State v. Furen

• Decision Date: 05 February 1960
• Citation: 118 So.2d 6
• Parties: STATE of Florida et al., Appellants, v. Al W. FUREN et al., Appellees.
• Court: Florida Supreme Court

Page 6

118 So.2d 6

STATE of Florida et al., Appellants, v. Al W. FUREN et al., Appellees.

Supreme Court of Florida.

Feb. 5, 1960.

Richard W. Ervin, Atty. Gen., Ralph M. McLane, Asst. Atty. Gen., and T. M. Shackleford, Jr., Tampa, for State of Florida; Knight Guild Aulsbrook for The Alliance for Conservation of Natural Resources in Pinellas County, Florida; Daisy K. Edwards, Edward F. Brantley, Mary R. Tracy and Floyd L. Brown; Noble C. Doss, Gulfport, for City of Gulfport, Fla., appellants.

Keen, O'Kelley & Spitz, J. Velma Keen, Charles H. Spitz, Tallahassee, and J. Hardin Peterson, Lakeland, for appellees.

PER CURIAM.

Chapter 31182, Special Acts of 1955, created the Pinellas County Water and Navigation Control Authority and defined its powers and duties. It will hereinafter be referred to as the County Authority. Pursuant to said Act appellees applied to the County Authority for a permit to fill certain submerged lands in Boca Ciega Bay. The County Authority referred the application to an examiner who took testimony and recommended that the permit be granted. Appellants and others excepted to the examiner's recommendation but their exceptions were overruled by the County Authority. A petition for rehearing was denied and prior to July 1, 1957, an appeal was taken to the Circuit Court of Pinellas County which court affirmed the order of the County Authority.

From the order of the Circuit Court, an appeal was taken to the District Court of Appeal, Second District, which on consideration of a motion to dismiss the appeal, ruled that it did not have the authority to entertain the appeal as such but that it could and would treat it is a petition for certiorari. Alliance for Conservation of Natural Resources in Pinellas County v. Furen, Fla.App.1958, 104 So.2d 803. The basis for this holding was the court's decision that the Circuit Court, in reviewing the decisions of the Pinellas County Water and Navigation Control Authority, was sitting in its appellate capacity and that the District Court of Appeal had no jurisdiction of an appeal from the Circuit Court acting in such capacity. Section 5(3), Article V, Florida Constitution, F.S.A.

The first question presented here has to do with our jurisdiction to entertain the instant appeal. Article V, Section 4, Florida Constitution, contains the jurisdictional provisions governing the Supreme Court and the pertinent part of subsection (2) thereof provides:

'Appeals from district courts of appeal may be taken to the supreme court, as a matter of right, only from decisions * * * initially construing a controlling provision of the Florida or federal constitution.'

The jurisdiction of the district courts of appeal is also set out in Article V, and Section 5(3) provides:

'Jurisdiction. Appeals from trial courts in each appellate district, * * * may be taken to the court of appeal of such district, as a matter of right, from all final judgments or decrees except those from which appeals may be taken direct to the supreme court or to a circuit court.'

Appellees contend that this court does not have jurisdiction of the cause because (1) the District Court of Appeal did not initially construe a controlling provision of the Florida Constitution; (2) when appeal was taken to the Circuit Court of Pinellas County the Circuit Court was an appellate court and there being no method of review to any other court, the Circuit Court was the final appellate court, subject to review by a superior court by certiorari, there being no authority for an appeal to the Supreme Court; (3) the attempted appeal to the Supreme Court is from an order of the District Court of Appeal, Second District, dated February 25, 1959, but it actually seeks to review said court order effective August 1, 1958, in which appellants acquiesced.

The interlocutory order on the motion to dismiss referred to above was reaffirmed by the final judgment of the District Court in Alliance for Conservation of Natural Resources in Pinellas County v. Furen, Fla.1959, 110 So.2d 55, from which final judgment the present appeal was prosecuted. The District Court necessarily construed the term 'trial court,' which term controlled its decision as to whether it would review the action of the Circuit Court by way of appeal or certiorari. Such being the controlling provision of the Constitution, we hold the words 'initial construction' as having reference to the construction given by the Second District Court in the case at hand and not that purportedly given by that court or any other District Court in some prior case, as suggested by appellees. We think that there can be no question about the jurisdiction of this court to adjudicate the question raised. This adjudication is supported by P. C. Lissenden Co., Inc., v. Board of County Commissioners of Palm Beach County, Fla., 116 So.2d 632.

