Ellis, J.
The plaintiff in error is the manager of the Miami Water Company, a corporation, which supplies water to the inhabitants of the City of Miami by a system of water works. The corporation is the successor of the Florida East Coast Hotel Company, which in 1900 obtained an exclusive franchise to operate within the city water, electric and' sewerage plants to supply the city and its inhabitants with water, electricity and sewerage conveniences. In 1909 the Florida East Coast Hotel Company sold to the Miami Water Company the system of water works and, assigned to it all the rights and privileges which the Florida East Coast Hotel Company [675]*675had under its franchise and from that time the Miami Water Company has supplied water to the people of the city for domestic and other purposes.
In August, 1919, the City Council passed an ordinance entitled “An ordinance to prevent and punish the sale of impure water in the City of Miami.” Under the provisions of this ordinance no person or corporation was permitted to sell or supply, to the inhabitants of the city, water for human consumption which shall have been taken from a well or other sources of supply “in or without” the limits of the city, unless the vendor shall hold a valid permit from the Board of Health of the city. Such permits the Board of Health were required to issue after an inspection of the plant -and source of supply the board should' find the same to be in a “clean and sanitary condition and the water satisfactory for human consumption according to the standard fixed by this ordinance.” These permits were to he good for three months and renewed only when after inspection the board should find the “water source of supply, tanks, receptacles, appliances and plant to be in accordance with the standards hereinbefore prescribed.” The ordinance provides that every receptacle for storing water for human consumption should be cleaned four times á year and every water main flushed as often. It was also provided that it should be unlawful to sell, serve or supply “for a consideration any water for human consumption containing more than 300 parts per million of chlorine in the form of magnesium or sodium chlorides, or more than 250 parts per million of carbonates in the form of calcium or magnesium carbonates,” or more than “200 bacteria to 1 cubic centimeter, or which is not potable, or which [676]*676cannot be used for human consumption without danger to human life.”
Section 5 of the ordinance provides for a fine not exceeding two hundred' dollars and sentence of imprisonment to be imposed upon any one who “violates any provision” of the ordinance, and it provides that “each day’s continuance of any such violation shall be deemed a separate offense.”
Section 6 declared the “health and welfare” of the city to be in peril and that the ordinance was for the “immediate preservation of the public peace, health and safety,” and should therefore go into effect upon its adoption and approval.
. Mr. Hyman, the petitioner, was arrested on September 1.1th, 1919, upon a warrant from the municipal court in which he was charged with the offense of “supplying to patrons of the Miami Water Company for human consumption, water taken from a well within the limits of the City of Miami, without first securing a permit from the Board of Health of the City of Miami.” The petitioner Avas tried, convicted and sentenced to pay a fine of |25.00, or to serve a term of 25 days in the city jail. In default of the payment of the fine he was committed to the custody of the respcmdent as chief of police of the city.
The petitioner then applied to the Judge of the Circuit Court for a Avrit of habeas corpus and moved for his discharge, contending that the ordinance of the city was “not applicable and is Amid as to him, and that he is not guilty of the charge,” and that the ordinance is unconstitutional and void, that his conviction is illegal and that he is deprived of his liberty without authority of law.
[677]*677The writ was issued. The return of the respondent was that he held the petitioner under the authority of the judgment of the municipal court, “as described in the petition and writ.” That .the ordinance was valid and the requirements thereof reasonable.
Prior to the filing of this return the respondent moved to quash the writ upon the ground that the petition and exhibits showed that the petitioner was held in lawful custody. This motion was denied.
The court-.heard the case as presented by the petition,, the return and the evidence and decided that the respondent’s custody of the petitioner was not illegal, that the ordinance under which he was convicted was' valid and that the petitioner be remanded. To this judgment a writ of error was allowed and taken by the petitioner.
