CENTRAL TRUCK LINES, INC., ET AL., PETITIONERS,
v.
ALAN S. BOYD ET AL., RESPODENTS
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Central Truck Lines challenged a Railroad Commission order granting Railway Express Agency a certificate of public convenience and necessity to operate as a motor carrier. The Florida Supreme Court dismissed the petition for lack of jurisdiction because the petition for writ of certiorari was filed more than eight months after the original order, outside the sixty-day statutory deadline.
The petition was dismissed sua sponte for lack of jurisdiction because it was not timely filed within sixty days of the order sought to be reviewed. Even if the intermediate petition to reopen proceedings could be characterized as a petition for rehearing, it was not timely filed as required by law and therefore did not extend the time for seeking certiorari.
“The applicable statutes and rules require such petition to be filed within sixty days after the entry of the order appealed from.”
Establishes the jurisdictional requirement that formed the basis for dismissal
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Join FLexlaw to unlock all legal intelligenceOn December 9, 1957, the Railroad Commission issued Order No. 4108 granting Railway Express Agency a certificate to operate as a common carrier of gen…
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The Court has heard oral arguments on the merits of this petition for writ of cer-tiorari. For the reasons hereafter pointed out, however, these proceedings must be dismissed sua sponte for want of jurisdiction.
The jurisdictional question has not been raised in this Court by any of the parties. If the failure to raise the question be considered as a consent of the parties to confer jurisdiction on this Court to entertain and decide the questions here presented, on the merits, such effort is, of course, impotent to accomplish that result. The efficient and orderly administration of justice as well as conservation of judicial labor requires such questions be raised promptly.
December 9, 1957, the Railroad Commission entered its order No. 4108 that Railway Express Agency, Inc., was entitled to a certificate of public convenience and necessity under the provisions of Section 323.26, F.S.A., as a matter of right and without a *548hearing; such order extended certificate No. 5S3 theretofore issued to said Railway Express Agency, Inc., so as to authorize in addition to the authority therein contained the operation of an auto transportation company in the common carriage of general commodities, including classes A and B explosives, moving in express service between Panama City, Florida and Apalachicola, Florida, serving Port St. Joe, Florida, as an intermediate point over the route therein set forth. January 31, 1958, this order was amended to correct an inadvertent error in the designation of one of the state highways involved.
June 2, 1958, nearly six months after the entry of the order of the 9th of December, supra, the seven petitioners here filed with the Commission a petition to “reopen the proceedings in the captioned docket, reconsider the matters therein contained * * * and revoke such certificate as has been issued to the applicant.” None of the petitioners were alleged to have “entered appearances of record in the proceedings before said commission in which the order sought to be reviewed was made” 1 and so far as we can learn from the limited record before us, none were directly affected by the entry of the order complained of except M. R. & R. Trucking Company.2 The petition generally recites the entry of the questioned order and contends that the applicant Express Company was not “a railroad company nor any company whose stock is owned by a railroad company” and does not come within the proviso of Section 323.26, Florida Statutes, F.S.A., supra, and was, therefore, not entitled to the issuance of the certificate as a matter of right. The other contention in the petition is that even if the applicant could be determined to come under the proviso in the statute, such certificate should not have been granted without proof of public convenience and necessity as would be required of an independent motor carrier. For these two reasons and because, so it is alleged in the petition, “this matter is of gravest importance to petitioners” the Commission Was importuned to “reconsider the matters therein contained * * * and revoke such certificate.”
