Schneider v. Gustafson Industries, Inc., 31391
| Decision Date | 28 March 1962 |
| Docket Number | No. 31391,31391 |
| Citation | 139 So.2d 423 |
| Parties | Robert F. SCHNEIDER, Petitioner, v. GUSTAFSON INDUSTRIES, INC., Bituminous Casualty Corporation and Florida Industrial Commission, Respondents. |
| Court | Florida Supreme Court |
Robert S. Lyons, Fort Lauderdale, for petitioner.
Charles Desmond Crowley, Fort Lauderdale, Burnis T. Coleman and Patrick H. Mears, Tallahassee, for respondents.
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 option 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 * * * filed * * * 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 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 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 was 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 is 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.
1 FIC Rule 6(a) provides: 'The appellant shall have * * * the transcript * * * filed * * * within forty-five days * * * unless * * * [the time is extended] for good cause shown * * * prior to the expiration of said period * * *' (Emphasis supplied...
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State v. Goode
...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......
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Rich v. Ryals, 36838
...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 'A finer issue arises, however, from the clause of the statute here in question providing in further imper......
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Williamson v. State, 86-2097
...(whether "shall" is to be considered mandatory or permissive depends on its context and legislative intent); Schneider v. Gustafson, 139 So.2d 423, 425 (Fla.1962) (same); Brown v. Pumpian, 504 So.2d 481, 482 (Fla. 1st DCA 1987) The trial court's reliance on Poleski v. State, 371 So.2d 548 (......
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Allied Fidelity Ins. Co. v. State, s. 81-2052 and 81-2127
...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......