The petition shows that there was an alternative jail sentence and that petitioner was committed to the custody of the respondent in default of the payment of the fine. There is no showing made in the record of the existence of an ordinance requiring the chief of police to detain one in custody who fails to pay a fine lawfully imposed. Y/hile the ordinance under which the petitioner was convicted provides for the imposition of a jail sentence, or both fine and imprisonment, it does not authorize the imprisonment of one who fails to pay a fine imposed. The judgment seems to have been that the petitioner “pay a fine of $25.00 or serve the term of 25 days in the city jail.’’ This judgment was neither to pay a fine nor. to be imprisoned. Its illegality was not questioned and it seems that the court ordered petitioner into custody in the event he failed to pay the fine as a means of compelling obedience to the judgment which was treated as [678]*678one imposing a fine. The point was not raised', however, so it will he passed. See Anderson v. Shackleford, 74 Fla. 36, 76 South. Rep. 343.
The petitioner’s contention is, first, that the franchise under which it operates is a valid existing contract between the Miami Water Company and the city, and that the ordinance under Avhich he was convicted constitutes an attempt on the part of the city to alter or amend the terms of the contract without the company’s consent; second, that the requirements of the ordinance are unreasonable in the specifications as to the quantity of chlorine and carbonates which water offered for sale should' not contain • third, that the ordinance is unreasonable because the company which supplies the city with water under its contract, the ordinance of 1900, furnishes the natural available water, that there is no practical AVay of eliminating the chlorine content which tends to make the water salty, and the carbonates can be eliminated only by the installation of an expensive plant for that purpose which would require a long time and large sums of money to erect in the meantime each days’ supplying of water would constitute a new offense and the accumulated penalties would be confiscatory of the property and the imprisonment of its officers would prevent the accomplishment of the work of installing the necessary plants.
It is claimed that on account of these provisions the ordinance deprives persons subject thereto of due process of law and the equal protection of the law, and operates to deprive them of the right to test its legality in the courts and is therefore in violation of the State and Federal Constitutions.
[679]
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Ellis, J.
The plaintiff in error is the manager of the Miami Water Company, a corporation, which supplies water to the inhabitants of the City of Miami by a system of water works. The corporation is the successor of the Florida East Coast Hotel Company, which in 1900 obtained an exclusive franchise to operate within the city water, electric and' sewerage plants to supply the city and its inhabitants with water, electricity and sewerage conveniences. In 1909 the Florida East Coast Hotel Company sold to the Miami Water Company the system of water works and, assigned to it all the rights and privileges which the Florida East Coast Hotel Company [675]*675had under its franchise and from that time the Miami Water Company has supplied water to the people of the city for domestic and other purposes.
In August, 1919, the City Council passed an ordinance entitled “An ordinance to prevent and punish the sale of impure water in the City of Miami.” Under the provisions of this ordinance no person or corporation was permitted to sell or supply, to the inhabitants of the city, water for human consumption which shall have been taken from a well or other sources of supply “in or without” the limits of the city, unless the vendor shall hold a valid permit from the Board of Health of the city. Such permits the Board of Health were required to issue after an inspection of the plant -and source of supply the board should' find the same to be in a “clean and sanitary condition and the water satisfactory for human consumption according to the standard fixed by this ordinance.” These permits were to he good for three months and renewed only when after inspection the board should find the “water source of supply, tanks, receptacles, appliances and plant to be in accordance with the standards hereinbefore prescribed.” The ordinance provides that every receptacle for storing water for human consumption should be cleaned four times á year and every water main flushed as often. It was also provided that it should be unlawful to sell, serve or supply “for a consideration any water for human consumption containing more than 300 parts per million of chlorine in the form of magnesium or sodium chlorides, or more than 250 parts per million of carbonates in the form of calcium or magnesium carbonates,” or more than “200 bacteria to 1 cubic centimeter, or which is not potable, or which [676]*676cannot be used for human consumption without danger to human life.”
Section 5 of the ordinance provides for a fine not exceeding two hundred' dollars and sentence of imprisonment to be imposed upon any one who “violates any provision” of the ordinance, and it provides that “each day’s continuance of any such violation shall be deemed a separate offense.”
Section 6 declared the “health and welfare” of the city to be in peril and that the ordinance was for the “immediate preservation of the public peace, health and safety,” and should therefore go into effect upon its adoption and approval.
