Star Employment Service, Inc. v. Florida Indus. Commission
| Decision Date | 15 June 1960 |
| Parties | STAR EMPLOYMENT SERVICE, INC., Petitioner, v. FLORIDA INDUSTRIAL COMMISSION, Respondent. |
| Court | Florida Supreme Court |
Carl R. Pennington, Jr., of Ervin, Buford & Pennington, Tallahassee, Hall & Hedrick, Miami, W. P. Shelley, Jr., Tallahassee, Daisy Richard Bisz, Miami, for petitioner.
Burnis T. Coleman, Gen. Counsel and Lawrence Kanzer, Tallahassee, for respondent.
The petitioner Star Employment Service, Inc., a private employment agency, requests us to review by certiorari an order of the Florida Industrial Commission which reversed an order of a deputy commissioner granting the petitioner's license.
We dispose of the matter on jurisdictional grounds without reaching the merits.
Petitioner Star Employment Service, Inc., operated a private employment agency under Chapter 449, Florida Statutes, F.S.A. Its license to do business was revoked pursuant to the procedure prescribed by Section 449.13, Florida Statutes, F.S.A. Upon the filing of the complaint the respondent Commission designated a deputy commissioner in Dade County, Florida, to hear the matter and enter an order as prescribed by law. The deputy ordered petitioner's license granted and this order was filed in the office of the respondent Commission at Tallahassee. Petitioner applied for review and upon such review the full commission reversed the deputy. Thereafter, petitioner filed its petition for a writ of certiorari in the District Court of Appeal, Third District, seeking review of the order of the respondent Commission. The District Court of Appeal sua sponte transferred the matter to this Court for consideration and determination. Petitioner has moved that we transfer the matter back to the District Court of Appeal. The respondent Commission appeared, filed its brief and requested oral argument in the District Court of Appeal.
As has happened in several situations since the amendment of Article V, Florida Constitution, F.S.A., we are confronted by certain statutory provisions which have not yet been amended to harmonize with the amended judiciary article of the Constitution.
Section 449.13, Florida Statutes, F.S.A., contains a provision for the review which reads as follows:
Particular note should be taken of the provision which authorizes appeal 'to the circuit court in accordance with Section 440.27, Florida Statutes.' (Emphasis ours). Undoubtedly, this statutory provision contemplated the appellate procedure for reviewing workmen's compensation orders prior to the enactment of Chapter 28241, Laws of Florida, 1953, F.S.A. § 440.13 et seq. It will be recalled that formerly circuit courts reviewed workmen's compensation orders of the Florida Industrial Commission preliminary to ultimate review by this Court. Section 440.27, supra, has been changed. See Chapter 59-142, Laws of Florida, 1959. It now merely provides for direct review of workmen's compensation orders by petition for writ of certiorari to the Supreme Court. Obviously, the appeal provisions of Section 449.13, supra, the private employment agency statute, are now completely ineffective for the reason that they authorize an appeal to the 'circuit court' in accord with the provisions of a statute which makes no reference whatsoever to the 'circuit court.'
Article V, Section 26(10), Florida Constitution, provides that:
'Until otherwise provided by the legislature, orders of the Florida Industrial Commission shall be subject to review only by petition to the district courts of appeal for writ of certiorari.'
The quoted constitutional provision places review of all orders of the Florida Industrial Commission in the District Courts of Appeal, unless otherwise provided by the Legislature. It was for this reason that present Section 440.27, Florida Statutes, F.S.A., (Chapter 59-142, Laws of Florida, 1959), was enacted by the Legislature to authorize review of workmen's compensation orders by the Supreme Court instead of by the Courts of Appeal. The instant order, however, is obviously not within the workmen's compensation category.
Article V, Section 5(3), Florida Constitution, provides in part that:
'The district courts of appeal shall have such powers of direct review of administrative action as may be provided by law.'
However, in regard to review of private employment agency orders, the Legislature has not yet undertaken to specify the forum in which review might be had under either of the last two quoted provisions of the Constitution.
There is no question, however, but that an appropriate Court of Appeal would have jurisdiction to review this type of administration order under its constitutional jurisdiction provided for in Article V, Section 5(3), which reads in part as follows:
'A district court of appeal may issue writs of * * * certiorari * * *.'
See Sullivan v. Mayo, Fla.App. 1st Dist., 106 So.2d 4. Absent legislative action it is also clear from Article V, Section 26(10) that it is contemplated that all orders of the Florida Industrial Commission be reviewed by District Courts of Appeal. We, therefore, have the constitutional directive, in the absence of contrary legislation, to pursue review of this type of order in the District Courts of Appeal and we find the specific constitutional jurisdiction in the Courts of Appeal to review such orders by the exercise of the general power to issue writs of certiorari. The sole remaining problem is to determine the proper Court of Appeal to consider the case.
In arriving at a conclusion on this aspect of the matter, we think that we are confronted more nearly with a matter of venue, than with a matter of jurisdiction. Gay v. Ogilvie, Fla., 47 So.2d 525. In Smith v. Williams, 160 Fla. 580, 35 So.2d 844, which was an original proceeding, we held that when the Legislature has fixed the headquarters location of a government agency, such as the Florida Industrial Commission, a suit which primarily involves the construction of the rules or regulations of the agency must be brought in the county of its headquarters if the agency claims that privilege. On the other hand, if the suit involves a claimed protection against violation of constitutional rights of a citizen in the county where the suit is instituted, then such suit may be maintained in the county where the invasion of the constitutional right is...
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