State v. City of Key West , 153 Fla. 226 ( 1943 )

I concur with Mr. Chief Justice BUFORD and Justices CHAPMAN,, THOMAS, ADAMS and SEBRING that Section 8 of the ordinance and the procedure proposed to be followed thereunder will make the city a stockholder in a corporation in violation of Section 10 of Article IX of the Constitution, which prohibits the Legislature from authorizing any county, city, borough, town or incorporated district to become a stockholder in any company, association or corporation. Under this provision of the Constitution, as I see it, the city cannot become a stockholder in the Key West Electric Company, even temporarily, pending the dissolution or liquidation of the company at the instance of the city. And the winding up of the corporation's affairs after dissolution might take considerable time. See Sec. 611.31-611.34, Fla. Stats. 1941. This provision of the ordinance violates the spirit and intent, as well as the letter, of the constitutional provision. Furthermore, it might be observed that the dissolution or liquidation of the company might be considerably prolonged for various reasons, among them being possible opposition and litigation on the part of minority stockholders.

Also, Section 8 of the ordinance embraces this language: "And the agreement or proposed contract, dated April 16, 1943, for such acquisition is hereby ratified and confirmed." That contract is not embraced in this record, nor does it appear to have been filed in the trial court.

While these proposed "bonds" are in effect revenue certificates, I am inclined to the view that the ordinance in question is contrary to the public policy of the State as evidenced by Section 6 of Article IX of the Constitution as amended, as well as by the general law of the State as set forth in Section 172.01-172.10 Florida Statutes 1941. These general statutes authorize a city to construct, purchase, lease or establish and maintain an electric plant, provided that such authority cannot be exercised unless a vote that it is expedient to exercise the same shall have passed the city's governing body by a two-thirds vote of its members, approved by the Mayor, and thereafter ratified by a majority of the voters thereon at an annual and special municipal election to be called and held for that purpose.

I am also of the opinion that the rights and powers delegated by the ordinance to the trustee and consulting engineer therein provided for, amount to an unconstitutional delegation of the discretionary powers and duties which are vested in the city council, at least unless some statute shall have been passed by the Legislature authorizing the city to delegate such powers. While this might be done under the provisions of our Constitution, it does not appear that any legislative action of this sort has been taken. In my opinion Sections 1 and 25 of the 1919 Charter Act and Sections 8 and 31 of the 1939 Charter Act do not grant this power of delegating by the city council of such authority as that above referred to.

In connection with the questions raised on this appeal, see Boykin v. Town of River Junction, 121 Fla. 902, 164 So. 558, Spearman Brewing Co. v. City of Pensacola, 136 Fla. 869,187 So. 365; Clover Leaf, Inc., v. City of Jacksonville, 145 Fla. 341,199 So. 923, and 37 Am. Jur., 662, 667-8, which I think support the views above expressed.

For these reasons, I concur in the conclusion that the decree appealed from should be reversed.

ON PETITION FOR REHEARING