The order of the Railroad Commission dated February 23, 1948, in part, discloses the following:
"On February 4, 1948, this Commission held a public hearing on said application in Tallahassee, Florida, pursuant to Notice No. 1241, dated January 13, 1948, for the purpose of hearing all interested parties and determining whether or not the authority sought is in truth and in fact properly classified as 'for-hire' carriage, as distinguished from common carriers, contract carriage or otherwise.
"At said hearing the following appearances were entered:
"John G. Baker, 402 Metcalf Bldg, Orlando, Florida, for applicant.
"A. Y. Milam and Wayne K. Ramsey, 1200 Greenleaf Bldg., Jacksonville, Florida, for Florida Greyhound Lines, Inc., protestant.
"Clifford T. Inglis, 904 Barnett National Bank Bldg., Jacksonville, Florida, for Southeastern Greyhound Line, protestant. *Page 808
"A. Pickens Cole, 716 First National Bank Bldg., Tampa, Florida, for Tamiami Trail Tours, Inc., Glades Motor Lines and Georgia-Florida Coaches, protestants.
"Perry A. Nichols, 226 Shoreland Bldg., Miami, Florida, for Coast City Coaches, protestant.
"Jeff D. White, Duval Street, Tallahassee, Florida, for Modern Coach Company, protestant."
The Orlando Transit Company, having been unsuccessful before the Florida Railroad and Public Utilities Commission, filed in this court on 7 April 1948 a petition for certiorari to review the order of the commission denying its application for a "For Hire" permit under Section
In due course the matter was determined by an opinion written on behalf of this court by Chapman, J., filed 19 July 1948, and concurred in by THOMAS, C.J., and TERRELL and SEBRING, JJ. The time for filing having been extended, the petition for rehearing was filed 14 August 1948, and is now being circulated according to the practice of this court.
Long after the opinion of the court had been rendered, six petitions for "intervention," four of them by corporations which had appeared before the Railroad Commission and two of them by corporations which had not, were presented in this court. Parenthetically, three of these petitions were lodged after the petition for rehearing was filed by the respondent, and three of them before that date.
It is the sufficiency of these six petitions that we must now determine. It is immediately apparent that they fall into two important categories — those filled by corporations which were actually heard by the Florida Railroad and Public Utilities Commission and those filed by corporations which were not heard by the commission.
We shall dispose of them in inverse order.
This court has repeatedly held that no intervention will be allowed here. It is conceivable that an exception to this *Page 809
rule might arise in a proceeding originally instituted in this court, because the one seeking to be heard would not have theretofore had that opportunity. We have held that "to the extent that it involves the review of the proceedings of an inferior court certiorari is an appellate proceeding, but, to the extent that the subject-matter of the proceeding brought before the appellate court will not be reinvestigated, tried, or determined on the merits as on appeal or writ of error, it is an original proceeding." Atlantic Coast Line R. Co. v. Florida Fine Fruit Co.,
Aside from the question of delay on the part of those presenting the latter two petitions and their failure until after the filing of the opinion of this court on the merits to make any effort to be heard here as amici curiae, a matter which we shall later discuss, we do not think they could "intervene" here in a proceeding to review the order entered by the Florida Railroad and Public Utilities Commission.
We consider that the petitions of those who had been heard before the commission were not actually petitions to intervene, but simply requests to be heard here in the review of a proceeding in which they had participated.
We think that in all the circumstances they should have been heard, had their requests been seasonably made. We conclude that they were entirely too late when they waited until the case had been determined on its merits. Having actively participated in the proceedings below, they were put upon notice that a review of these proceedings might be sought in this court, and upon inquiry they could have determined when the petition for certiorari was presented here. We have no requirement that notice be given them, but the information was easily available. Upon close study we are convinced that this is not a harsh rule. By analogy when a litigant fails in a lower court he has only to file a notice of appeal in order to give the appellate court jurisdiction, and it is expressly provided that where the appeal is to the supreme *Page 810
court no actual notice of appeal shall be necessary. (Section 59.10, Florida Statutes, 1941, and F.S.A.) We cannot see where any greater burden would be placed upon the present petitioners to make inquiry about an effort to review an order of the commission in a proceeding like the instant one than is placed upon a litigant to inform himself whether a notice of an appeal from a judgment of a lower court has been filed in the clerk's office. This thought seems to coincide with the one expressed by this court in Great American Insurance Company of New York v. Peters,
We reiterate that had the petitioners who appeared as protestants before the Railroad Commission made timely request to be heard here, they would have been granted that opportunity, but that their delay has precluded them from now being heard. This conclusion, however, is without prejudice to any request they may make in the event the petition for rehearing now being circulated amongst the members of the court is granted.
Petitions denied.
THOMAS, C. J. TERRELL, CHAPMAN, SEBRING and HOBSON, JJ., concur.
ADAMS and BARNS, JJ., not participating.
