Burnsed v. Seaboard Coastline R. Co.

• Decision Date: 06 February 1974
• Docket Number: No. 43651,43651
• Parties: Benjamin Levy BURNSED, Appellant, v. SEABOARD COASTLINE RAILROAD COMPANY, a corporation, Appellee.
• Court: Florida Supreme Court

Page 13

290 So.2d 13

Benjamin Levy BURNSED, Appellant, v. SEABOARD COASTLINE RAILROAD COMPANY, a corporation, Appellee.

No. 43651.

Supreme Court of Florida.

Feb. 6, 1974.

Ronald J. Hoffer, Dade City, for appellant.

George D. Lynn, Jr., of Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for appellee.

ROBERTS, Justice.

This cause is before us to review an interlocutory order of the Circuit Court of Pasco County holding that Section 357.08, Florida Statutes, F.S.A. is unconstitutional in that it is an arbitrary and unreasonable exercise of the police power. Although Burnsed seeks interlocutory appeal of the partial summary judgment entered by the trial court in favor of Seaboard Coastline Railroad Company, we must treat the appeal as a petition for writ of certiorari pursuant to our authority to do so under Article V, Section 2, Florida Constitution F.S.A. (1973). We have jurisdiction pursuant to Article V, Section 3(b)(3).

Preliminary to ruling on the constitutionality vel non of Section 357.08, Florida Statutes, in view of the changes which have been wrought by the revision of Article V, Florida Constitution, which became effective January 1, 1973, ¹ and since this case arrives at this Court upon an appeal of an interlocutory rather than final order of the trial court which directly passed on the constitutionality of Section 357.08, finding it to be unconstitutional, the necessity arises for this Court to construe 'new' Article V, Section 3(b) (1), Constitution of Florida (1973), in conjunction with 'new' Article V, Section 3(b)(3), Constitution of Florida (1973). The question arises whether this case should be treated as a direct appeal pursuant to Article V, Section 3(b)(1) or as a petition for writ of certiorari pursuant to Article V, Section 3(b)(3). The jurisdiction of this Court is both limited and defined by the Constitution of this state. This Court has jurisdiction of the cause and the only issue with regard to jurisdiction is whether or not the jurisdiction is discretionary, and, if so, whether or not it should be exercised in the present case.

Florida Constitution, Article V, Section 3(b)(1), provides that this Court:

'Shall hear appeals from final judgments of trial courts imposing the Death penalty and from Orders of trial courts and decisions of district courts of appeal Initially and directly passing on the validity of a state statute. . . .' (Emphasis supplied)

Thus, a literal reading of the Constitution indicates that there is no discretion in this Court in accepting jurisdiction of an interlocutory appeal from any order passing upon the validity of a statute. However, Florida Constitution, Article V, Section 3(b)(3), provides in applicable part that this Court:

'May review by certiorari . . . any interlocutory order passing upon a matter which upon final judgment would be directly appealable to the supreme court. . . .'

For the latter constitutional provision to be of any force and effect, Florida Constitution, Article V, Section 3(b)(1), must be read so as to allow appeal as a matter of right only from 'Final orders of trial courts . . . initially and directly passing on the validity of a state statute,' thus giving this court discretion in cases such as the case sub judice. It is a fundamental rule of construction of our constitution that a construction of the constitution which renders superfluous, meaningless or inoperative any of its provisions should not be adopted by the courts. State v. Butler, 70 Fla. 102, 69 So. 771 (1915); State v. Keller, 140 Fla. 346, 191 So. 542 (1939); Miami Shores Village v. Cowart, 108 So.2d 468 (Fla.1959); In Re Apportionment Law, Senate Joint Res.No.1305, 263 So.2d 797 (Fla.1973); City of Tampa v. Birdsong Motors, Inc., 261 So.2d 1 (Fla.1972). Where a constitutional provision will bear two constructions, one of which is consistent and the other which is inconsistent with another section of the constitution, the former must be adopted so that both provisions may stand and have effect. State v. Butler, supra; Advisory Opinion to the Governor, 96 So.2d 541 (Fla.1957). Construction of the constitution is favored which gives effect to every clause and every part thereof. Unless a different interest is clearly manifested, constitutional provisions are to be interpreted in reference to their relation to each other, that is in pari materia, since every provision was inserted with a definite purpose. Wheeler v. Meggs, 75 Fla. 687, 78 So. 685 (1918); Scarborough v. Webb's Cut Rate Drug Co., 150 Fla. 754, 8 So.2d 913 (1942); Thomas v. State, 58 So.2d 172 (Fla.) This Court stated in Amos v. Mathews, 99 Fla. 1, 126 So. 308, 316:

'The purpose of the people in adopting the Constitution should be deduced from the Constitution as an entirety. Therefore, in construing and applying provisions of the Constitution, such provisions should be considered, not separately, but in coordination with all other provisions.'

