State ex rel. Florida Indus. Commission v. Willis, C-13

• Citation: 124 So.2d 48
• Decision Date: 04 November 1960
• Docket Number: No. C-13,C-13
• Parties: STATE of Florida ex rel. FLORIDA INDUSTRIAL COMMISSION and James T. Vocelle, Walter L. Lightsey and Stuart L. Moore, as and constituting the Florida Industrial Commission, Relators, v. Ben C. WILLIS, as Judge of the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, Respondent.
• Court: Court of Appeal of Florida (US)

Page 48

124 So.2d 48

STATE of Florida ex rel. FLORIDA INDUSTRIAL COMMISSION and James T. Vocelle, Walter L. Lightsey and Stuart L. Moore, as and constituting the Florida Industrial Commission, Relators, v. Ben C. WILLIS, as Judge of the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, Respondent.

No. C-13.

District Court of Appeal of Florida, First District.

Nov. 4, 1960.

Rehearing Denied Nov. 28, 1960.

Burnis T. Coleman and Lawrence Kanzer, Tallahassee, for relators.

Pallot, Marks, Lundeen, Poppell & Horwich, Miami, for respondent.

WIGGINTON, Chief Judge.

Relators have filed in this court a suggestion for writ of prohibition to restrain the Honorable Ben C. Willis, as Judge of the Circuit Court of Leon County, Florida, from exercising further jurisdiction in a mandamus proceeding pending in that court wherein Air Control Products, Inc., is petitioner and the Florida Industrial Commission is the respondent. We are not called upon the adjudicate in this proceeding the merits of the controversy which has arisen between Air Control Products, Inc., and the Unemployment Compensation Tax Division of the Florida Industrial Commission which forms the subject matter of the mandamus proceeding sought to be prohibited. The sole question presented for our determination is whether the Circuit Court of Leon County is proceeding without jurisdiction, or in excess of the jurisdiction conferred upon it by law. ¹

The mandamus action in question was instituted by Air Control against the Florida Industrial Commission by petition which alleges that the Commission notified Air Control of its determination that an employer-employee relationship existed between Air Control and certain named independent contractors, and demanding employment compensation contributions on the money paid to such independent contractors. The petition further alleges that Air Control paid under protest the contribution assessment levied against it by the Commission, the protest being predicated upon the assertion that the independent contractors named by the Commission in its status determination were not employees, and for that reason no unemployment contributions on the amounts of compensation paid to them were assessable. Air Control thereafter made a written demand upon the Commission that it be granted an adjustment or refund of the amount of contributions so paid, which demand was made pursuant to the provisions of F.S. § 443.15(6), F.S.A.

The petition alleges in paragraph 6:

'On or about August 6, 1959, the Respondents, by and through their official representative, advised the Relator that the request of July 15, 1959, was recognized as a request for refund and the Respondents, by and through their official representative, further advised the Relator that, upon the advice of the Legal Department of Respondents

"* * * it would appear to be necessary to file a petition for Writ of Mandamus to require us to refund the money and if a Court of final jurisdiction so orders, we will do so but not otherwise."

The Commission admitted the truth of this allegation is its return to the alternative Writ of Mandamus. Air Control in its petition prays for the issuance of an alternative writ commanding the Commission to make the refund or grant an adjustment of Air Control in the amount paid by it.

Both Air Control in its petition and the Commission in its return alleged that the written demand by Air Control upon the Commission was made pursuant to the provisions of subsection (6) of Section 443.15, Florida Statutes, F.S.A., which subsection provides in full as follows:

'Refunds.--If not later than four years after the date of payment of any amount as contributions, interest or penalties, an employing unit who has paid such contributions, interest or penalties shall make application for an adjustment thereof in connection with subsequent contribution payments, or for a refund thereof because such adjustment cannot be made, and the commission shall allow such employer to make an adjustment thereof without interest in connection with subsequent contribution payment by him, or if such adjustment cannot be made, the commission shall refund said amount, without interest, from the fund. For like cause, and within the same period, adjustment or refund may be made on the commission's own initiative. Provided, however, that nothing in this chapter shall be construed to authorize a refund of contributions which were properly paid in accordance with the provisions of this chapter at the time of such payment; provided further that refunds under this subsection and under § 443.03(5)(g) 7. may be paid from either the clearing account or the benefit account of the unemployment compensation fund and from the special employment security administration fund with respect to interest or penalties which have been previously paid into such fund, provisions of § 443.10(2) to the contrary notwithstanding.'

A literal and uncritical reading of the first sentence of this quoted subsection might lead a reader to conclude that the Commission would be always required to allow an adjustment or refund upon a timely application therefor, in view of the language 'the Commission shall allow such employer to make an adjustment thereof * * * or * * * the Commission shall refund said amount * * *.' Such a construction, of course, would be absurd and would permit employers to destroy the unemployment compensation program of Florida by the simple device of applying for an adjustment or refund within the time prescribed. We, instead, apply the basic rules of statutory construction (that a statute should not be construed to bring about an unreasonable or absured result and that a statutory provision should be construed to effectuate the intention of the legislature in enacting the statute) and hold that in the quoted subsection the legislature intended that upon a timely application by an employing unit for an adjustment or refund, the Commission must then make a new determination as to whether such unit is entitled to an adjustment or refund; that, if the Commission then determines that the applying unit is so entitled, the Commission then shall allow the adjustment or make the refund. We cannot, however, find in the subsection a legislative intent to provide for a hearing on the application by the applying unit at which hearing evidence would be taken and a record made up which could be examined by an appellate court in certiorari proceedings.

Examining the actions of the Commission in the light of the quoted subsection as we construe it, the conclusion appears inevitable from the allegations of both the petition for writ of mandamus and the return to the alternative writ that the Commission arbitrarily denied the application of Air Control for an adjustment or refund without even making a redetermination, merely adhering to any determination it may have made originally to the effect that Air Control was liable for payment. That communication from the 'offical representative' of the Commission made this clear by declaring that the Commission would make a refund only if a court of final jurisdiction so ordered 'but not otherwise.' The statement in that communication that 'it would appear to be necessary to file a Petition for a Writ of Mandamus to require us to refund the money * * *' cannot have the effect of conferring jurisdiction upon any court but does have the effect of supporting the conclusion that the Commission would take no further step on the application except if ordered to do so by a court of competent jurisdiction.

A profound fundamental principle is involved in this situation--whether the citizens of this State shall have recourse to the courts when an administrative agency of the state has with seeming arbitrariness refused to give consideration to an application for adjustment or refund made pursuant to a provision of law. The citizen in a case like this has no right of appeal or certiorari to obtain a review by the court, for no hearing has been provided by the legislature which would permit the making of a record that would allow an appellate court judicially to review the agency's order. Without such a record the only court proceeding which would seem to be available is the Writ of Mandamus, in which proceeding the court would have an opportunity to make the determination as to whether an applicant for an adjustment or refund was entitled to one or the other under the law and the facts. This is exactly what the Respondent in these prohibition proceedings has assumed jurisdiction to do in the instant case.

We cannot say that upon the record before us the Respondent is without jurisdiction or has exceeded his jurisdiction, and the burden is upon the Commission, which has filed the suggestion in prohibition before us, to allege sufficiently and to show in the record filed before us that the Respondent lacks jurisdiction or has exceeded it. Under such circumstances a Suggestion in prohibition must be denied. The suggestion should also be denied for the additional reason that it attempts to make these prohibition proceedings a substitute for an appeal and has failed to show that the questions raised in its suggestion cannot adequately be settled on an appeal.

It was a situation somewhat like this that the people of Florida had in mind in 1885 when they adopted Section 4 of the Declaration of Rights of the Florida Constitution, F.S.A., which section reads as follows:

'Courts open to everyone; remedy for wrongs.--All courts in this state shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay.'

An exact factual situation as presented here was present in the Orange State Oil Company case. ² The allegations of the petition for writ of mandamus filed in that case are almost...