ROBERT F. SCHNEIDER, PETITIONER,
v.
GUSTAFSON INDUSTRIES, INC., BITUMINOUS CASUALTY CORPORATION AND FLORIDA INDUSTRIAL COMMISSION, RESPONDENTS
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the Industrial Commission's order quashing the application for review was not justified, as neither the rule nor the statute was imperative and the Commission retained discretion.
The petitioner's transcript was filed four days late due to an erroneous computation by the deputy's secretary. The Industrial Commission quashed the …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Substantial Compliance cases and more on FLexlaw
Petitioner seeks a review of an order of the Industrial Commission quashing an application for review of an order of a deputy commissioner for failure to file the transcript within forty-five days after filing of the application,1 which at claimant’s *425option had been filed with the deputy for transmittal. Receipt by the Commission on August 3, 1961, was verified by letter of its counsel to the parties. The court reporter, without notice to appellant, petitioner in this Court, relied on an erroneous computation of time by the deputy’s secretary upon telephone inquiry, and the completion and filing of the transcript was delayed four days beyond the proper period without formal request for extension.
There is little doubt that these facts, under the principles applied in the past to appellate proceedings generally in this jurisdiction, would have warranted the exercise of judicial discretion to deny quashal of an appeal on motion for good cause shown.2 Nor is this result precluded by the use of imperative terminology in the rule of the Commission requiring that an appellant “shall have * * * the transcript *** fijec[ * * 4- within forty-five days * * unless the time is extended upon verified petition prior to the expiration of that period. Mandatory language has in a number of cases been construed as directory,3 dependent upon the history and subject matter of the particular provision, and as a general rule statutes setting the time when a thing is to be done are regarded as merely directory, where no provision restraining the doing of it after that time is included and the act in question is not one upon which court jurisdiction depends.4
A finer issue arises, however, from tte clause of the statute here in question providing in further imperative language that “the Commission shall dismiss” upon failure of an appellant to file a transcript “within the time specified or within such time as allowed by the commission pursuant to petition for an extension of time as aforesaid.” 5 This language, construed as any penal provision must be in a strict or literal sense, does not in our opinion amount to an express prohibition against the exercise of discretion in such dismissal or against the application of a rule of substantial as opposed to strict compliance.6
The action of the full Commission in dismissing this application for review under the circumstances revealed by the undisputed facts in the record and related here could be justified only by assuming that the Commission yvas under the impression that the requirements of its rules and the provisions of the pertinent statute deprive it of discretion in the matter and required the action taken. Having concluded that neither the rule nor the statute is imperative in its requirements and that under no circumstances could it be said that the order of the full Commission was the reasonable exercise of its discretion, such order *426is hereby quashed and the cause remanded to the Commission with directions to reinstate said petition for review and dispose of the cause on the merits.
ROBERTS, C. J., and THORNAL, O'CONNELL and CALDWELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
-
State v. Goode, 830 So. 2d 817 (Fla. 2002)…vices that “[although the term ‘shall’ normally has a mandatory connotation, in proper cases and particularly so where required to conform to constitutional requirements, it may be construed as permissive only”); Schneider v. Gustafson Indus., Inc., 139 So. 2d 423, 424 (Fla.1962) (holding in a worker’s compensation case that the Industrial Commission’s rule language stating that the appellant “shall” file transcripts within forty-five days was directory). Importantly, neither of these cases involved the signi…1 / 2
-
Allied Fid. Ins. Co. v. State, 415 So. 2d 109 (Fla. 3d DCA 1982)…r 903 relating to bail convinces us that the provision for notice to the surety in Section 903.26(2) is intended to accomplish the orderly and prompt conduct of the court’s business and is directory only. See Schneider v. Gustafson Industries, Inc., 139 So. 2d 423 (Fla.1962); Reid v. Southern Development Co., supra. Under Section 903.26, the surety is provided with two separate and distinct notices3: the first is a notice to produce the defendant at a time and place certain, see Section 903.26(l)(b), note 1,…
-
Rich v. Ryals, 212 So. 2d 641 (Fla. 1968)…grant of authority, and means “may,” and even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power.’ ” Again, in Schneider v. Gustafson Industries, Inc., 139 So. 2d 423, this court said: “A finer issue arises, however, from the clause of the statute here in question providing in further imperative language that ‘the Commission shall dismiss’ upon failure of an appellant to file a transcript ‘within the time specif…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Simmons v. State, 160 Fla. 626 (Fla. 1948)
- State v. Honorable Charles A. Carroll, 102 So. 2d 129 (Fla. 1958)
- Fagan v. Robbins, 96 Fla. 91 (Fla. 1928)
- Seaboard AIR Line R.R. Co. v. Holt, 80 So. 2d 354 (Fla. 1955)
- Reid v. The S. Dev. Co., 52 Fla. 595 (Fla. 1906)
- Stieff v. Hartwell, 35 Fla. 606 (Fla. 1895)
- Philip Fraser and Wife v. Willey, 2 Fla. 116 (Fla. 1848)
- Graham v. Mammie Thornton, 104 So. 2d 95 (Fla. 1st DCA 1958)
- Nitsos v. Carlisle, 104 So. 2d 144 (Fla. 1st DCA 1958)
- Axtell v. Nettie Lyons, 105 So. 2d 610 (Fla. 1st DCA 1958)