Opinion
August 1, 1950.
Appeal from the Florida Railroad and Public Utilities Commission.
Charles Cook Howell and Frank G. Kurka, Wilmington, N.C., for appellant.
Lewis W. Petteway, Tallahassee, D. Fred McMullen, Tampa, and Guyte P. McCord, Jr., Tallahassee, for appellees.
This cause came on to be heard on the motion of appellees to dismiss an appeal from an order of the Florida Railroad and Public Utilities Commission and to require that said cause proceed in the future in accordance with the provisions of Rule 28 of this Court, 30 F.S.A., governing certiorari. The order was entered in a proceeding before the Commission wherein appellant applied to said Commission for authority to discontinue Cross City as a regular stop for two of the passenger trains of appellant. The application was denied by the order of the Commission and the question presented here is whether a final order of the Florida Railroad and Public Utilities Commission may be reviewed on a direct appeal by the Supreme Court of Florida. Said question was determined in the opinion of this Court in Atlantic Coast Line Railroad Company v. U.S. Sugar Corporation and Florida Railroad and Public Utilities Commission, Fla., 47 So.2d 513, in which opinion the Court concluded that such an order was not reviewable by this Court on a direct appeal; however, in said case the Court also held that under Section 59.45, F.S. 1949, F.S.A., the Court had the authority to consider the appeal as a petition for writ of certiorari, concluded that the appeal should be so treated and ordered that the cause should proceed in accordance with the rules governing certiorari.
In the case at bar the appellant had filed its notice of appeal, assignments of error and directions to the clerk for making up the transcript of record with the commission prior to the rendition of the opinion in the Atlantic Coast Line Railroad Company v. U.S. Sugar Corporation and Florida Railroad and Public Utilities Commission, supra, but the motion here under consideration was filed with this Court prior to the time that any transcript of record was presented to the Commission for certification. It is our opinion, therefore, that the appeal herein should be considered as a petition for certiorari; that appellant should be and it is hereby, required to file in this Court instanter its transcript of the record of the proceedings before the Commission which appellant seeks to have reviewed and that appellant file in this Court its supporting brief on or before August 15, 1950. Thereafter this cause shall proceed in accordance with the rules pertaining to certiorari.
It should be understood that this opinion and judgment relates solely to the particular situation hereby presented and that it shall not be regarded as authority to institute, in the future, the review in this Court of orders of the Florida Railroad and Public Utilities Commission by the method of direct appeal.
It is so ordered.
ADAMS, C.J., and CHAPMAN, SEBRING and HOBSON, JJ., concur.