concurring. — This cause is here on writ of error to an order remanding the petitioner under a charge of violating a city ordinance.
By its charter the Town of Miami Beach has express power by ordinance “to regulate the speed at which * * * *527automobiles * * * may be driven through tbe streets” of the town. The ordinance asserted to be invalid is as follows:
“Any person who shall drive any automobile within the corporate limits of Miami Beach while in a drunken or intoxicated condition, or who shall be guilty of reckless driving, by driving any automobile or motor vehicle over or upon any sidewalk, boardwalk or concrete walk in the corporate limits, or by driving at a rate of speed greater than twenty-five miles per hour, or by turning corners, or approaching other automobiles, motorcycles, pedestrians in a reckless manner, shall be punished by a fine of not exceeding One Hundred Dollars, or by imprisonment not exceeding thirty days, or by both such fine and imprisonment, in the discretion of the Mayor.”
It is contended that the ordinance is invalid because it purports to regulate the speed &e., of automobiles ‘ ‘ within the corporate limits of Miami Beach,” which includes regulation upon private property as well as upon the highways within the town limits, the argument being that the town cannot regulate the operation of automobiles on private property and that the attempt to do so renders the ordinance entirely void. If it be conceded that the town may not be and has not been authorized to regulate the speed of automobiles when operated upon private property within the town, and that the quoted ordinance purports to regulate automobiles operated on private property as well as upon the highways within the town, the ordinance covers and may under the express charter power be applied to automobiles operated on streets within the town, even if it may not be applied to automobiles operated on private property, and as the charge here is that the petitioner was “driving an automobile over and upon a pub-*528lie highway in said city of Miami Beach at a rate of speed greater than 25 miles per hour, in violation of the ordinance” that is quoted above, the act charged is a violation of the ordinance, under circumstances that do not make the application of the ordinance illegal, since the town had the power to punish the act charged and it is covered by the ordinance. This is so even if the ordinance may not be legally applied to an act of excessive speed on private property. An enactment may be valid as applied to one state of facts and yet invalid as applied to another. Dutton Phosphate Co. v. Priest, 67 Fla. 370, 65 South. Rep. 282; Fergusson v. McDonald, 66 Fla. 494, 63 South. Rep. 915; Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 42 Sup. Ct. Rep. 106; Kansas City Southern R. Co. v. Anderson, 233 U. S. 325, 34 Sup. Ct. Rep. 599; El Paso & N. E. R. Co. v. Gutierrez, 215 U. S. 87, 30 Sup. Ct. Rep. 21.
While the lawmaking power of a State legislature is limited only by the State and Federal Constitutions, the law making power of a municipality is only that which is ¡'granted to it by the statutes of the State subject to organic law, just as Acts of Congress must be predicated upon powers granted by the Federal Constitution.
. 'Ordinances should be construed with reference to existing controlling law, and it must be assumed that a valid ordinance was intended where there is nothing to indicate a distinct purpose to violate the law adopting the ordinance. State ex rel. Ellis v. Tampa Water Works Co., 57 Fla. 533, 48 South. Rep. 639.
The rules applicable to the construction of statutes apply with equal force to ordinances. 19 R. C. L. 811; 2 McQuillan’s Munic. Corp. Section 810; 28 Cyc. 388; Continental Oil Co. v. City of Santa Fe, 25 N. M. 94, 177 *529Pac. Rep. 742, 3 A. L. R. 398; People v. Chicago Ry. Co., 270 Ill. 87, 110 N. E. Rep. 386, Ann Cas. 1917 B, 821.
While municipalities can legally exercise only such powers as are conferred by express provisions of law, or such as are by fair implication and intendment properly incident' to or included in the powers expressly conferred, and reasonable doubts as to the existence of a power should be resolved against the municipality, yet when authority exists and action is taken thereunder by a municipality, all doubts as to the propriety of the action taken should be resolved in favor of the municipality. See State ex rel. Ellis v. Tampa Water Works Co., 56 Fla. 850, 47 South. Rep. 358, 19 L. R. A. (N. S.) 183.
Conceding that the provision of the ordinance here considered should, in view of the language of the statute under which it was passed and with reference to which it must be construed, be regarded as meaning -only that the driving of automobiles at excessive speed therein forbidden and punished, should not be done on the streets of the town, yet the charge in this case is that the forbidden act was in fact done upon a public highway in the town, which is “within the corporate limits of Miami Beach.” The fact that the, regulations of the ordinance are not in terms limited to the operation of automobiles on the streets of the town does not render the .ordinance wholly void. If the ordinance may not legally be applied to the operation of automobiles on private property, such an act if alleged as an offense would not justify a conviction; and if not specifically alleged it may be shown in evidence and a conviction would be illegal. See Cason v. Quinby, 60 Fla. 35, 53 South. Rep. 741. See also Ferguson v. McDonald, 66 Fla. 494, 63 South. Rep. 815; Hardee v. Brown, 56 Fla. 377, 47 South. Rep. 834; Osborne v. State, 33 Fla. 162, *53014 South. Rep. 588; Osborne v. State of Florida, 164 U. S. 650, 17 Sup. Ct. Rep. 214.
The operation of the ordinance is limited by the statute under which the ordinance was passed if it is not also limited by the undisclosed title of the ordinance.
In Re Robinson, 73 Fla. 1068, 75 South. Rep. 604, the body of the statue did not limit its regulations ■ to automobiles operatel upon highways, but the title did so limit the act, and the information did not charge that the automobile was operated upon the highways.
This court sustained the statute and' held the information sufficient as against an application for discharge on habeas corpus. The court held that “under the allegation of operation * * * the circumstances of such operation may be shown.” If the circumstances are within the legal purview of the enactment the prosecution will be sustained (Ferguson v. McDonald, supra) ; and if the circumstances are not within the purview of the enactment the prosecution will not be sustained. Cason v. Quinby, supra.
In Royal Indemnity Co. v. Schwartz (Tex. Civ App.), 172 S. W. Rep. 581, an ordinance enacted under the general welfare powers of a city wherein regulations of the operation of automobiles “within the city limits” was held to be unreasonable as including within its regulated territory property other than streets. It was not held that the ordinance was void because in excess of an express power to regulate operation “upon the streets” of the city. There appears to have been no such express grant of power as exists in this case. Here the ordinance may be void as to the excess but not as to the extent of the power expressly granted.
*531In People v. Bell, 148 N. Y. Supp. 753, a conviction on a plea of guilty to a charge of running an automobile at a prohibited rate of speed “upon Main Street in said village” was held to be erroneous, because the ordinance under which the charge was made, regulated the speed “within the corporate limits of the village,” when the State law authorized such local regulations only upon pnblic highways, and because it was not alleged that ‘ ‘ Main Street” was a public highway or that the ordinance was adopted or that .the State law had been complied with as to the regulations. In the opinion it is said “if in this case the defendant had pleaded not guilty to the charge contained in the information, and the trial had proceeded without objection, and the evidence had been produced showing that the ordinance had been legally .adopted, and that all of the requirements of the Highway Law, relating to the ordinance, had been complied with, and that Main street was a public highway, and that the defendant had violated the ordinance, and at that point the defendant had said: “Why proceed further? I have committed the crime, I plead guilty” — a judgment of conviction thereon should be upheld. People v. Wiechers, 179 N. Y. 459, 72 N. E. 501, 1 Ann Cas. 475. It might be said in such case that the evidence would come to the aid of the information in describing the, crime committed, and that the plea was one of guilty to the crime so described. ’ ’
Browne, C. J., concurs.