Zirin v. Charles Pfizer & Co., 30821

• Decision Date: 29 March 1961
• Docket Number: No. 30821,30821
• Citation: 128 So.2d 594
• Court: Florida Supreme Court
• Parties: Benjamin ZIRIN, trading and doing business as Zirin Enterprises, Petitioner, v. CHARLES PFIZER & CO., Inc., Respondent.

Page 594

128 So.2d 594

Benjamin ZIRIN, trading and doing business as Zirin Enterprises, Petitioner, v. CHARLES PFIZER & CO., Inc., Respondent.

No. 30821.

Supreme Court of Florida.

March 29, 1961.

Rehearing Denied April 26, 1961.

Marchant & Perkins, Miami, for petitioner.

Theobald H. Englehardt and Cheren & Golden, Miami, for respondent.

DREW, Justice.

In addition to alleging a conflict of the decision below with previous decisions of this Court, the petition for certiorari here is accompanied by a certificate of the District Court of Appeal, Third District, under ARTICLE V, SECTION 4(2), FLORIDA CONSTITUTION, F.S.A¹., that such decision is one which passes upon a question of great public interest. ²

The respondent asserts that our jurisdiction to review this case is a limited one and not so extensive as that possessed by us in cases of direct appeals and interlocutory reviews by certiorari where this Court has 'such jurisdiction as may be necessary to complete determination of the cause on review.' ³ In this regard, respondent urges that we have the duty of determining what is a proper question within the scope of our power of review; moreover, respondent contends that our jurisdiction is limited to a decision on the question certified.

The first part of these contentions was finally decided by us in the case of Susco Car Rental System of Florida v. Leonard, Fla.1959, 112 So.2d 832, 834, 835, wherein the Court held, inter alia:

'The preliminary contention by respondents in this Court is that the question decided was not one of 'great public interest' in the constitutional sense; that the court erred in so certifying; and that consequently this Court is without jurisdiction in the premises.

'Whatever merit this argument might have had before the District Court in opposition to issuance of the certificate, the language of Article V does not, on its face, leave the point open to contest in this forum. Our jurisdiction in this class of cases is that we 'may review by certiorari any decision of a district court of appeal * * * that passes upon a question certified by the district court of appeal to be of great public interest.' (Emphasis supplied.) Certification is plainly a condition precedent to any review here upon this ground. A negative decision by the district court in the exercise of its discretion in a given case would certainly present no basis for review under the quoted language. Similarly, where a decision involves a question which has, incontrovertibly, been 'certified by the district court of appeal to be of great public interest,' then the specified condition has been fully met. No review or redetermination of the point is necessary or even proper unless by some stretch of reasoning the exercise of the power of certification could be found reviewable under related clauses defining other areas of appellate jurisdiction of this Court.' (Emphasis theirs.)

The second contention that we are limited in our review to the 'question' is seen to be without merit by a simple analysis of the constitutional provision itself. In each of the three instances mentioned where we may exercise our judgment to review by certiorari the subject of the sentence is 'any decision of a district court * * *.' A decision encompasses the opinion and judgment ⁴ and is generally regarded as determinative of the case, not merely a part of it. It is not the question of great public interest in a decision that we are concerned with but the decision that passes upon such a question. ⁵ Needless steps in litigation should be avoided wherever possible and courts should always bear in mind the almost universal command of constitutions that justice should be administered without 'sale, denial or delay.' Piecemeal determination of a cause by our appellate court should be avoided and when a case is properly lodged here there is no reason why it should not then be terminated here. In the Lissenden ⁶ case we said, with respect to appeals and in discussing an analogous matter '[m]oreover, the efficient and speedy administration of justice is * * * promoted' by doing so.

An examination of the cases that have been before us under this provision of the Constitution cited in footnote 5 reveals that there is no pattern as to the type of decisions which have been certified by the district courts of appeal as deciding questions of great public interest. Such inconsistency is to be anticipated and is not, as we indicated in the Susco case, supra, a 'point open to contest in this forum.'

However, our constitutional prerogative exists in the permissive word 'may' in that part of Article V reading, 'may review by certiorari any question of a district court of appeal * * * that passes upon a question certified by the district court of appeal to be of great public interest.' The mandate is clearly jurisdictional in nature and is satisfied, we have said, upon the certification of the district court to this Court. Jurisdiction being vested in us does not mean that we are required to decide the case and this is obvious from the very language of the sentence itself.

In conflict cases our jurisdiction attaches when we determine that there is a conflict. In the event such a determination is reached, then by virtue of the very language of the article itself, as well as the spirit and purpose of the law, we should resolve such conflict so that the laws of this State shall be of uniform operation throughout. ⁷ Under the provision providing for review of a decision which affects a class of constitutional or state officers, jurisdiction of the cause attaches when it is determined by us that such decision does in fact affect a class of constitutional or state officers. By virtue of the very nature of the discretionary writ of certiorari itself and the express inclusion in the Constitution of the word 'may' in dealing with our power to issue these particular writs, we are not required to decide every case that comes here. Whether this Court will in any given case render a decision under these three provisions of the Constitution is a matter solely for this Court in the exercise of its sound judicial discretion to determine. For the purpose of emphasis we repeat that the proposition of whether a decision of a district court decides a question of great public importance is one solely for the district court to determine only insofar as vesting complete jurisdiction in this Court to entertain the cause is concerned. After jurisdiction attaches, the Constitution then brings into play the power of this Court to exercise its discretion and then to determine whether in that case an opinion is justified or required. For instance, to cite just one example, a decision may be certified to this Court that does decide a question of great public importance but, on examination by this Court, we may conclude that the question answered was not essential to a determination of the case and is of such nature that no useful purpose would be served by rendering a decision. ⁸

A discussion of the constitutional provisions of other states sheds little light upon this direct question. Our research reveals no provision in any other constitution like ours. We find the answer in the plain and unequivocal language of our own Constitution and the overall plan embraced within Article V for appellate review of cases decided by trial courts of this State.

We now turn to the merits on this question on review. Section 47.171, Florida Statutes 1959, F.S.A., was originally enacted in 1957 as Chapter 57-97, General Laws of Florida. It is interesting to note that Section 1 of the original bill repealed Section 47.17, Florida Statutes 1955, F.S.A., which related to an alternative method of service of process on private corporations. In 1959, Section 47.17 was re-enacted by Chapter 59-46, General Laws of Florida. It now appears in the 1959 Florida Statutes as Section 47.17. Insofar as service of process in the instant case is concerned, it should be noted that such took place during the month of August 1959 or sometime prior to the effective date of present Section 47.17. And so it is that at the time of the service of process in this case the plaintiff in the court below was relying entirely upon the provisions of said Section 47.171.

The respondent here takes the position, among others, that the judgment of the trial court and hence the decision of the district court is correct because said Section 47.171 is restricted in its application to Florida corporations or foreign corporations duly qualified to do business in Florida and that, inasmuch as the corporation involved in these proceedings falls within neither classification but is a foreign corporation not qualified to do business in Florida, the statute is inapplicable to it. We must reject this contention because of our conclusion that the references to Sections 47.34, 47.35 and 47.36, Florida Statutes 1959, F.S.A. (the sections relating to Florida corporations and foreign corporations qualified to do business) do not limit its application to such corporations but such section numbers are inserted solely for the purpose of identifying that portion of such statutes which relates to the designation of agents for the service of process. In other words said Section 47.171 provides that any corporation which fails to designate an agent for the service of process may be brought before the courts of this State in a proper case by serving process--so far as foreign corporations are concerned--upon any agent of such corporation transacting business for it in Florida. Mason v. Mason Products Co., Fla.1953, 67 So.2d 762, 763 was concerned with Section 47.17. In that case we held that the individual upon whom service was made was not the business agent within the contemplation of Section 47.17, Florida Statutes 1951, F.S.A., and that the activities of such person so served was not such as would constitute doing business in this State. ⁹ And w...