Mayo v. Florida Grapefruit Growers Protective Ass'n (112 Fla. 117, 1933)

Order.

Upon consideration of the application of appellants for an order superseding the injunction order herein, it is considered ordered and decreed that the application for supersedeas be continued until September 12th, 1933.

And it is' further ordered that the decree appealed from be stayed, insofar as it applies to the packing or shipping or attempt to ship the fruit involved herein and insofar as it interferes with the statutory inspection activities of the appellants'.

It is so ordered.

Davis, C. J., and Whitfield and Buford, J. J., concur.

Order.

This cause having been duly submitted on oral arguments and briefs of the parties upon the merits of the appeal, and upon the application of appellants for an order superseding the injunction order appealed from, and it appearing that an order has' been heretofore entered in this cause ordering that the decree -appealed from be stayed insofar as it applied to the packing or shipping or attempt to ship citrus fruit involved herein and insofar as it interferes with the inspection activities of the appellants herein, which order expires' September 12th, 1933, it is now ordered that said stay order entered the 21st day of August, 1933, herein be continued herein until further order of this Court in the premises.

Ordered accordingly.

Statement.

Chapter 11844, Acts of 1927, as amended by Chapter 14485, Acts' of 1929, provides that it shall be a criminal offense for any person, partnership, association or corporation owning, managing, or tending and cultivating citrus groves or trees, to use arsenic, or any of its derivatives, or any combination, compound or preparation containing arsenic, as' a fertilizer or spráy, on bearing citrus trees, except when so ordered by the Federal Government, or State Plant Board, for the purpose of destroying the Mediterranean Fruit Fly. This Section, as a valid criminal statute, has been held constitutional by this Court. See L. Maxcy, Inc., v. Mayo, 103 Fla. 552, 139 Sou. Rep. 121; Ex parte Kilgore, 106 Fla. 723, 143 Sou. Rep. 610.

Section 2 of the Act above referred to, provides that it shall be unlawful for any person, partnership, association or corporation to sell, or offer for sale, transport, prepare, secure or deliver for transportation or market, any citrus fruit of any variety, which shall “contain” any arsenic, or any compound or derivative of arsenic, provided it does not come from within a quarantined area or is not fruit which has' been within a quarantined area for one year previous to time of the gathering of such fruit.

Section 4 of the same Act provides for a method of examination and seizure of any citrus fruit which, upon inspection and test pursuant to Chapter 10103, Acts of 1925 (now superseded by an Act passed in 1931) shows an abnormal and “excessively” high ratio of total soluble solids of the juice thereof, to the anhydrous citrus acid thereof, indicating the presence of arsenic therein, while Section 5 provides' for the official drawing of samples from the seized fruit for the purpose of making a chemical analysis of such samples to demonstrate whether or not the juice of the seized citrus fruit contains arsenic as suspected.

Section 6 of the Act provides that all citrus fruit “prepared” for sale or transportation, or which has been, or is being, delivered for sale or transportation, that may be shown by chemical analysis to contain arsenic, or any compound or derivative thereof, shall be destroyed by the inspector making the seizure, or by the sheriff of the county-where found, provided that the fruit shall be from an area otherwise than such as' may have been quarantined during one year from the time of gathering the fruit.

Chapter 10103, Acts of 1925, which is referred to by' Chapter number, in Section 4 of Chapter 11844, Acts of 1927, as amended by Chapter 14485, Acts of 1929, was an Act in pari materis with said Chapter 11844, as amended by said Chapter 14485. The Act of- 1925 prohibited the sale or transportation of citrus fruit that was immature or otherwise unfit for consumption. It effectuated this purpose by providing for the enforcement of such prohibition through the setting up in the Act of citrus fruit maturity tests based upon the total soluble solids of the juice of the fruit, considered in relation to a-specified ratio of total soluble solids of the juice thereof to the anhydrous citric acid found therein.

Chapter 14662, Acts of 1931, was a complete revision and re-enactment of all the regulations intended to be effected by Chapter 10103, Acts of 1925. The enactment of said Chapter 14662, Acts of 1931, being a complete revision and re-enactment of the entire subject matter dealt with by Chapter 10103, Acts of 1925, accordingly repealed the last-mentioned statute, Chapter 10103, Acts of 1925.

Therefore the statute law relating to the required maturity tests for citrus fruits, the inspection and enforcement thereof, and prohibiting the use of arsenic, in connection with the production and marketing of such citrus fruits, was, on the date of the institution of the litigation involved in this appeal, such only as may be found in Chapter 11844, Acts of 1927, as amended by Chapter 14485, Acts of 1929, standing in pari materia with Chapter 14662, Acts of 1931.

The appeal herein is from an interlocutory order of the Circuit Court of Polk County, Florida, holding Chapter 11844, Acts of 1927, as amended by Chapter 14485, Acts of 1929, unconstitutional and unenforceable as applied to that particular kind of citrus fruit known and designated as “grape-fruit.” By the order appealed from, the enforcement of Chapter 11844, Acts of 1927, as amended by Chapter 14485, Acts of 1929, was enjoined in its entirety insofar as its enforcement against grapefruit was concerned.

