Volume 86 — Florida Reports

<p>A Writ of Error to the Circuit Court for Hardee ■County; George W. Whitehurst, Judge.</p>

<p>1. An indictment of a county officer for malpractice in office not otherwise especially provided for under the provisions of Section 5354 Revised Statutes need not allege criminal intent nor that the act constituting the malpractice was done wilfully, corruptly or in bad faith.</p> <p>2. Section 5354 Revised General Statutes denounces two offenses, one wilful extortion in the charge of fees or commissions by an officer of the State and the other any malpractice in office not otherwise especially provided for. A criminal intention is not a necessary element in the latter statutory offense.</p> <p>3. A motion to quash an indictment containing two or more counts will be overruled if any one of the counts is good.</p>

<p>1. The rule is that trial courts have a broad discretion in granting or denying applications for continuance of causes, and that their exercise of discretion will not be reversed by an Appellate Court unless it be clearly shown that there has been a palpable abuse of such discretion to the manifest injury of the party against whom it has been exercised. The rule further requires that applications for continuance in criminal cases shall be more closely and rigidly scanned than in civil causes because of the greater temptation in a criminal case to seek delay.</p> <p>2. Generally, a continuance will not be granted in a criminal case on account of the absence of a witness as to the good character of the accused.</p> <p>3. It is not reversible error for a trial court to deny an application for continuance because of the absence of witnesses and inability to obtain their depositions in time for trial during the term," based upon an affidavit of the accused from which it appears that his information with respect to such witnesses and evidence was obtained from a third party who was present at the court but from whom no affidavit in corroboration was offered, and when it further appears that such alleged evidence is either as to the good character of the accused 'or is negative in character and, if obtained and offered, would not be likely to affect the result.</p> <p>4. Where the evidence is ample to sustain the verdict and there is nothing in the record to indicate that the jury were influenced by anything other than a due consideration of the evidence, a judgment of conviction will not be reversed, although there may have been technical errors of procedure in the trial of the case.</p>

<p>An Appe^J. from the Circuit Court for Palm Beach County; E. C. Davis, Judge.</p>

<p>This case was decided by Division B.</p> <p>A Writ of Error to the Circuit Court for Duval County; George Couper Gibbs, Judge. .</p>

<p>1. In all except capital cases where the proof is evident or the presumption great, the admission to hail is a right which the accused can claim before conviction and which no court or judge can properly deny.</p> <p>2. If one who is duly charged with a crime is denied the right to bail when the offense charged is not a capital offense, or when the charge is of capital offense and the proof is not evident or the presumption is not great of the guilt of the • accused of the capital offense charged, such denial of the right to bail is a deprivation of liberty without due process of law in violation of the Constitution as well as a denial of the organic right to bail in all cases except for capital offenses where the proof is evident or the presumptpion great.</p> <p>3. The use of the writ of habeas corpus to speedily determine whether a person charged with an offense is entitled to bail before trial and conviction; is authorized by law so as to render effective the rights to bail and to liberty as provided by the Constitution.</p> <p>4. Even if there are circumstances under which the right to bail if otherwise bailable cases may be forfeited, this is not a case in which the facts warrant resort to that principle.</p> <p>5. The term “conviction,” after which the allowance of bail rests in the judicial discretion of the trial court, comprehends an adjudication of guilt by the Court and not merely a verdict of a jury.</p>

<p>A Writ of Error to the Circuit Court for Dade County; E. C. Davis, Judge.</p>

<p>A Writ of Error to the Circuit Court for Bay County; D. J. Jones, Judge.</p>

<p>A Writ of Error to the Circuit Court for Hillsborough County; F. M. Robles, Judge.</p>

<p>A Writ of Error to the Circuit Court for Orange County; C. O. Andrews, Judge.</p>

<p>This case was decided by Division B.</p> <p>A Writ of Error to the Circuit Court for Dade County ; H. Pierre Braiming, Judge.</p>

<p>This case was decided by Division B.</p> <p>An Appeal from a Decree of the Circuit Court within and for the County of Polk; John S. Edwards, Judge.</p>

<p>This case was decided by Division B.</p> <p>An Appeal from a Decree of the Circuit Court within and for the County of Dade; PI. Pierre Branning, Judge.</p>

<p>This case was decided by Division B.</p> <p>A Writ of Error to the Circuit Court for Marion County; W. S. Bullock, Judge.</p>

<p>This case was decided by Division B.</p> <p>A Writ of Error to the Circuit Court for Dade County; H. Pierre Branning, Judge.</p>

<p>This case was decided by Division B.</p> <p>An Appeal from the Circuit Court for Orange County; C. O. Andrews, Judge.</p>

<p>This case was decided by Division B.</p> <p>An Appeal from the Circuit Court for Madison County; M. F. Horne, Judge.</p>

