Title: Opinion File 73-79 thru 73-83
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003351/00001
 Material Information
Title: Opinion File 73-79 thru 73-83
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 73-79 thru 73-83
General Note: Box 14, Folder 3 ( Opinions 1972 - 1973 - 1972 - 1973 ), Item 36
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003351
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

73- 79


KEY W3ORS: ______ ___






October 10, 1973


TO: LMB
FR: TEC
RE: Appearance of Pinellas County Commission at hearing,
pursuant to notice, as a waiver of objection to Jurisdiction.

Facts: (1) Pinellas County Commission received notice of
hearing, complying with requirements of 373.151 (2)
F.S. (1971).
(2) Hearing was conducted by SWFWMD (R) and was a quasi-
judicial proceeding.
(3) Pinellas County Commission appeared generally and
offered testimony on the substantive issues before
the District.

SConclusion: In keeping with the quasi-judicial nature of the
proceeding, a general appearance should estop the Pinellas County
Commission from objecting to the exercise of jurisdiction over
them by the SWFWMD (R). However, in subsequent judicial review
of the District's decision, it appears that although the jurisdiction
over the Commissioners may not be attacked, the jurisdiction of the
District over the subject matter of their order may be attacked.

Reasoning: [A] The entry of a general appearance confers juris-
diction over the person, even if the notice was defective. A general
appearance before an administrative agency has been held to waive
all irregularities preceding the hearing unless objections are
raised at the hearing. 2 Am. Jur. 2d; Admin. Law 365

Assuming the District's hearing was a quasi-judicial proceeding,
it seems inconsistent to permit a party to appear generally, argue
the merits, and then if the decision is adverse to that party's
interests, permit the party to attack the District's jurisdiction
over him. In regular judicial proceedings in Florida this is not
permitted. (Fla. R.C.P. 1.140 (B)) However, it should be noted
that in regular judicial proceedings a party is given the opportunity
to object to the exercise of the Court's jurisdiction over him. This
opportunity may not have been made available to the Pinellas County
Commission.


r












[B] In any event it appears that the exercise of jurisdiction over
the subject matter at the hearing by the District is subject to
attack on appeal.

City of Pensacola vs. Maxwell (Fla. Sup. Ct., 1950)
49 So. 2d 527 (copy attached)
In Re Smith (Fla. Sup. Ct., 1954)
74 So. 2d 353
Campbell vs. Rein (1st D.C.A., 1967)
193 So. 2d 658




TEC/gh


a-v -
















CITY OF PENSACOLA v. MAXWELL
Cite as 49 So.2d 527


able and valid and does not offend either
the state or federal constitutions as al-
leged in the bill of complaint. (Grey
[Gray] v. Central Florida Lumber Com-
pany, 104 Fla. 446, 140 So. 320 [141 So.
604]; 47 Am.Jur. 204, section 6, and au-
thorities cited.)
"It Is, Thereupon, Ordered, Adjudged
And Decreed, that the Bill of Complaint
herein be and the same is hereby dismissed;
the costs of the cause to be taxed against
the plaintiff."
The decree of the lower court is af-
Sfirmed.

ADAMS, C. J., HOBSON, J., and OGIL-
VIE, Associate Justice, concur.


CITY OF PENSACOLA v. MAXWELL.

Supreme Court of Florida, en Banc.
Dec. 19, 1950.

J. C. Maxwell brought certiorari proceed-
ings against the City of Pensacola, a mu-
nicipal corporation, to review a ruling of the
Civil Service Board of the City of Pensa-
cola, dismissing plaintiff from service of the
city. The Circuit Court, for Escambia Coun-
ty, D. Stuart Gillis, J., rendered a judgment
for the plaintiff, and the defendant appealed.
The Supreme Court, Sebring, J., held that
Circuit Court erred in reweighing the evi-
dence adduced before the board for purposes
of determining wherein the preponderance
lay.
Judgment reversed with directions.
Chapman and Roberts, JJ., dissented.

1. Administrative law and procedure =795
Certiorari =64(2)
On review by court by certiorari of
proceedings of an administrative body,
court may inquire into jurisdiction of ad-
ministrative body.
2. Administrative law and procedure C=781
Certiorari =64(1)
On review by court by certiorari of
proceedings of an administrative body,


courts may inspect the record of proceed-
ings before administrative body to ascertain
whether that body proceeded in accordance
with authority conferred on it by control-
ling law.