The present consideration of this case is upon an application by appellants for a supersedeas of the order of the Circuit Court of Polk County. In connection with the hearing upon this application for supersedeas, the case has been also duly argued and submitted by the parties hereto for determination of the merits' of the appeal.

Judgment on Appeal.

Per Curiam.

This cause having been argued and submitted for the consideration of the Court on the transcript of the record and the briefs filed, and it appearing that in this cause Mr. Chief Justice Davis, Mr. Justice Whitfield and Mr. Justice Terrell are of the opinion that the decree appealed from should be reversed, with directions to dismiss the bill, for the reasons stated in an opinion concurred in by them this day filed, and it further appearing that Mr. Justice Ellis, Mr. Justice Brown and Mr. Justice Buford are óf the opinion that the decree appealed from should be affirmed, for the reasons' stated in the several opinions, prepared by or concurred in by them, this day filed, and it appearing that the order appealed from is an interlocutory order, granting an injunction until the final hearing of the cause in the court below, and not a final decree amounting to a conclusive adjudication of the pending suit in the court below, it is thereupon considered, ordered and adjudged by this Court that an order be now entered in this cause forthwith vacating the partial order of supersedeas heretofore granted herein, and that the order appealed from, insofar as it grants a temporary injunction, but only insofar as it grants an injunction, temporary in character, be affirmed, but without prejudice to reconsideration of the question of the constitutionality of the statute or of its application, as1 brought in controversy on this appeal, which question of the constitutionality of the statute and of its application, as applied to this case, is not at this1 time finally adjudged or decided on this appeal.

Let this order be entered and the mandate of this Court be issued in due course, accordingly.

Davis, C. J., and Whitfield, Ellis, Terrell, Brown and Buford, J. J-,.concur.

Davis, C. J.

In recently decided cases this Court has definitely held that Chapter 11844, Acts of 1927, as amended by Chapter 14485, Acts of 1929, is a valid exercise of legislative power. L. Maxcy, Inc., v. Mayo, 103 Fla. 552, 139 Southern Reporter 121; Ex Parte Kilgore, 106 Fla. 723, 143 Sou. Rep. 610. The same conclusion has likewise been reached in a late case decided by the Federal Courts. Kilgore v. Mayo, 54 Fed. (2d) 143.

That a police regulation, valid when made, may become, by reason of changed conditions affecting the s'ubject of it, so arbitrary and confiscatory in operation dr application, as to be capable of being subsequently struck down by judicial action, though previously judicially reviewed and then held to be valid, is to be conceded. See Abie State Bank v. Bryan, 282 U. S. 765, 51 Sup. Ct. Rep. 252, 75 L. Ed. 690.

But in the case at bar, there is no showing in the record now before us, sufficient to bring the present attacks on the statute so recently held válid by this Court, as above indicated, within the rule of Abie State Bank v. Bryan, supra. This is so, because conditions affecting the subject upon which the statute was intended to operate, have not in any material aspect whatsoever changed in the interim of less than two years that has followed our previous decision holding the statute valid. And while it cannot be denied that the record now brought before the Court does show that much more is today known concerning the policy and wisdom of the statute as applied to grapefruit than was heretofore understood on that subject, such better understanding is not a “changed condition” such as was referred to in the Abie State Bank case, supra.

■ The injunction that has been granted in this case completely wipes the anti-arsenic-spray statute off the books insofar as grapefruit is concerned. By it the Commissioner of Agriculture is not only restrained from seizing and confiscating any grapefruit which, upon chemical analysis, he finds to “contain” arsenic, but the Commissioner and his-inspectors are further restrained from either eiiforcing or attempting to enforce “any” of the provisions of the Arsenical Spray Law (Chapter 11844, Acts of 1927 as amended by Chapter 14485, Acts of 1929) against the complainants, as to any grapefruit grown by them during the year 1933, now upon their groves. This precludes the right to inspect as well as the right to seize.

The injunction therefore forbids defendants to institute any criminal prosecution under Section 1 of the Act; permits shipments of grapefruit in contravention of Section 2 of the Act, although it may in fact be found to “contain” any quantity of arsenic; prohibits the Commissioner of Agriculture from inspecting any citrus fruit at any packing house or elsewhere, as authorized by Section 3; and in contemplation of law completely writes out of the statutory law any application of any provision of the Act to grapefruit, regardless of whether the grapefruit in question contains, arsenic, or not.

It is a well settled canon of constitutional law that before a comprehensive legislative Act can be struck down by the judiciary as being an arbitrary violation of personal or property rights guaranteed by the Constitution, it must be first construed, if possible, in such fashion that its validity can be saved by giving the statute such construction as will make it conform to the organic law. D’Alemberte v. State, 56 Fla. 162, 47 Sou. Rep. 489; Jacksonville v. Bowden, 67 Fla. 181, 64 Sou. Rep. 769, Ann. Cases 1915-D 99; Anderson v. Ocala, 67 Fla. 204, 64 Sou. Rep. 775, 52 L. R. A. (N. S.) 287.

