State v. City of Tampa

The controlling question in this case, it seems to me, is whether the 177 qualified freeholder electors who entered the polls, went into the voting machine booths, where they had the full opportunity to vote, but went out without having voted, may be considered as having "participated" in the election within the meaning of Section 6 of Article IX of the Constitution.

This question is a close and difficult one, but, not being clearly convinced that the trial court was in error in its decision of this question, which is cogently supported by Mr. Justice CHAPMAN's opinion, I think we should resolve the doubt in favor of the trial court's decree to the effect that these 177 electors did as a matter of fact participate in the election, even though they did, in effect, cast blank ballots. There is no charge that any fraud or lack of bona fides was involved in any way.

I agree with Mr. Justice WHITFIELD and Mr. Justice THOMAS that an election was necessary to give validity to these proposed sewerage revenue certificates. I am inclined to the view that in constructing and operating a sewerage system the municipality is exerting its police or *Page 58

governmental powers as distinguished from its corporate or proprietary powers, and that whatever form of charge or rent which it may impose upon its citizens who connect their property with and receive the benefit of such system is but a form of taxation, and that the imposition and collection of such so-called service charges is an exercise of the taxing power which the citizen or property owner cannot avoid, because the making of such private connections with the sewerage system and the payment of such charges are made compulsory upon the citizen or property owner. He has no option to refuse or discontinue the service, such as he may exercise with regard to electric light, telephone and water service. But I realize that there are strong authorities to the contrary, which take the position that such sewerage charges are not taxes, but mere charges for service rendered.

Whether these compulsory features of the ordinances and the legislative act under which they were drawn could be enforced against possible objecting property owners in the area outside the City is a question which I do not think we are called upon to decide in this case. We are dealing here with the validity of certain proposed revenue certificates which constitute obligations of the City of Tampa alone. So I think the question of the power of the City to compel the making of sewer connections with its proposed extension of its system in territory out-side the City, and to enforce the payment of charges therefor, while it may be pertinent to the matter of the value in part of the security pledged for the payment of the certificates, does not vitally affect the validity of such certificates as obligations of the City of Tampa. It is therefore a mere collateral question in this case, and we have frequently held that in reviewing validation decrees this Court will not consider or decide mere collateral questions. The general question of *Page 59

the power of the legislature to authorize a municipality to extend its sewerage system to communities adjacent to, but outside, the municipal territorial limits, is not collateral here, because obligations of a municipality can only be made for a lawful municipal purpose. I think the legislature had the power to authorize municipalities to make such extensions. It may be essential to the health of a city to exercise such a power.

While this case presents several close and difficult questions, which have given great concern, I am not convinced, in spite of the very able argument of distinguished counsel for appellants, that the lower court's decree, holding the proposed certificates to be valid obligations of the City of Tampa was erroneous. I concur therefore with Mr. Justice CHAPMAN that the decree of the court below should be affirmed.