. Mr. Hyman, the petitioner, was arrested on September 1.1th, 1919, upon a warrant from the municipal court in which he was charged with the offense of “supplying to patrons of the Miami Water Company for human consumption, water taken from a well within the limits of the City of Miami, without first securing a permit from the Board of Health of the City of Miami.” The petitioner Avas tried, convicted and sentenced to pay a fine of |25.00, or to serve a term of 25 days in the city jail. In default of the payment of the fine he was committed to the custody of the respcmdent as chief of police of the city.
The petitioner then applied to the Judge of the Circuit Court for a Avrit of habeas corpus and moved for his discharge, contending that the ordinance of the city was “not applicable and is Amid as to him, and that he is not guilty of the charge,” and that the ordinance is unconstitutional and void, that his conviction is illegal and that he is deprived of his liberty without authority of law.
[677]*677The writ was issued. The return of the respondent was that he held the petitioner under the authority of the judgment of the municipal court, “as described in the petition and writ.” That .the ordinance was valid and the requirements thereof reasonable.
Prior to the filing of this return the respondent moved to quash the writ upon the ground that the petition and exhibits showed that the petitioner was held in lawful custody. This motion was denied.
The court-.heard the case as presented by the petition,, the return and the evidence and decided that the respondent’s custody of the petitioner was not illegal, that the ordinance under which he was convicted was' valid and that the petitioner be remanded. To this judgment a writ of error was allowed and taken by the petitioner.
The petition shows that there was an alternative jail sentence and that petitioner was committed to the custody of the respondent in default of the payment of the fine. There is no showing made in the record of the existence of an ordinance requiring the chief of police to detain one in custody who fails to pay a fine lawfully imposed. Y/hile the ordinance under which the petitioner was convicted provides for the imposition of a jail sentence, or both fine and imprisonment, it does not authorize the imprisonment of one who fails to pay a fine imposed. The judgment seems to have been that the petitioner “pay a fine of $25.00 or serve the term of 25 days in the city jail.’’ This judgment was neither to pay a fine nor. to be imprisoned. Its illegality was not questioned and it seems that the court ordered petitioner into custody in the event he failed to pay the fine as a means of compelling obedience to the judgment which was treated as [678]*678one imposing a fine. The point was not raised', however, so it will he passed. See Anderson v. Shackleford, 74 Fla. 36, 76 South. Rep. 343.
The petitioner’s contention is, first, that the franchise under which it operates is a valid existing contract between the Miami Water Company and the city, and that the ordinance under Avhich he was convicted constitutes an attempt on the part of the city to alter or amend the terms of the contract without the company’s consent; second, that the requirements of the ordinance are unreasonable in the specifications as to the quantity of chlorine and carbonates which water offered for sale should' not contain • third, that the ordinance is unreasonable because the company which supplies the city with water under its contract, the ordinance of 1900, furnishes the natural available water, that there is no practical AVay of eliminating the chlorine content which tends to make the water salty, and the carbonates can be eliminated only by the installation of an expensive plant for that purpose which would require a long time and large sums of money to erect in the meantime each days’ supplying of water would constitute a new offense and the accumulated penalties would be confiscatory of the property and the imprisonment of its officers would prevent the accomplishment of the work of installing the necessary plants.
It is claimed that on account of these provisions the ordinance deprives persons subject thereto of due process of law and the equal protection of the law, and operates to deprive them of the right to test its legality in the courts and is therefore in violation of the State and Federal Constitutions.
[679]*679It is pointed out by counsel for defendants in error that the petitioner was charged and convicted for “failure to procure a permit” and “not for selling water that was not up to the standards fixed by the ordinance.” In reply to that suggestion it is claimed that the ordinance is not applicable to petitioner at all. The corporation and no¡¡t he owns the franchise. It is the corporation and not he that supplies the water, owns the tanks and receptacles which are to be inspected and to whom the permit if any should be granted.
The ordinance makes no provision for the punishment of the officers or employees of a corporation which sells or offers for sale water for human consumption within the city. And there is no evidence in the record that the petitioner was engaged in any effort to sell or supply water to the inhabitants of the city, except as an officer of a corporation, whose affairs and policies are controlled' by trustees. When speaking of the relative cost of obtaining water from the canal and putting in a water-softening plant, the petitioner testifying said that he did not know what the trustees would have done if the company could have obtained its water from the canal.