It is also a well settled rule that the courts must uphold a statute unless it clearly appears beyond a reasonable doubt that it is unconstitutional. Stewart v. DeLand, etc., Road & Bridge District, 71 Fla. 158, 71 Sou. Rep. 42.

Another rule is that a statute is not presumed to contemplate an unreasonable exercise of the authority conferred on officers by it, particularly when material property and personal rights are involved. Willis v. Special Road District, 73 Fla. 446, 74 Sou. Rep. 495; Getzen v. Sumter County, 89 Fla. 45, 103 Sou. Rep. 104.

There is no doubt, as a matter of constitutional law, that a police regulation in the form of a statute, may be inquired into by the courts, even to the extent of their taking testimony for the purpose of demonstrating its wholly arbitrary and unreasonable character, when the purpose of the inquiry is to have a statute judicially declared unconstitutional in application, though fair and valid on its face. Weaver v. Palmer Bros. Co., 270 U. S. 402, 46 Sup. Ct. 320, 70 L. Ed. 654; L. Maxcy v. Mayo, supra.

But it is equally well settled, as a rule of constitutional law, to be observed in the decision of cas'es of the character last mentioned, that a mere preponderance of the evidence, or of other evidentiary considerations, is not sufficient to warrant the declaration by the courts that a statute, though fair on its face, is unconstitutional in its practical operation, because the rule is, that in order to declare any statute unconstitutional, it must be found so by the courts beyond any and all reasonable doubt. Martin v. Dade Muck Land Co., 95 Fla. 530, 116 Sou. Rep. 449.

In view, therefore, of the obvious importance of this' litigation to, the State, and because of the property interests of a large number of grapefruit producers who may be hurt by the challenged statute, if it be declared valid, but without first stating the construction which must be placed upon it in order to remove any doubt on the score that it is unconstitutional, it is advisable that the statute be first judicially construed before the objections to its constitutionality are ruled on by this Court.

The object of the statute, as expressed in its title, is to prohibit under penalty of criminal prosecution, as' well as forfeiture of the adulterated citrus fruit, the sale or transportation of citrus fruit found to “contain” arsenic.

But since arsenic is one of the common elements of the earth, such as is hydrogen, gold, iron, silver and the like, and is therefore likely to be found in more or less tangible form in the natural state of all fruits and other articles of food, wherein it performs a useful service by supplying what is needed of that element to round out the functions of nature in. its ordinary processes, it is obvious that the prohibition of the statute is not directed at citrus fruits which have come to a state of ordinary maturity containing a detectable, but normal, trace of the arsenic element as it is produced in nature.

On the contrary, the statute is aimed at the practice of producing in the citrus fruit, through artificial means, such as the use of arsenic for spraying, dusting, fertilizing and the like, an unusual and abnormal amount of insidious arsenic, such as is commonly known to science to result from the applied drug, when deliberately employed on the citrus trees' to produce chemical reactions in the fruit thereof, that would not otherwise occur in a state of nature.

That arsenic is. a metallic poison, having lethal propensities when taken into the human system, and that its use on, or in connection with the production of vegetables and fruits' for human consumption, is commonly feared as a possible source of poisoning producing injury or death when improperly used, is a fact of which this Court takes judicial notice.

This' Court must likewise take notice of the fact that the production and sale of citrus fruits, in the growing of which arsenic has been artificially applied for the purpose of bringing about an abnormal change in the natural composition of the edible portion of such fruit, is a practice tending to depreciate not only the quality of the fruit so produced, but is one that has an inevitable tendency toward injuring the fruit’s' good reputation as being fit and wholesome for the ordinary purposes for which citrus fruits are commonly marketed and sold.

Accordingly an Act of the Legislature enacted for the purpose of suppressing the production and marketing of that kind of citrus fruit whose reputation will be, when offered for sale in the markets, that it is not a naturally grown product of the citrus tree, but is a counterfeited one, the chemical analysis of the edible portion of which discloses the presence therein of a detectable amount of insidiously induced arsenic (a known and commonly feared poison) is’ well within the police power of the State as an appropriate legislative measure for the protection of the good reputation of the Florida citrus industry in the markets of the nation. It is likewise one that may be sustained as having some reasonable relation to the preservation of the public health, safety and welfare of the consuming public.

To sustain such an Act of the Legislature as a valid police measure, it is not essential that it be supported by a legislative finding that the necessity for the Act arises out of the fact that the inhibited article of commerce will be actually poisonous to the consumer in use.

Such an Act may be predicated upon the common knowledge of the Legislature that without a law against the practice, some growers will attempt to produce and market a fruit that will subject the whole citrus industry to harmful suspicion that, through the manner of its cultivation, a substantial portion of the output has been made to contain a demonstrable quantity of insidious poison artificially brought about in the edible portion thereof. Thus, on grounds of promoting the general welfare alone, the Legislature may prohibit any harmful practice whose tendency is to engender such fear and distrust in the minds of the buying public that it will likely refuse to purchase at all, any fruit produced in the State where such manner of cultivation is known to be a permissible practice. And when general indulgence in such injurious manner of cultivation is found, its existence will warrant the Legislature in adopting and enforcing, as a means of obviating the harmful effects thereof on the industry, a complete system for inspecting and eliminating at the source of supply, all such fruits as may, upon appropriate chemical analysis, be found to “contain” a demonstrable quantity of an applied poison (such as arsenic) even though the fear of the consuming public may be greatly exaggerated or wholly unfounded as to the injurious consequences of consuming the fruit in question.