<p>1. Under the provisions of Section 8, Article VIII, of the State Constitution, that “The legislature shall have power to establish and to abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time,” the legislature may by law authorize a municipality to make a contract for rates to be charged for public service rendered to the municipality or its inhabitants, and such a contract when duly authorized and entered into will be binding on the parties thereto, but the contract will be subject to the power of the legislature under Section 30, Article XVI of the Constitution, to. pass laws providing for regulating rates for “services of a public nature.”</p> <p>2. The Constitution of Florida contains no express provision forbidding the police power of the State to be abridged by irrevocable contract or otherwise.</p> <p>3. The City of Palatka has not been authorized by statute to regulate rates for electricity furnished by a public utility company to the city and its inhabitants.</p> <p>4. Contracts must be understood as made in reference to the possible exercise of the rightful authority of the government, and no obligation of a contract can extend to defeat the legitimate government authority.</p> <p>5. There is no absolute freedom to do as one wills or to contract as one chooses. . The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.</p> <p>6. The duty of an owner of private property used for the public service to charge only a reasonable rate and thus respect the authority of government to regulate in the public interest, and of government to regulate by fixing such a reasonable rate as will safeguard the rights of private ownership, are interdependent and reciprocal. Where, however, the right to contract exists and the parties, the public on the one hand and the private on the other, do so contract, the law of the contract governs both the duty of the private owner and the governmental power to regulate.</p> <p>7. Municipal contracts for the rendering of public service will be sustained where the power is given to make the contract, and the terms of it taken with the law controlling them are not clearly violative of some provision or principle of law.</p> <p>8. Although the governmental agencies having authority to deal with the subject may fix and enforce reasonable rates to be paid public utility corporations for the services by them rendered, that power does not include the right to fix rates which are so low as to be confiscatory of the property of such corporation.</p> <p>9. Where public service corporations and the .governmental agencies dealing with them have power to contract as to rates, and exert that power by fixing by contract rates to govern during a particular time, the enforcement of such rates is controlled by the obligation resulting from the contract, and therefore the question of whether such rates are confiscatory becomes immaterial.</p> <p>10. While Section S, Article VIII of the Constitution expressly authorizes the Legislature to prescribe the jurisdiction and powers of municipalities, yet any authority given a city by the Legislature to make contracts for public service rates is subject to the organic provision that “the Legislature is invested with full power to pass laws for the correction of abuses and to prevent unjust discrimination and excessive charges by persons and corporations engaged as common carriers in transporting persons and property, or performing other services of a public nature.”</p> <p>11. There is in this State no provision of controlling law, expressly forbidding irrevocable contracts or other abridgments of the police power, as is prescribed in the States of Iowa, Texas, Louisiana and other States.</p> <p>32. Section 30, Article XVI of the State Constitution, does not forbid the Legislature to authorize the cities of the State to enter into term contracts for service rates with public utility corporations; but the quoted organic provision merely makes such contracts that are otherwise valid and binding, subject to the “full power” of the Legislature to provide for fixing just and reasonable rates in the premises.</p> <p>' 13. Powers that are indispensable to the declared objects and purposes of a municipality may be inferred or implied from powers expressly given that are fairly subject to such construction. The difficulty of making specific enumeration of all such powers as the Legislature may intend to delegate to municipal corporations renders it necessary to confer some power in general terms. The general powers given are intended to confer other powers than those specifically enumerated.</p> <p>14. The general charter powers of a municipality usually relate .to governmental functions as distinguished from business powers; and such general .powers are designed to- confer authority that is not expressly or specifically conferred and is essential or expedient to accomplish the purposes for which the municipality is organized.</p> <p>15. Where the exercise of particular governmental powers may be fairly included in and authorized by general powers conferred upon municipalities, the rule expressio unius est ex-elusio alterius is not generally applied to specific powers conferred to exclude powers that serve the purposes for which municipalities are organized, where such powers are not inconsistent with other powers conferred or with limitations imposed by the charter or by statute upon the municipal powers.</p> <p>16. When a municipality undertakes to exercise powers of a business nature as distinguished from governmental functions, the authority for such exercise should clearly appear by express provisions or by reasonably certain implication from other powers conferred, and should be in entire consonance-with the purposes for which the municipality was created. In determining -whether a particular lousiness power may be-implied from express powers conferred, the rule expressio. unius est exolusio alterius, as -other rules of interpretation, may in proper cases be applied to effectuate the legislative intent in conferring municipal powers.</p> <p>17. Ordinance contracts for supplying the city and its inhabitants with lights, is a usual and necessary function of a municipality, and authority to make such contracts may be included in powers given in general terms, where such power is not in conflict with specific powers conferred.</p> <p>18. The City of Palatka has statutory powers to pass ordinances that may be necessary and expedient for the good government of the city * to regulate, alter and improve and extend the streets of the city * to do and perform all such other act or acts as shall seem necessary and best adapted To-the general interests of the city * and to provide for the: lighting of streets of the city. These general statutory powers are sufficient to confer upon the city authority to make a franchise contract with provisions as to rates to be charged individuals for electric lights; such contract is consistent with the express power “to provide for the lighting of streets of the city,” and is not repugnant to or inconsistent with any specific or general statutory power of the city.</p> <p>19. There being a contract fixing rates for electricity to be furnished by the utility company to the inhabitants of the City of Palatka, and the Legislature not having authorized the city or any other governing body to regulate such rates, the question as to whether the contract rates are remunerative, is immaterial, and the contract controls until the Legislature does act in the premises.</p>

<p>Where an appeal is duly taken from an order denying a temporary restraining order to prevent the destruction of bearing citrus trees for the purpose of constructing a public highway and it is duly made to appear to the Supreme Court that the growing citrus trees are of such a nature and peculiar value that in order to preserve the essential nature, value and usefulness of the land, until the merits of the appeal can be adjudicated, the trees should not be destroyed or removed, this court by virtue of the .power conferred by Section 5 of Article Y of the State Constitution to issue “all writs necessary or proper to the complete exercise of its jurisdiction,” may grant an appropriate restraining order to preserve the corpus of the property pending the determination of the appeal.</p>