On July 18th, the Railroad Commission entered its order No. 4338 summarily denying the petition and finding it to be without merit.3
The subject petition for writ of certiorari was filed in this Court September 15, 1958, within sixty days from the date of the order denying petitioners’ petition to reopen, reconsider and revoke but more than eight months after the entry of the order of December 9, 1957, around which this entire controversy revolves. The petition for writ of certiorari specifies as reasons relied on for granting said writ: (1) that respondents departed from the essential requirements of the law in determining that the applicant was entitled to a certificate without a hearing because such applicant was not “a railroad company” nor “any company whose stock is owned by a railroad company” within the contemplation of the statute; (2) that respondents departed from the essential requirements of the law in issuing applicant a certificate without a hearing and proof; (3) that respondents departed from the essential requirements of the law in issuing the applicant any authority as the application was one for extension of a certificate which *549did not fall within any of the requirements of Section 323.26, F.S.A., and (4) the majority 4 of the respondents departed from the essential requirements of the law in entering order No. 4338, the order filed therein seeking a review and revocation of order No. 4108 (the order of December 9, 1957). Thus it clearly appears from the petition for certiorari that while a review is sought of order No. 4338, the order attacked is that granting the certificate to the Express Company of December 9, 1957, an order granted more than eight months prior to the date the petition for certiorari was filed in this Court. Thus it is that “the order sought to he reviewed” 5 or “the order, decision, judgment or decree appealed from” 6 by whatever name it may be designated is the order of December 9, supra.
The applicable statutes and rules7 require such petition to be filed within sixty days after the entry of the order appealed from.
If it he conceded, arguendo, that the petition to reopen the proceedings and reconsider the matter was properly filed by these petitioners and that they were authorized to do so and may he said to be a petition for rehearing under the appropriate rule of the Commission,8 the same was not timely filed as required by decisions of this Court and, therefore, did not operate to stay the time within which certiorari should be taken.9
These proceedings are dismissed sua sponte.
TERRELL, C. J., and THOMAS, HOB-SON and THORNAL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State of Fla. ex rel. R. C. Motor Lines, Inc. v. Boyd, 114 So. 2d 169 (Fla. 1959)…was within the time authorized for the filing of a petition for the issuance of a writ of certiorari. Sec. 350.641, Fla.Stat., F. S.A.; Rule 4.1 and Rule 4.5, subd. c, Florida Appellate Rules, 31 F.S.A.; Central Truck Lines, Inc. v. Boyd, Fla.1958, 106 So. 2d 547. The issuance of the rule nisi in prohibition will have to be denied. We have several times announced that prohibition is a preventive rather than a corrective remedy. This extraordinary writ issues only to prevent the commission of an act. It is n…
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Pressley v. Louie L. Wainwright, 367 So. 2d 222 (Fla. 1979)…; Walsh v. Marsh, 220 So. 2d 897 (Fla.1969); Dave’s Auto Parts v. Westberry, 220 So. 2d 364, 365 (Fla. 1969); Overstreet v. Davis, 219 So. 2d 34, 34-35 (Fla.1969); Russom v. State, 109 So. 2d 30, 31-32 (Fla. 1959); Central Truck Lines, Inc. v. Boyd, 106 So. 2d 547, 549 (Fla.1958); Columbia Cas. Co. v. McFee, 81 So. 2d 631, 632 (Fla. 1955); Wieczorek v. Williams, 71 So. 2d 262 (Fla.1954); Atlantic Coast Line R. Co. v. Mack, 64 So. 2d 304, 307 (Fla.1952); State Dept. of Highway Safety & Motor Vehicles v. Adams,…
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Great S. Trucking Co. v. Carter, 113 So. 2d 555 (Fla. 1959)…e petition. Subsequent to said oral argument the Commission appointed a special examiner who held a pre-hearing conference. On January 8, 1959, Leonard Bros, filed a motion to dismiss on the authority of Central Truck Lines, Inc. v. Boyd, Fla.1958, 106 So. 2d 547. Upon a consideration of the record the Commission granted, via Order 4533, said motion to dismiss and “reaffirmed” its issuance of the challenged For Hire Permit. The instant petition for writ of certiorari was filed within 60 days of the issuance…1 / 3
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ganzer v. Ganzer, 84 So. 2d 591 (Fla. 1956)
- Redwing Carriers, Inc. v. Carter, 64 So. 2d 557 (Fla. 1953)