. And so .it is' also, that the Legislature must be acknowledged the power under the circumstances just stated, to discourage any practice that tends toward the bringing about of such conditions affecting an industry. This it may lawfully accomplish by entirely forbidding acts which it finds impossible to control by regulation.

So the present statute now being considered must be construed as having for its object (1) the suppression of the practice of using arsenic in the cultivation of any kind of citrus fruits, because of the known propensity toward abuse of it when use of arsenic is permitted without supervision, and (2) the giving of an assurance to the buying public that, by a system of State inspection and elimination at the source of supply, no citrus fruit “containing” insidious arsenic, artificially induced therein in a detectable quantity capable of being demonstrated by chemical analysis, will be allowed to be either sold or transported for sale, to the consuming public. The circumstance that the application of the statute to particular localities may also incidentally have an adverse economic effect on the early marketing of citrus fruit produced in such localities, is a matter for legislative consideration as one of legislative policy, and is not a judicial question for the courts' to decide if the statute is otherwise an appropriate and constitutional exercise of the State’s police power to regulate the production and marketing of citrus fruits.

Section 1 of Chapter 11844, Acts of 1927, as amended by Chapter 14485, Acts of 1929, was intended to operate as a criminal statute. It is enforceable as such only because it appears to be judicially sustainable by this Court as a reasonable and necessary means of rendering effective the policy of the State to prevent the abuse of producing for the market immature and otherwise deficient citrus' fruit. By this section is sought to be discountenanced the practice of using arsenic in fertilizer and sprays on trees to produce thereby a resultant condition in the citrus fruit thereof that enables' it to evade an established test of maturity designed to test the ripeness of the fruit in its normal condition, uninfluenced by the chemical reaction of arsenic applied to the trees for the purpose of creating in the fruit an ostensible state of maturity that the latter does not truly possess.

Section 1 relates to the initiatory marketing procedure involved in the cultivation of the citrus trees for purposes of production of citrus fruit for market, as distinguished from any possibly discernible effect in the citrus fruit itself. Whenever a violation occurs under Section 1 of the statute, it is complete at the time any arsenic, or its derivatives, is used as a spray or fertilizer on- the bearing citrus trees themselves.

The theory on which the validity of Section 1 has been sustained.as a valid police regulation is that even though spraying citrus' trees with arsenic, or using it as a fertilizer in reasonably small quantities, may in many instances be •innocuous in itself, and even beneficial in effect on the trees or fruit when moderately done, nevertheless the impracticability of regulating such us'e, so as to- keep it restrained to a safe degree, has been found to be so great that an absolute prohibition of the practice must be resorted to by the State Legislature as a means of obviating the opportunity for the carrying on of the evil practice of excessive arsenation that had been found by the Legislature necessary to be suppressed for the public welfare. The rule is well settled that in such cases altogether innocent practices may be constitutionally prohibited as a means of breaking up a generally recognized evil practice that has been found to be reasonably susceptible of suppression by no other practicable method. L. Maxcy, Inc., v. Mayo, supra, and cases cited therein.

But Section 2 of Chapter 11844, Acts of 1927, as' amended by Chapter 14485, Acts of 1929, deals with a different situation. Under that Section, the prohibition is not so much against the practice of using arsenic on bearing citrus trees (which conceivably may or may not be an evil, depending on the kind of fruit, the degree of use and the duration of the practice) but is' to take effect against an ascertainable result, namely, the presence of unnatural arsenic in analytical quantities in the edible portion of the fruit itself, when such fruit is tested according to the standards and methods of procedure set up by Sections' 4, 5 and 6 of the same statute.

Under Section 2 it is unlawful for one to sell, offer for sale, transport, prepare, secure or deliver for transportation or market, any citrus fruit of any variety (which includes grapefruit)' that shall “contain” arsenic, or any compound or .derivative of ars'enic. That the State may lawfully prohibit the disposition of an article intended for human consumption, containing deleterious chemical substances, whether poisonous or not, is amply sustained by authorities. Such action may be taken not only as a permissible health measure, but also as a police measure for preventing frauds', deceptions and impositions from being practiced on the buying public. State v. Layton, 160 Mo. 474, 61 S. W. Rep. 171 (alum in baking powder); Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253 (butter and cheese substitutes); Capital City Dairy Co. v. Ohio, 183 U. S. 238, 22 Sup. Ct. 120, 46 L. Ed. 171 (harmless coloring matter in butter and cheese); People v. Price, 257 Ill. 587, 101 N. E. Rep. 196, Price v. People of the State of Illinois, 238 U S. 446, 35 Sup. Ct. 892, 59 L. Ed. 1400 (prohibiting boric acid in food products).

