City of St. Petersburg v. Pinellas County Power Co. , 87 Fla. 315 ( 1924 )

West, J.

The object of this suit is a temporary re-, straining order and a permanent injunction against tbe. city of St. Petersburg from selling electric current to private parties', persons, firms or corporations within or without the limits of the city, for any purpose, and from using electric current generated by its municipal plant which would constitute a violation of rights of complainant, as evidenced by its franchise from the city of St. Petersburg or as given to complainant by the constitution and laws of the United States or the constitution and laws of the State of Florida.

There was a temporary restraining order. A motion to dissolve the injunction was made and denied. An answer was filed, after which the motion to dissolve was renewed and again denied.

■ In the brief of counsel for appellants it is stated that the answer admits practically all the statements of fact contained in the bill, but denies the legal conclusion drawn from such facts.

The question is whether the city of St. Petersburg may construct and operate a plant for the purpose of generating electric current for general use by the city and its inhabitants without first having complied with the provisions of Chapter 4600, Acts of 1897 (Secs. 1925-1939, Rev. Stat.). In State v. Pinellas County Power Company, opinion filed on March 17, 1924, it was decided that the defendant, Pinellas County Power Company, has a valid franchise from the city to do so, and is operating a plant within the city in generating and distributing electric power for lighting purposes.

The pertinent provisions of Section 9, Chapter 4600 (Sec. 1933, Rev. Gen. Stat.), are as follows: “When any. city or town shall decide as hereinbefore provided, to establish a plant, and any person, firm or corporation shall at the time of the vote required for such decision be engaged in the business of making, generating or distributing gas or electricity for sale for lighting purposes in such city or town, such city or town shall, if such person, firm or corporation shall elect to sell and shall comply with the provisions of this chapter, purchase of such person, firm or corporation before establishing a public plant, such portion of his, their or its gas or electric plant, and property suitable and used for such business in connection therewith, as lies within the limits of such city or town.”

The contention of the city of St. Petersburg is that having been granted by section 2, sub-division (d) of its charter act, Chapter 6772, Acts of 1913, “power within and without its territorial limits to construct, condemn, purchase, acquire, lease'or to maintain, conduct and operate * * * light plants * * * power plants * * * and to make a contract of whatever nature in connection therewith,” and by section 24 power “to provide for the establishment of waterworks, electric and other lighting plants, and all other plants necessary for the city,” it is removed from ' the operative sphere of the provisions of Chapter 4600 and is authorized, without complying with its requirements, to construct, maintain and operate a plant for the purpose generally of generating and distributing electric power for its own purposes and for sale and general distribution.

It was held in State v. Pinellas County Power Co., supra, that the city of St. Petersburg, prior to the adoption of the special charter act referred to, had the power to grant to the power company the franchise under whch it is operating. The special charter act, therefore, in this respect granted to the city no more power than- it possessed before this enactment.

It is admitted of course that Chapter 4600 is a part of the general law of the State. Whether the application of the provisions of this statute to the city of St. Peters-burg was superseded by the special charter act, as contended by appellants, is the question to be determined. It is familiar law that repeals by implication are disfavored, and in order to declare that one statute repeals another by implication, it must appear that there is positive repugnancy' between the two, or that the latter was. clearly intended to.prescribe the only rule which should govern the case to which it is applicable, or that it revises the subject-matter of the former. Sanders v. Howell, 73 Fla. 563, 74 South. Rep. 802; State v. County of Gadsden, 63 Fla. 620, 58 South. Rep. 232; F. E. C. Ry. Co. v. Hazel, 43 Fla. 263, 31 South. Rep. 272, 99 Am. St. Rep. 114. And “the legal presumption is that the legislature did not intend to keep really contradictory enactments in the statute book, or to’ effect so important a measure as the repeal of a law without expressing an intent to do so. An interpretation leading to such result should not be adopted unless it be inevitable. The rule of construction in such eases is that if the courts can by fair, strict or liberal construction find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation, it is their duty to do so.” State v. Johnson, 71 Fla. 363, 72 South. Rep. 477; Curry v. Lehman, 55 Fla. 847, 47 South. Rep. 18.

Furthermore, the legislature of this State is mand’atorily required to “establish a uniform system of county and municipal government,” which uniform system “shall be applicable, except in cases where local or special laws are provided by the legislature that may be inconsistent therewith.” Sec. 24, Art. III, Const. of Fla.

That a reasonable field for the operation of the special charter act and Chapter 4600 may be found and that the two statutes'may co-exist and harmonize with'consistent policy, seem to us to be the natural conclusion from an application of the foregoing rules of statutory construction. It is true, as pointed out by counsel for appellants, that the special charter act expressly repealed all laws .in conflict with its provisions. But if the power of the city in this respect was not enlarged, but only changed as to the medium conferring the power or as to its source, from a general to a special grant, the special charter act operated simply to preserve an existing status. And if the city’s power in this respect under the general law existed consistently with the provisions of Chapter 4600, the special charter act, which did not change the measure, of such power, would not necessarily, in the absence of an express provision to that effect, remove dr withdraw the city from the operative sphere of the .provisions of Chapter 4600, nor, unless there is inconsistency or conflict, would it be abrogated by the repealing clause of the special charter act. Legislative construction and'policy are indicated by charter acts, subsequent to Chapter 4600, wherein it is expressly enacted that the provisions of this chapter should not apply. Chap. 4875, Laws of 1899; Chap. 5859, Laws of 1907.

The contention that the application of the provisions of Chapter 4600 was superseded by the special charter act of the city of St. Petersburg is not sustained. The point decided is that the provisions of Chapter 4600 are, under existing charter powers, applicable to the city of St. Petersburg.

Affirmed..

Whitfield, P. J., and Terrell, J. concur. Taylor, C. J., and Ellis and Browne, J. J., concur in the opinion.