Lomelo v. Mayo

• Decision Date: 30 November 1967
• Docket Number: No. J--259,J--259
• Citation: 204 So.2d 550
• Parties: John LOMELO, Jr., et al., Petitioners, v. William T. MAYO et al., as Members of the Public Service Commission, Respondents.
• Court: Florida District Court of Appeals

Page 550

204 So.2d 550

John LOMELO, Jr., et al., Petitioners, v. William T. MAYO et al., as Members of the Public Service Commission, Respondents.

No. J--259.

District Court of Appeal of Florida, First District.

Nov. 30, 1967.

John W. Achor, Chipley, for petitioners.

Lewis W. Petteway and Prentice P. Pruitt, Tallahassee, for respondents.

WIGGINTON, Chief Judge.

This is a case of original jurisdiction in which petitioners seek a writ of prohibition against respondents. The purpose of the writ is to prohibit respondents from holding a hearing or proceeding to further consider a notice filed with it by Public Utilities Corporation in which the latter seeks a general increase in the schedule of rates and charges for water and sewer service furnished by it to the inhabitants of City of Sunrise Golf Village in Broward County.

Public Utilities Corporation is a private corporation holding a certificate of public convenience and necessity issued to it under the water and sewer system regulatory law of this state. ¹ Under its certificate the corporation is authorized to furnish water and sewer service to the inhabitants of City of Sunrise Golf Village in Broward County, and to charge for its services the rates approved by respondents.

On August 12, 1966, Public Utilities Corporation filed with respondents a notice of proposed changes in rates and charges for the water and sewer services furnished by it, but a hearing on such notice was not held by respondents until March 14, 1967, some 214 days subsequent to the date on which the notice was filed. It is the position of petitioners that by the terms of the water and sewer system regulatory law respondents were required to hold a hearing and enter their order on the notice of proposed change in rates filed by Public Utilities Corporation within 180 days after the filing of the notice with it, and having failed to act within the time limited by the statute, it is now without jurisdiction to further consider the notice or to take any affirmative action thereon.

The Legislature of Florida, in 1959, enacted the water and sewer system regulatory law for the purpose of vesting in the Florida Public Service Commission jurisdiction to regulate the operation of public utility corporations furnishing water and sewer services to the citizens of this state, including the right to regulate the rates charged by such corporations for the services furnished. The law provides that when any general increase in a schedule of rates and charges for water and sewer services is proposed, such increases shall not become effective until after a public hearing by the Public Service Commission, which hearing shall be held only after due notice to the executive officer of every county and municipality affected, which notice shall be published once a week for two consecutive weeks in a newspaper of general circulation in the territory affected. The statute further provides as follows:

'Time for hearing and entry of order.--Whenever there is filed with the commission by any public utility holding a certificate under the provisions of this law any notice of general increases in a schedule of rates and charges, the commission may either upon complaint or of its own initiative, and after such public notice, enter upon a hearing to determine whether the proposed rates are just, reasonable, sufficient and compensatory, and said hearing shall be held and the order entered thereon within one hundred eighty days from the date the public utility filed with the commission its written notice showing the change or changes proposed.' ²

The primary question on which our decision must turn involves a construction of the above-quoted section of the statute and a determination as to whether the requirement that the hearing 'shall' be held and the order entered thereon within 180 days from the date the public utility filed with the Commission its written notice is directory or mandatory.

It has been held that although the word 'shall' normally has a mandatory connotation, it may, in proper cases, be construed as permissive only. ³

In construing a provision of the statute limiting the time when tax assessment procedures were to be performed by the county tax assessor, the Supreme Court of Florida in Stieff v. Hartwell ⁴ said:

'* * * As a general rule, a provision in a statute, naming the time when an act is to be done in the assessment and collection of the taxes, is a direction, and not a limitation. There must be something in the statute indicating that the time named was intended as a limitation, before the courts will construe it as such. * * *'

It is noted that in the statute involved in the case sub judice there is nothing to indicate that the requirement for the public hearing and entry of the order of the Public Service Commission within 180 days from the filing of the notice of rate changes is intended as a limitation on the Commission's power to act.

In Reid v. Southern Development Co. ⁵ the Supreme Court construed the language of the statute which provided that the tax assessor 'shall' make one visit to each precinct in the county after giving ten days notice of such visit. In that case the court said:

'* * * The question arises, therefore, whether...