But under Sections 2, 4, 5 and 6, before a seizure and confiscation of alleged arsenated fruit can be lawfully accomplished, the edible portion of the alleged contraband citrus fruit must, upon a chemical analysis thereof made as’ prescribed in the statutes, be found to “contain” arsenic, or. some compound or derivative of arsenic, not normally occurring therein in a state of production where arsenic sprays or fertilizer have not been us'ed. The fact that the trees producing the fruit may be known to have been sprayed or fertilized with arsenic sprays or fertilizers in violation of Section 1 of the Act, may afford a ground for criminal prosecutions of the offending producers, but per se affords no ground for seizing and forbidding the shipment of such fruit, unles's the seized fruit itself discloses by chemical analysis that it does, in fact, “contain” arsenic in the sense of that term as used in the law.

The purpose of this portion of the statute is to give the consuming public the assurance, by means of an adequate s'ystem for examination and policing of the fruit at the source of supply, that Florida citrus fruits, as actually placed in the channels of trade and commerce, shall not “contain” any arsenic capable of being demonstrated by actual chemical analysis of the edible portion thereof. Such statutory purpose is' as fully served if the fruit of sprayed trees is actually made to pass the prescribed arsenic test, as if such trees had never been sprayed at all. This is so because the actual condition of the fruit when offered for transportation and marketing at the point of inspection is what fixes the criterion for applying Section 2. Section 1 is adequately enforceable by ordinary criminal prosecutions of the offending parties.

In Kilgore v. Mayo, 54 Fed. (2nd) 143, the holding of the Federal Court was that due process of law was not denied by the procedure set up for inspection, seizure and destruction of alleged contraband fruit, because of the requirement of the statute that the fruit, after seizure, be held by the Commissioner of Agriculture, or other seizing agency, a sufficient length of time thereafter to permit of judicial review of the act of seizure before confiscation ens'ued. Stated another way, this is in effect an authoritative holding that in every case of actual stoppage or seizure of citrus fruit on the charge that it has been found to “contain” arsenic, the owner is entitled to seek and to have the benefit of a judicial review of the Commissioner’s findings on that score, and to have judicially determined in appropriate proceedings prior to confiscation, whether or not the fruit involved is, or is not, justly subject to condemnation. And on that issue the owner would be permitted by the court trying the case, to ofifer countervailing evidence of analyses made by his own experts to rebut adverse findings arising from chemical analyses made by agents of the State.

So the constitutionality of the statute is adequately safeguarded by confining the operation and effectiveness of Section 2 thereof, to those cases wherein it is established that the citrus fruit sold, transported, prepared, secured, or delivered for transportation, or market, does “contain any arsenic, or any compound or derivative of arsenic.” If it does not, Section 2 of the statute cannot be applied to it. If it does, the owner has no ground for complaint, because, as has been pointed out, the State may constitutionally prohibit fruit containing drugs deemed by the Legislature to be deleterious, from being marketed or sold to the detriment of the reputation of the citrus industry, or in jeopardy of the public health, Safety and welfare.

The fact that Section 1 of the statute may have been violated, as has been pointed out, may afford ground for a criminal prosecution. But in and of itself, the mere violation of that section presents no ground per se for the seizure and destruction of the resultant fruit, since Section 2, construed in connection with Sections 4, 5, and 6, controls the latter subject.

But this is not to say that the Commissioner of Agriculture, and his agents, may not, when made aware of violations of Section 1, more rigidly inspect and apply at the packing house or other established inspection point, the authorized arsenic tests to fruit picked from unlawfully sprayed trees. Such tests are provided for as a part of the procedure for enforcing Section 2. Only by so executing the law, can it be made certain that citrus fruit attempted to be marketed or sold, actually contains no arsenic of the character denounced by the statute prohibiting such fruit from being transported and disposed of.

. Summed up, Section 2 of the statute, as it should be construed by this Court, undertakes to prohibit the marketing or attempting to market grapefruit, as well-as other citrus' fruit, which is found to “contain” arsenic to a degree demonstrable by a chemical analysis of the edible portion thereof.

Whether the prescription of such an inhibition results in unfair treatment to certain growers of that fruit, as compared with others more favorably situated as to soil, climate and the like, may give rise to a serious question of legislative policy, but not to a justiciable one. With the wisdom or policy of legislative acts the courts have nothing to do, unless vested rights are plainly impaired, or the equal protection of the law is denied.

It is true that the statute on its face provides that in cases of quarantine, where insect pests must be controlled by the use of arsenic sprays, that such use may be legitimately (and we presume safely) employed. It is also evident that the resultant fruit is' permitted to be marketed without any supposed injury to the industry, the public- health or the general welfare.

But it is only in cases of quarantine that any such exception is made. And this is no doubt done because of the obvious necessity of the case. It is probably countenanced during a period of quarantine only because of the fact that use of the arsenic during a quarantine period is usually subject to the constant supervision of the State and Federal authorities who are thereby enabled to prevent and avoid those abuses' which the Legislature has found have a tendency to follow where no such vigilant supervision can be maintained.

