GREAT SOUTHERN TRUCKING COMPANY ET AL., PETITIONERS,
v.
JERRY W. CARTER ET AL., RESPONDENTS

Fla. | 1959-07-10
THOMAS, C. J.,- and TERRELL, ROBERTS and DREW, JJ., concur.
113 So. 2d 555 Florida Supreme Court (1959) Positive Treatment
Cited by 8 cases

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Holding

A petition for writ of certiorari challenging an earlier order is untimely if filed more than 60 days after that order, even if a subsequent order reaffirms it.


Facts & Procedural History

Petitioners sought to challenge a For Hire Permit issued by the Commission via Order 4020. After petitioners filed a petition for investigation and re…

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Opinion of the Court
HOBSON, Justice.

HOBSON, Justice.

Petitioners filed their petition for a writ of certiorari challenging Orders numbered 4020 and 4533 of the respondent Railroad and Public Utilities Commission.

The basic facts of the case are not disputed. On May 7, 1956, Leonard Bros. Transfer & Storage Co., Inc. applied to the Commission for a For Hire Permit. On September 17, 1957, the Commission issued, without notice or hearing, Order 4020. Said order provides:

“By the Commission:
“Leonard Bros. Transfer & Storage Company has applied to this Commission for a For Hire Permit authorizing the transportation of freight, generally, between all points and places in the State of Florida over irregular routes, other than commodities that, because of size, weight, or bulk, require the use of special equipment or special services. The authority sought is limited to casual and non-recurring trips in connection with the carrier’s certificated operations as a heavy hauler.
“The applicant is the holder of Certificate No. 1^52, authorizing what is commonly referred to in transportation and regulatory circles as heavy hauling. It is not the intention of the car*556rier to engage in the common carriage of general freight or commodities under the requested authority. It is the desire of the carrier to have this' authority so that a complete packaged deal can be given to its customers in the movement of heavy commodities under its present certificate. In many instances, applicant’s customers have some articles commonly classified as general freight or 'commodities that need to be moved along with the heavy commodities authorized under its certificate, or in a separate vehicle. The requested authority will be used only for such transportation where both classes of commodities are carried for the same shipper to the same destination under the same contract of carriage * * * ”

On May 26, 1958 (eight months after the issuance of Order 4020) the petitioners herein filed a petition for investigation and revocation of Order 4020. Leonard Bros, filed a motion to quash said petition. On October 22, 1958, the Commission heard oral argument on the 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 of Order 4533, but more than 18 months after the entry of Order 4020.

In their petition the Petitioners contend that :

(1) The respondent Commission is prohibited from issuing a For Hire Permit to Leonard Bros, because it is the holder of a certificate of public convenience and necessity;

(2) Since the Commission was in reality expanding Leonard Bros, certificated rights under the guise of issuing a For Hire Permit, it violated essential requirements of the law when it failed to proceed pursuant to § 323.03, F.S.A.1

(3) The Commission should have held a public hearing pursuant to § 323.05, F.S. A.2

(4) The Commission properly reconsidered Order 4020 and, in making such review, it was not limited by its own rules respecting petitions for rehearing.

(5) The court’s decision in Central Truck Lines, Inc. v. Boyd, supra, does not control the instant case.

It is manifestly evident that, although the petition for writ of certiorari filed herein challenged Order 4533 as well as Order 4020, its underlying purpose is to secure the quashal of Order 4020 which was issued on September 17, 1957.

This case involves issues similar to those considered in Central Truck Lines, Inc. v. Boyd, 106 So.2d 547, 549, and it may be described as being on “all fours” with that case. In disposing of this case we can do no better than to quote from that portion of the Central Truck Lines case wherein this court said:

“Thus it is that ‘the order sought to be reviewed’ or ‘the order, decision, judgment or decree appealed from, by *557whatever name it may he designated is the order [of September 17, 1957].
“The applicable statutes and rules require such petition to be filed within sixty days after the entry of the order appealed from.
“If it be 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 be said to be a petition for rehearing under the appropriate rule of the Commission, 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.” 3

Thus it is clear that petitioners cannot at this late date by the method adopted herein attack the validity of Order 4020. The petition for certiorari is hereby denied.

THOMAS, C. J.,- and TERRELL, ROBERTS and DREW, JJ., concur.


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Citator

Cited By

  • Greyhound Lines, Inc. v. Jess Yarborough, 275 So. 2d 1 (Fla. 1973)
    …or charter carrier. Rather, it is as described in the permit, order, a special transportation service consisting of “single, casual, and nonrecurring trips.” Cf. Travis v. Fry, 139 Fla. 522, 190 So. 793; Great Southern Trucking Co. v. Carter, Fla., 113 So. 2d 555, and Blair Contracting Company v. Mason, Fla., 211 So. 2d 15, text 18. We reiterate there is no preclusion of this limited special service. Unless there are statutory limitations or restrictions either expressly or clearly implied in the governing…
  • Blair Contracting Co. v. Mason, 211 So. 2d 15 (Fla. 1968)
    …ppers generally, and casual, incidental, irregular and nonrecurring transportation of the special kind here considered. This distinction was clearly recognized by our Court in Travis v. Fry, supra, and in Great Southern Trucking Co. v. Carter, Fla., 113 So. 2d 555, and Orlando Transit Co. v. Florida Railroad & Public Utilities Commission, 160 Fla. 795, 37 So. 2d 321. We take judicial notice the Commission itself has given the governing statutes the same construction as has our Court. The Commission on May 11…
  • Nassau Power Corp. v. Beard, 601 So. 2d 1175 (Fla. 1992)
    …ellate review, a party must appeal the order in controversy, not a subsequent order that merely reiterates established precedent. Central Truck Lines v. Boyd, 106 So. 2d [*1179] 547, 548-49 (Fla.1958); see also Great Southern Trucking Co. v. Carter, 113 So. 2d 555, 556-57 (Fla.1959). Consequently, Nassau should have challenged the PSC’s determination by appealing Order No. 23234 — the order which affirmed Order No. 22341. Nassau cannot do so now under the guise of appealing the present orders. As explained b…

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