The ordinance makes no provision for the infliction of vicarious punishment. If any offense or violation, of the ordinance has been committed it was committed so far as the record discloses by the Miami Water Company, which failed to “procure the permit,” and from whose wells the inhabitants of the city are supplied. The question sought to be presented here is the validity of the 1919 ordinance considered as an amendment of the ordinance of 1900 which constitutes, the contract between the city and the water company, or considered as a regulation within the power of the city for the preser[680]*680vation of tlie public health.- It is generally conceded except by the ultra strict constructionists, that the constitutional prohibition upon State laws impairing the obligation of contracts does not restrict the power of the State to protect the public health, etc., as it may be involved in the execution of such contracts.
The city, presumably acting under authority from the State, may enact such ordinances as are necessary for the protection of the public health, even when the requirements of the ordinances impose upon certain persons or corporations having contracts with the city the observance of conditions hot mentioned or required in such, contracts. But the test of the. validity of such ordinances is reasonableness both as to the object to be obtained and the method of obtaining it. If it is assumed' that the contract of 1900 contemplates that wholesome water was to be supplied by the company for human consumption, the' test of reasonableness as applied to the ordinance of 1919 would be whether the water furnished by the water company is wholesome. Because if it is'wholesome but contains some matter bacteriological or mineral which is different in character and quantity from the standard fixed by the new ord'inace the end to be attained, namely, the preservation of the public health, is preserved under the old as well as it would be under the new ordinance, and the latter would be merely an' unnecessary, capricious, intermedling and interference with the obligations of the contract.
It is not within the power of a municipality in the exercise of its legislative function in behalf of the public hpalth to declare that all water which contains a certain percentage of solid matter is unwholesome and unfit for use if such is not the hygienic fact. The force of the [681]*681ordinance must rest upon the accuracy of the standard. Now to determine the reasonableness of the standard prescribed by the ordinance of 1919 considered' as a regulation for the public health, which imposes upon the Miami Water Company conditions not required by the contract of 1900 requires the presence in court of the water company to raise the question. Otherwise it would be a moot one and the opinion of this court purely obiter dicta.
The facts are that the Miami Water Company is engaged, in the business of supplying water to the city for consumption by its inhabitants. It operates under a franchise obtained by its predecessor in 1900. The ordinance Avas evidently' intended to require that company to supply water containing not more than a certain percentage of solid or mineral matter, upon the theory that the water furnished at present by the company is unwholesome if it contains more solids than prescribed. The power of the municipality to require this to be done exists provided the standard set by the new ordinance in- fixing a maximum of chlorine and carbon content marks the limit beyond which water becomes impure and unwholesome.
Not to regard' the insinuations in the evidence and .innuendoes of counsel that the purpose of the ordinance was commercial and not hygienic, if we inquired into the reasonableness of the requirements of the ordinance it Avould be difficult to reconcile the specification limiting the chlorine -content in the form of “magnesium or sodium chlorides” to 300 parts per million with any other purpose than one to secure water agreeable to the taste, rather than necessary to the -preservation of the public health. The evidence which is preserved in the bill of [682]*682exceptions and to which we may refer to ascertain whether the city has prescribed a reasonable regulation, leaves the matter very much in doubt as to whether 300 parts per million of chloride of sodium renders water unwholesome or merely unpalatable, but if it contained 200 parts of chlorine in that form and 110 parts in the form of chloride of magnesia it would seem to come within the condemnation of the ordinance, notwithstanding that chlorine in those forms and in that proportion would be neither unwholesome nor unpalatable. We will not undertake, however, to determine the reasonableness or unreasonableness of the ordinance in a case such as this where the plaintiff in error is one to whom the provisions of the ordinance do not apply as he appears not to be engaged in the sale of water for human consumption within the meaning of the ordinance and therefore could not obtain a permit and who cannot raise the question of the violation of the obligation of the contract between the city and water company.
The judgment of the court is reversed and the prisoner ordered to be discharged.
Browne, O. J., and Taylor, J., concur specially;
Whitfield and West, J. J., dissent.