There is nothing in the record in this case which would warrant the Court in holding the statute, as must be construed by it, not constitutionally applicable to grapefruit as well as to other citrus fruit. The very able opinion of the Chancellor holding to the contrary was probably arrived at upon a less liberal construction of the statute than this opinion has placed upon it. This is a class suit wherein the whole Act has been attacked and held void in its entirety as applied to grapefruit. Any alleged abuses or usurpations under color of the statute are not here involved, although it has been asserted in argument that broader powers are being claimed by the Commissioner of Agriculture than. the statute warrants.

If any abuses or usurpations are in due course of pro-' cedure by a proper bill in equity charged and sustained, nothing that has been said is to be construed as barring-the Chancellor from hereafter considering on such separate' bill, and affording to the complainants adequate redress' thereon, by injunction or otherwise. Nor is anything herein stated to be construed as a bar to any appropriate relief which may be sought to enjoin upon the officers of the State a proper compliance with the terms of the statute-in-their cours'e of executing'- it, by staying within and not exceeding the proper scope of the powers conferred.

Whitfield and Terrell, J. J., concur.

Ellis, Brown and Buford, J. J., dissent.

Ellis, J.

(dissenting). — In August, 1933, The- Florida Grapefruit Growers’ Association, a corporation not for profit, organized under the laws of Florida, joined by certain' citizens of Polk, Highlands, Lake, Hardee, Pasco and Pinellas Counties, all owners of citrus groves in their respective counties, exhibited their bill in chancery in the Circuit Court for Polk County against Nathan Mayo, as Commissioner of Agriculture of the State of Florida, and Charles P. Davis, as Chief Fruit Inspector “under the Commissioner of Agriculture.”

The purpose of the bill was to secure an injunction against the Commissioner of Agriculture and Mr. Davis, as' Chief. Fruit Inspector, prohibiting them from attempting to enforce any of the provisions of the “Arsenical Spray Law” (Chapter 11844, Laws 1927, as amended by Chapter 14485, Laws' 1929) against the complainants, and against any grapefruit grown by them during the year 1933 and now upon their groves, and against other persons in the same class as complainants. The bill also prayed that the court decree the “arsenical spray law” and its amendment to be void and unenforceable. Attached to the bill as an exhibit there is a copy of a petition addressed to the Legislature of 1933 signed by forty-nine persons including representatives of corporations praying that the above mentioned statutes be repealed or amended so as not to be applicable to grapefruit. That petition shows that the number of boxes of grapefruit estimated for the season of 1932 and 1933 to be handled by the petitioners was more than twenty-eight million.

The defendants moved to dismiss the bill as to all the complainants' except the persons named as complainants from Polk County, the grounds being in the substance that the suit is local in character and may be maintained only in the county where the land and crops of grapefruit lie; that the court therefore has no jurisdiction of the “grapefruit” of any complainant alleged in the bill to lie without the County of Polk and therefore there was a misjoinder of parties complainant.

At the same .time the defendants interpos'ed an answer to the bill. The answer denied that the “question involved is of any common or general interest to any persons whatever, constituting a class or otherwise,” by which it was' probably meant that the enforcement of the statute as to grapefruit and the enforcement of the “rules and regulations” complained of in the bill would in no degree prevent Florida grapefruit from entering into full competition in the markets with such fruit from Texas and other States. The answer also avers that the grapefruit growers in the counties named do not represent 80 per cent of the producers of grapefruit in the State but constitute a “decided but contentious and troublesome minority among the grapefruit growers of Florida.” The answer avers that the legislation attacked by the bill has for its purpose the prevention of a “fraud being practiced upon the consumer, whether deleterious to his health or not, which prevention would in turn protect the reputation of the industry as a whole;” this, avers the answer, constitutes the “broader basis” for the statute than the prevention of the shipment of immature fruit which would be deleterious to the health of the consumers.

In paragraph 19 of the answer defendants contend that the application of arsenic in any quantity does not “actually stimulate the maturity of fruit,” but its use provides an “artificial means'” which “allows the fruit to pass a maturity test;” that Chapter 14485, Laws of 1929, “was purely an emergency measure to meet the crisis confronting the fruit growers of Florida as a result of the Mediterranean Fruit Fly campaign.”

In paragraph 23 of the answer the position seems' to be taken that the use of arsenic as a spray renders grapefruit injurious to the consumer and makes it unfit for consumption. It is' averred that the consumption in. sufficient quantities of grapefruit where the trees have been sprayed with arsenical spray “would cause to the consumer a toxic dose of arsenic” and “that the residual quantity of arsenic found in fruit grown upon trees' so sprayed is greater than the tolerance point fixed by the United States Government under the Pure Food Laws.” It is averred that the use of arsenic as a spray “renders grapefruit injurious to the consumer and unfit for consumption.”

The answer then proceeds to aver what other effects arsenical spray has upon grapefruit as follows: it “interferes with the sugar content, retards the formation of citric acid, reduces the total amount of sugars contained ín s'uch fruit, lessens or destroys vitamin ‘C’ content, reduces in volume the juice content of such fruit and renders the pulp dry and ricy and adversely affects the keeping qualities of such fruit both as to fresh and canned fruit.”