To give effect to Article V, Section 3(b)(3) which grants this Court the jurisdiction within its discretion to review by certiorari any interlocutory order passing upon a matter which would be directly appealable to the supreme court, the terminology 'orders of the trial court' must be interpreted to mean final orders. The language employed in Article V, Section 3(b)(1), i.e., final judgments of trial courts imposing the death penalty and 'decisions' of district courts of appeal, initially and directly passing on the validity of a state statute or a federal statute or treaty, or construing a provision of the state or federal constitution, denote finality. Read in pari materia with the entire clause which contains it and with Section 3(b)(3), the term order as employed in Section 3(b)(1) also denotes finality. ²

Although Article V. Section 4(2), Constitution of Florida (1968), employing the language 'final judgments or decrees,' was revised to 'orders' by the revision of Article V effective January 1, 1973, because of the context within which the term 'order' is utilized and because of the existence of 'new' Article V, Section 3(b)(3), we must still adhere to our opinion in State v. Kahler, 224 So.2d 272 (Fla.1969), wherein we stated that the, '. . . subject 'Order' which allegedly passes on the validity of a state statute must necessarily qualify as a Final judgment; otherwise, under the Constitution it could not be directly appealable here.'

Accordingly, it is within the discretion of this Court to grant review by certiorari of the instant partial summary judgment and we feel that jurisdiction should be granted. Ordinarily, we would not allow review of this kind because it would ofttimes result in piecemeal review which would in turn result in hardships for one or both of the litigants. However, since this cause involves a question of great public interest and since the determination of the constitutionality vel non of Section 357.08 will be vital to the disposition of the cause below, we exercise our discretion to allow the review sought by Burnsed.

The trial judge set forth the following facts gleaned from statements of fact made by counsel for the parties, based upon depositions of the plaintiff and train crew involved in the accident and upon answers to interrogatories filed in this cause:

'1. That shortly after midnight on March 22, 1972, plaintiff operated and drove his automobile into the side of defendant's freight train standing over an unlighted Pasco County Road lying approximately one mile south of Lacoochee, Florida. The crossing was protected by standard railroad cross-back signs.

'2. Plaintiff had on the previous afternoon driven to Lacoochee from Jacksonville, Florida, and between the hours of 4 o'clock and 8 o'clock P.M., had consumed four alcoholic drinks. Shortly after arrival at his sister-in-law's at about 8 o'clock P.M. he consumed an additional drink of an alcoholic nature. The accident occurred at about 2 o'clock A.M. while plaintiff was returning to Jacksonville.

'3. At the time of the accident, no fuses had been placed at the crossing as required by Section 357.08, Florida Statutes.

'4. Depositions of the various members of the train crew reveal the train had been standing on the crossing for approximately ten minutes prior to its departure. The stopping of such train was involuntary, because the train's air brakes had come on automatically and not as a result of any act on the part of the crew. This was due apparently to mechanical failure of a valve which caused a loss of air pressure in the braking system. During the next eight to ten minutes, the crew prepared to gather tools, lanterns, etc., in anticipation of searching for the brake problem, but after a few minutes the brakes themselves began releasing automatically. The train then proceeded on, its crew being unaware that an accident had meanwhile occurred at the crossing.'

Upon these facts and after argument of counsel, the trial court granted in part Seaboard's (defendant-below) motion for summary judgment insofar as the trial court determined that Section 357.08, Florida Statutes, is unconstitutional because it constitutes an arbitrary and unreasonable exercise of the state's police power.

Section 357.08, Florida Statutes, provides:

'357.08 Trains blocking highways during darkness, warning signals; violation.--(1) Whenever a railroad train shall engage in a switching operation or stop so as to block a public highway, road or street at any time from one half hour after sunset to one half hour before sunrise, the crew of such railroad train shall cause to be placed a lighted fuse or other visual warning device in both directions from such railroad train upon or at the edge of the pavement of the highway road or street to warn approaching motorists of the railroad train blocking the highway, road or street; provided, this section shall not apply to railroad crossings at which there are automatic warning devices properly functioning or at...