3. Administrative law and procedure =787,
791, 793
Certiorari e= 68
On review by court by certiorari of
proceedings of an administrative body,
court may examine record to determine
whether there is substantial evidence to
justify finding of administrative body, but
may not reweigh evidence to determine
where preponderance lies, nor substitute its
judgment as to credibility of witnesses.

4. Municipal corporations (=S218(9)
On certiorari to review ruling of Civil
Service Board of city dismissing plaintiff
from service of city, circuit court erred in
reweighing evidence adduced before board
for purpose of determining wherein the
preponderance lay.



F. Churchill Mellen, Pensacola, for ap-
pellant.
C. Hobart Villar and Jones & Latham,
all of Pensacola, for appellee.

SEBRING, Justice.
The Civil Service Board of the City of
Pensacola dismissed the appellee from the
service of the City upon a finding that he
had been guilty of attempting to extort
money from the proprietor of a veterans'
organization which conducted a social club
in Pensacola, under a threat of prosecuting
the proprietor for the commission of a
crime and a promise of immunity from
prosecution upon payment of the money
demanded. The appellee sought a review
of the ruling by certiorari. Upon a motion
to quash the writ of certiorari the Circuit
Court of Escambia County entered the
order appealed from, which, in part, is as
follows:
"But for the unanimous decision of our
Supreme Court in Lorenzo v. Murphy, 159
Fla. 639, 32 So.2d 421, 424, quoting from
and inferentially adopting as a rule of law


Fla. 527


'

i.l ~t
i

.. .1
i :I iiii i i
i
ii :
,, II



ii
illl
ij i,
i': 1


II






i, : s
i* *^



I''





i
i 'i



f,


__


i I


KEY NUMBER SYSTEM
S
0 1-.EH ,:D






7 3-82


9 SOUTHERN REPORTER, 2d SERIES


in this state the following expression from
Crandall's Common Law Practice, p. 654:-
"'Certiorari is not limited to an inquiry
as to jurisdiction but extends to the manner
in which that jurisdiction is exercised. It
does not review questions of fact, yet the
court may, on certiorari, examine the evi-
dence and determine whether there is
sufficient evidence to justify the finding of
the inferior court, and such, it is submitted,
has been the practice of the Supreme Court
of this state, notwithstanding its averments
to the contrary.'" (Italics supplied):-
this court's inquiry would be limited to an
inspection of the record for the purpose of
ascertaining whether or not the Civil Serv-
ice Board proceeded within the authority
conferred by controlling law. Since, how-
ever, the scope of the writ chosen as the
vehicle by which the case has been brought
here has been broadened, as indicated by
the case cited, the evidence adduced upon
the trial has also been examined for the
purpose of determining whether or not the
charges have been sustained by a prepon-
derance of the evidence. Hammond v.
Curry, 153 Fla. 245, 14 So.2d 390. Head-
note 3.
"Much of the evidence was entirely ir-
relevant and immaterial to the issue in-
volved and served only to encumber the
record. Whether and to what extent, if
any, the judgment of the tribunal whose
findings are complained of was influenced
by these or other extraneous matters the
court ventures no opinion, but after a
careful and painstaking study of the entire
record is constrained to the view that the
judgment, or order of dismissal was er-
roneous.
"It is, therefore, ordered and adjudged
that said order be and the same is hereby
quashed."
As is apparent from a reading of the or-
der, the primary issue on this appeal is in
respect to the weight to be given by a court
to evidence taken before an administrative
body exercising quasi-judicial powers
where the action of that body is sought to
be reviewed by certiorari.
[1-3] The province of a court in the
review of proceedings brought before it


by writ of certiorari is well defined: The
court may inquire into the jurisdiction of
the administrative body whose order is
challenged. It may inspect the record of
the proceedings before the administrative
body to ascertain whether that body has
proceeded in accordance with the authority
conferred upon it by controlling law. It
may examine the record to determine
whether there is substantial evidence to
justify the finding of the administrative
body. It may not reweigh the evidence for
the purpose of determining where the pre-
ponderance lies, nor substitute its judgment
as to the credibility of witnesses for that
of the body charged with the duty of deter-
mining the facts. Compare Florida Motor
Lines v. State Railroad Commission, 101
Fla. 1018, 132 So. 851; Nelson v. State
ex rel. Quigg, 156 Fla. 189, 23 So.2d 136;
Pensacola Transit, Inc., v. Douglass, 160
Fla. 192, 34 So.2d 555; City of Miami v.
Huttoe, Fla., 38 So.2d 819; McQuillan on
Municipal Corporations 2d Ed.Rev. Vol. 2,
p. 506.
That the general scope of review in a
certiorari proceeding is as we have stated
it to be was undoubtedly recognized by the
able trial judge who prepared the order
from which this appeal was taken. For it
appears from his order that but for the
cases of Lorenzo v. Murphy, 159 Fla. 639,
32 So.2d 421 and Hammond v. Curry, 153
Fla. 245, 14 So.2d 390, which were con-
strued by him as requiring a broader use
of the writ, his inquiry into the proceed-
ings before the Civil Service Board would
have been confined "to an inspection of
the record for the purpose of ascertaining
whether or not the Civil Service Board
proceeded within the authority conferred
by controlling law."