It is insisted that it is “utterly impossible to regulate the use of arsenic without an absolute and complete prohibition,” and that the Legislative determined by the enactment of the legislation attacked. It is supposed that this averment means' that the use of an arsenical spray does not necessarily injure -the fruit or produce in it a menace to the health of the consumer, if the use of the spray is guided by a reasonable discretion both as to. the arsenical content of the spray and the number of applications made to the trees, but the matter cannot be left to human dis'cretion so the Legislature prohibits the use of arsenic in a spray or in a. fertilizer absolutely.

As the answer undertakes by its averments to justify the Legislative wisdom in the enactment of the statute, I notice the above averment as one which amounts in substance to an admission that the reasonable use of fertilizers and sprays containing a negligible quantity of arsenic would not be injurious to the health of the consumer or deleterious to the fruit as an article of food value, but as in legislative wisdom “mankind is unco weak and little to be trusted” he cannot, even in the creation and development of Florida’s great -citrus industry, be trusted to use a spray for his' trees or a fertilizer for his land which contains a poison known as arsenic, because some men would use it in too great a quantity and too frequently, thus destroying the industry by ruining the fruit as a food and endangering the health of the public that consumes it. So an absolute prohibition of its use was necessary.

However, when the Federal Government, or the State Plant Board orders such fertilizer or spray to be used to destroy the Mediterranean Fruit Fly such legislative wisdom is suspended and fruit within the quarantined area may go forth to the market in jeopardy to the reputation of the fruit as an edible commodity, and the health of the people in whom a “toxic condition” may be produced from eating it and spraying with a preparation containing arsenic becomes no longer a violation of law. The answer avers that the use of arsenic in a spray is us'ed “in order to produce a fruit which will be so artificially treated as to pass a maturity test sooner than otherwise the lusciousnes's, sweetness, palatability, nutritious quality, taste and juice content are so lessened and virtually destroyed as' to create a definite prejudice against further fruits from Florida which are allowed to mature and ripen as nature intended.”

Thus it is argued that in placing grapefruit from trees sprayed by an arsenic spray or fertilized by an arsenical fertilizer upon the market at. the beginning of the season-“the market for the balance of the season is virtually destroyed because of the prejudice in the minds of the consumers,” regardless of the quantity of arsenic used in either spray or fertilizer and the frequency of its application. It is also averred that the continued use of an arsenic spray of any quantity over a long period of time, “to-wit: five years or longer, will result in the destruction of the treé upon which it is used.” It is also argued in the answer that if arsenical sprays used on citrus trees hasten the maturity of the fruit and increases its sugar content the growers in Texas' and other parts of the world “will promptly begin to use the same, and thereby get their fruit to market as much sooner than the Florida fruit as is now possible.”'

In this argument the averred danger to health and the “toxic condition” produced in the consumer by such fruit, and the “prejudice in the minds of consumers” against fruit the trees of which have been so treated, seems to have been lost, because it is not reasonable to say that if such conditions result to the popularity and marketability of grapefruit the trees' from which have been sprayed or fertilized with a spray or fertilizer containing “arsenic or any of its derivatives,” that other growers in other parts of the world would follow the example of the “contentious and troublesome minority” which is represented in this cause.

It is also averred that the “root stock” used in producing grapefruit is as essential to good fruit as “soil or climate,” and that the Texas growers use a “lime stock instead, of a sour orange stock,” which is ordinarily employed in Florida, and that it is not necessary therefore to use an arsenical spray on grapefruit trees to enable the Florida grower to compete with the Texas grower. It is also averred that the use of arsenic in sprays and fertilizers for grapefruit trees is done for the sole purpose of overcoming the tests which have been devised to “determine when fruit is fit for consumption so as to protect the market as a whole.” It seems to be averred that such tests are “based upon the natural process of nature, essential to produce fruit of proper quality.” The answer contains' a lengthy account of the transactions of the Legislature of 1933 relating to a proposition pending before it to amend or repeal the statutes in controversy. The answer admits that it is the intention of the Commissioner of Agriculture and the Inspector “to enforce the laws regarding this matter by seizure and destruction, which shall be carried out in exact accordance therewith,” and denied that in so doing the constitutional rights of the ■complainants will be in any wise impaired or denied to them, or that interstate commerce will be impeded thereby.

The answer contains a motion to dismiss the bill of complaint on the ground that it is without equity and that the statute attacked is valid, and other grounds.

The cause came on to be heard, on bill, anstver, motion to dismiss, and certain exhibits filed before the Chancellor numbered from one to thirty-seven complainants’ exhibits, and one to thirty-seven defendants’ exhibits. The Chancellor granted the preliminary injunction prayed for by the complainants. The defendants entered an appeal from that order to the Supreme Court.

I have given a somewhat lengthy narrative of the averments of the answer to show the nature of the defense interposed to the relief sought.

The bill alleges in substance as grounds for the relief prayed that the complainants are grapefruit' growers in Florida, and had, at some time during the progress of the present crop of grapefruit to maturity, either fertilized the ground upon which the trees grew or sprayed the trees bearing the fruit with fertilizers or sprays containing arsenic.