We turn now to the crucial question in this case, towit: Was the District Court correct in holding that when the Circuit Court of Pinellas County reviewed and approved the order of the Pinellas County Water and Navigation Authority it sat not as a 'trial court' but as an appellate court, so that no appeal could be taken to the District Court of Appeal, Second District, under Article V, Section 5(3), Florida Constitution?

Appellants contend that when the Circuit Court reviewed the order of the County Authority it was sitting as a trial court and we think this is correct. Chapter 31182, § 8(e), Special Acts of 1955, authorizes anyone who is aggrieved by the Board's ruling to file a petition for rehearing and states that they 'shall have the right to have the entire cause reviewed by the Circuit Court of the Sixth Judicial Circuit (Court) of Florida in and for Pinellas county as provided by law for other appeals to the Circuit Court.' No other specification for review of the 'entire cause' is contained in the Act so we must look to other acts of the legislature and decisions of this court for instructions to review such orders.

This court has repeatedly held that where statutory administrative proceedings are had before administrative officers, boards, commissions or other tribunals, with statutory appeals to the circuit courts, such proceedings do not appear in the judicial department of the state government as a judicial 'case' until they are brought to the circuit court by appeal; therefore, the 'case' may be fairly regarded as originating in the circuit court through a statutory appeal from the administrative board as much as it would be so originating in the circuit court by injunction, certiorari or other original writ. South Atlantic S. S. Co. of Delaware v. Tutson, 1939, 139 Fla. 405, 190 So. 675; Duval Engineering & Contracting Co. v. Johnson, 1944, 154 Fla. 9, 16 So.2d 290; Alcoma Citrus Cooperative v. Isom, 1947, 159 Fla. 10, 30 So.2d 528.

These cases consistently support the reasoning that the Circuit Court sat as a trial court when it reviewed the 'entire cause' on appeal from the order of the County Authority. Reason and logic also support this conclusion. Such proceedings before boards and commissions are so often conducted without regard to proper decorum or observance of the rules for introduction or consideration of evidence that the work of the circuit court consists largely in preparing an intelligent and orderly 'case' for review by the appellate court. Reviewing the 'entire cause' connotes consideration of every aspect of it by the circuit court.

In his dissenting opinion in this case, commencing at 110 So.2d 64, Associate Judge L. L. Parks points out other good and sufficient reasons for holding that the Circuit Court was sitting as a trial court. The cases Judge Parks cites and discusses will not be treated in this opinion because some of them have to do with the area of review by certiorari which we are now confronted with in other cases, but as to cases like this, he correctly concludes that trouble would be obviated by characterizing review by the Circuit Court of administrative action as trial rather than appellate in nature.

Appellees have cited and discussed In re Smith, Fla.1954, 74 So.2d 353; Florida Hotel and Restaurant Commission v. Dowler, Fla.1958, 99 So.2d 852; Codomo v. Shaw, Fla.1958, 99 So.2d 849, to offset the contention of appellants on this point. We have given careful consideration to these cases but we do not think they have the scope and effect appellees give them. Moreover Codomo v. Shaw, supra, is not applicable herein in any event because the subject matter of this litigation was presented to the Circuit Court before the effective date of Amended Article V and of Florida Appellate Rule 4.1, 31 F.S.A.

The following are pertinent portions of the Florida Statutes, F.S.A., the Florida Constitution and the Florida Rules of Appellate Procedure which are germane to the jurisdictional issues. All emphasis has been supplied.

'475.35 Appeals to circuit court.----

'(1) The defendant may appeal from a final order of the [real estate] commission to the circuit court of the county from which he applied for registration, if an applicant, and registration has been denied, or, if the defendant is a registrant and his registration has been revoked or suspended, the county from which the records of the commission show him to be registered at the time the information is filed. * * *'

Section 6, Article V, Constitution of the State of Florida, F.S.A.:

'(3) Jurisdiction. * * * They [circuit courts] shall have original jurisdiction of actions of forcible entry and unlawful detainer, and of such other matters as the legislature may provide. They shall have final appellate jurisdiction in all civil and criminal cases arising in the county court, or before county judges' courts, of all misdemeanors tried in criminal courts of record, and of all cases arising in municipal courts, small claims courts, and courts of justices of the peace. * * *'

The intent of the Constitution in providing for appeals in 'ca...