[4] We cannot agree that the cases re-
lied on by the trial judge for the entry of
his order authorize or require the court in
a certiorari proceeding to reweigh the evi-
dence adduced before the tribunal whose
ruling is sought to be reviewed for the
purpose of determining wherein the pre.
ponderance lies. If such has been the con-
struction placed upon the cited cases we do


528 Fla.















CITY OF JACKSONVILLE v. NICHOLS ENGINEERING & R. CORP.
Cite as 49 So.2d 529


not hesitate to say that no such holding was
ever intended.
It follows from the conclusions reached
that the order appealed from should be
reversed with directions to the trial court
that it re-examine the record in the light
of the principles herein stated and give
judgment accordingly.
It is so ordered.

ADAMS, C. J., and TERRELL, THOM-
AS and HOBSON, JJ., concur.

CHAPMAN and ROBERTS, JJ., dis-
sent.


os IEY NUMBER SYSTEM





CITY OF JACKSONVILLE et al. v.
SNICHOLS ENGINEERING &
RESEARCH CORP.

Supreme Court of Florida, en Bane.
Dec. 22, 1950.
The Nichols Engineering & Research Cor-
poration, a corporation, brought action
against the City of Jacksonville, a munici-
pal corporation, and another for a declara-
tory decree to determine whether certifi-
cates of indebtedness issued to protect de-
ferred payments on contract between plain-
tiff and the named defendant for construc-
tion by plaintiff of municipal incinerator and
garbage disposal facilities and to enlarge
capacity of present facilities, were bonds
S within meaning of constitutional provisions
requiring an approving vote of freeholders
for issuance of bonds. The Circuit Court for
Duval County, Bayard B. Shields, J., ren-
dered a decree for the plaintiff, and defend-
ants appealed. The Supreme Court, Terrell,
J., held that the certificates of indebtedness
were not bonds within meaning of consti-
tutional provisions and that no vote of free-
holders was required.
Affirmed.
Thomas, J., dissented.
I. Municipal corporations SProvision for governmental needs of a
municipality do not require an approving
vote of freeholders as required by constitu-
49 So.2d-34


tion for issuance of bonds. F.S.A.Const.
art. 9, 6.
2. Municipal corporations 8=896
Certificates of indebtedness issued by
city to protect deferred payments on con-
tract between city and corporation for con-
struction of additional incinerator and gar-
bage disposal facilities and to enlarge ca-
pacity of present facilities in accordance
with ordinance enacted pursuant to stat-
ute, were not "bonds" requiring an approv-
ing vote of freeholders as required by con-
stitution for issuance of "bonds". F.S.A.
87.01; Sp.Acts 1949, c. 26436; F.S.A.
Const. art. 9, 6.
See publication Words and Phrases, for
other judicial constructions and definitions
of "Bond".


Inman P. Crutchfield, Jacksonville, for
appellants.
Austin Miller and Harry B. Fozzard,
Jacksonville, for appellee.

TERRELL, Justice.
Pursuant to Chapter 26436, Acts of 1949,
Extraordinary Session, the City of Jack-
sonville enacted Ordinance B B-436, on au-
thority of which the City Commission en-
tered into a contract with appellee to con-
struct additional incinerator and garbage
disposal facilities and to enlarge the capac-
ity of its present such facilities. The con-
tractor, hereinafter referred to as appellee,
brought this suit for declaratory decree as
authorized by Chapter 87.01 F.S.A. to de-
termine whether or not (1) Chapter 26436
and the ordinance enacted pursuant thereto
are a valid exercise of legislative power.
(2) Whether the contract for construction
of garbage disposal facilities is enforceable
and whether or not the certificates of in-
debtedness issued to protect deferred pay-
ments on the contract are violative of
Section 6 of Article IX of the Constitu-
tion, F.S.A.
The cause came on for disposition on the
motion of appellee for final decree on the
issues made by the petition and the answers
thereto. The chancellor found the city to
be clothed with a continuing duty to main-
tain an adequate and sufficient garbage dis-


Fla. 529


- -




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs