to the provisions of the act, do not curtail the right, if given in the grant of the power mentioned. Express authority is given to appropriate revenue to accomplish the purposes of the act. The city of Jacksonville is a municipal body, and, of course, all the powers conferred upon it should be construed with a view of carrying out its creation as a public agency of the State. Wone of its grants should be held to confer powers disconnected with municipal purposes. That the supplying the inhabitants of a city with electric light is such a municipal purpose as will authorize its delegation by the Legislature to municipal bodies is sustained by all the authorities we have found. To the extent of supplying light to the inhabitants of a city for use in their private houses, we discover nothing that can not, in the light of the decisions, be called a municipal purpose, and — 273 — beyond this we are not called upon to go, and do not go in this decision. It is not insisted here that the dismissal of the bills, independent of the refusal to grant the injunction prayed for, was error. No other relief was asked for except the injunctions. Our conclusion is, that the decrees appealed from should be affirmed, and it will¿be so ordered.