Opinion
June 2, 1950. Rehearing Denied June 28, 1950.
Appeal from the Circuit Court of Escambia County, L.L. Fabisinski, J.
F. Churchill Mellen, Pensacola, for appellant.
Grover C. Robinson, Jr., Pensacola, for appellee.
William Fisher, Pensacola, and Ralph A. Marsicano, Tampa, for amici curiae.
The City of Pensacola has appealed from an adverse decree rendered in a declaratory judgment suit brought by a taxpayer to determine whether the city may lawfully pledge revenues derived from a cigarette tax imposed pursuant to Chapter 26320, Laws of Florida, Extraordinary Session 1949, for the payment of revenue certificates to finance the construction of a recreational auditorium and pier within the city.
The decree appealed from found and decreed:
"(1) That the tax set forth and described and authorized under Chapter 26320, being Chapter 210, 1947 Cumulative Supplement, Florida Statutes of 1941, is a State Tax and not a Municipal Tax, and that, therefore, the City of Pensacola, a municipal corporation, cannot pledge the credit, income, revenue or tax belonging to the State of Florida, nor any portion thereof which the State of Florida might deliver unto the City of Pensacola under the provisions of said statute.
"(2) * * * that the construction of a Recreational Pier and auditorium of the type described in the testimony presented to this Court in the above cause, is not a proper State nor County function nor does the establishment, maintenance or operation of the same come within the purview of a proper State and County function, and that, therefore, no funds derived by the City of Pensacola, under the provisions of the said statute, may be spent for the purpose of constructing a Recreational Pier and Auditorium."
We find no error in the holding of the trial court that the construction of the pier and auditorium of the type described in the record is not a proper State or County function.
Section 210.03, Florida Statutes, 1941, F.S.A., as amended by Chapter 26320, Acts Extraordinary Session 1949, empowers any municipality in the State to impose an excise or privilege tax upon the sale, receipt, purchase, possession, consumption, handling, distribution, and use of cigarettes sold or to be sold at retail within the territorial limits of such municipality; but limits the use to be made of the funds realized from the tax as follows:
"(5) Any funds received under and by virtue of this chapter by municipalities shall be used and expended for the following purposes only, which said purposes are hereby found to be and are hereby designated as state functions and purposes within this state:
"For the future cost, purchase, building, designing, engineering, planning, repairing, reconditioning, altering, expanding, maintaining, servicing and otherwise operating any of the following:
"Streets, bridges, storm sewers, curbs, drains, gutters; water supplies, sanitary facilities and services for the preservation, protection or improvement of the public health and safety, including hospitals, fire stations and fire fighting equipment, sanitary sewers, sewerage disposal systems, sewerage disposal plants and facilities, garbage and refuse collection and disposal services, facilities and equipment, incinerators and other facilities and services, including street cleaning, inspections and services for the protection of public health including the enforcement of ordinances designed to maintain safe health standards with respect to foods, mosquito, insect and rodent eradication and control, and the removal and abatement of nuisances which may be or constitute dangers to public health and the exercise of controls for public safety, facilities for the prevention of beach erosion, the enforcement of the laws of the State of Florida, and municipal ordinances with respect to public travel, health and safety, and such other state functions which are performed by municipal governments within their boundaries, and are otherwise performed by the state and county governments outside of the limits of incorporated municipalities."
We cannot find within the provisions of this section any specific grant of power to the City of Pensacola to finance the construction of a recreational pier and auditorium from the cigarette taxes levied and collected by virtue of this statute, nor can the authority be implied from that portion of the statute which empowers a municipality to use the funds for "the enforcement of the laws of the State of Florida, and municipal ordinances with respect to public travel, health and safety, and such other state functions," for that general grant of power is plainly limited to such state functions as are generally performed by state and county governments outside the municipalities but which, under the particular circumstances, are being performed by any municipality within its borders. The construction and operation of a recreational pier and auditorium is not ordinarily understood to be a governmental function generally performed by either a state or county government outside the boundaries of a municipality; and, so far as we are advised, neither this nor any other statute of the state attempts to declare or recognize it to be such.
It is a well-established principle of law that where a legislature expressly confers upon a municipality certain specifically designated powers the specific designation thereof should be construed as a manifestation of legislative intent that all other powers not expressly delegated or necessarily implied as reasonably flowing from the powers specifically designated are to be excluded. See State ex rel. Ellis v. Tampa Water Works Co., 56 Fla. 858, 47 So. 358, 19 L.R.A., N.S., 183; Malone v. City of Quincy, 66 Fla. 52, 62 So. 922, Ann. Cas. 1916D, 208; Ex parte Davidson, 76 Fla. 272, 79 So. 727; State ex rel. Shad v. Fowler, 90 Fla. 155, 105 So. 733; Williams v. Town of Dunnellon, 125 Fla. 114, 169 So. 631; State ex rel. Greeson v. Roberts, 126 Fla. 114, 170 So. 457; City of Miami v. Kayfetz, 158 Fla. 758, 30 So.2d 521. The statute involved in the case at bar is governed by the principle.
The conclusion we have reached, that the tax proceeds realized by the City of Pensacola from a cigarette tax imposed and levied pursuant to chapter 26320, supra, may not be pledged for the construction and maintenance of the auditorium and pier to be erected by the City, makes it unnecessary for us to decide the question whether the tax provided by the statute is a state or municipal tax and whether the tax proceeds may be used by a municipality for the purposes expressly enumerated in the statute.
The decree appealed from should be affirmed.
It is so ordered.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.