The complainants attack the validity of Chapter 11844,. Laws 1927, as amended by Chapter 14485, Laws 1929, supra, and secondly that the attempted application of it to the complainants and their property consisting of grapefruit, the trees bearing which have been sprayed with a preparation containing arsenic in a reasonable proportion to the bulk of the spray used and at reasonable intervals, is unlawful because it would deny to complainants rights secured to-them by the Constitution of Florida, it would be an arbitrary .invasion of private property, have no reasonable relation to the legitimate public purpose to be accomplished by the Act, and would be an unreasonable interference with private business.

It may be well to consider the history of the legislation attacked in which there may be discovered the motive for its enactment and the end to be attained, which to be valid must bear a reasonable rélation to the public purpose sought to be attained and not a forced or strained relation, and that the interests of the public generally require the interference with the industry which the Act contemplates.

The citrus industry, if that term is applicable to the production of fruit for the market, has become a very large one in Florida. Many thousands of people are employed in it in one capacity or another, and many millions of boxes of fruit are disposed of in the market to consumers in Florida and to consumers in other States. By far the larger part of the crops is disposed of in interstate commerce to the people of other States. The producers of such fruit in this State are not without their competitors in Texas, California and Puerto Rico. Due to differences in climate and soil, and possibly to a lack of legislative restrictions in the matter of the cultivation of the fruit in other countries or States, the growers in Texas, California and Puerto Rico succeed in getting their fruit into the market of the United States a few weeks earlier than the fruit in Florida matures by processes of nature unaided by artificial means.

The assumed danger to the consuming public in the matter of health, and the possible resultant danger to the so-called industry by flooding the market with immature and unwholesome fruit, led to the enactment of a law forbidding the shipment of immature fruit deleterious to health. See Chapter 6236, Acts 1911.

That Act was attacked in Sligh v. Kirkwood, 65 Fla. 123, 61 South. Rep. 185, as being repugnant to interstate commerce regulations. The Act. carried a penalty by fine and imprisonment, or both, for violating the provisions of the Act. The Act was upheld as being within the police power of the State in that it dealt with deleterious immaturity of fruit, and that it was not an infringement of interstate regulations of commerce as Congress had not by any congressional Act entered the particular field prohibiting or regulating the shipment of immature fruit. The Act was upheld as being in obedience to the police duty and power to protect the public health.

The case was considered by the Supreme Court of the United States. See Sligh v. Kirkwood, 237 U. S. 52, 35 Sup. Ct. Rep. 501, 59 L. Ed. 835. Mr. Justice Day delivered the opinion of the Court. In the course of his opinion he said: The single question presented is whether it is within the authority of the State to make it a criminal offense to deliver for shipment iii interstate commerce citrus fruits — oranges in that case which were “then and there immature' and unfit for consumption.” “It will be observed,” said the learned Justice, “that the oranges must not only be immature, but they must be in such condition as renders them unfit for consumption; that is, giving the words their ordinary signification, unfit to be used for food.” Italics supplied. Continuing he said, Of course, fruits of this character, in that condition, may be deleterious to the public health, and, in the public interest, it may be highly desirable to prevent their shipment and sale.”

The Court also held that immature fruit deleterious to health was not within the pure foods Act, although decomposed and putrid vegetable substances were. So it became established in Florida that the prevention of shipment not only in interstate commerce, but for local consumption of immature citrus fruit which was unfit to be used for food was a proper exercise of police power. The Florida case was decided by the Supreme Court of this State in February, 1913. Sligh v. Kirkwood, supra.

So in 1913 Chapter 6515 was enacted, without the approval of the Governor, which provided that oranges or grapefruit that contain less than 1.30% and 1.75% respectively of acid calculated as crystallized citric acid shall be considered mature, but if those fruits contained more than such proportions by weight of crystallized citric acid they shall be considered “immature and unfit for consumption,” but that oranges or grapefruit showing an “average on the trees of one-half color, indicating ripeness, shall be deemed to be mature and fit-for consumption” and may be sold without first being submitted to the acid test; that the enforcement of both Chapters 6236 and 6515 shall be under the general provisions, rules and regulations of the Pure Food and Drugs Law, Chapter 6122; Laws 1911. The Governor appointed the Citrus Fruit Inspectors under Chapter 6515, supra.

That Act was construed by this Court in the case of Moran v. LeJune, 78 Fla. 643, 83 South. Rep. 668. It was decided that the primary test of maturity was color, that the acid test was secondary and was not necessary where the oranges or grapefruit showed an average on the trees of one-half color. The Court said, when they meet the color test they will be deemed “mature and fit for consupmtion, and may be shipped or sold without being submitted to the acid test.” The Court observing that the “Legislature recognized another condition that nature sometimes delays the application of her paint brush until after the fruit are fit for consumption, and gave the grower an opportunity to show that condition by the acid test provided for in the statute.”

Sometime between the passage of the Act, Chapter 6515, supra, and the enactment of Chapter 10103, Acts of 1925, a practice of using arsenical sprays developed in some sections which had the effect of hastening the maturity of the fruit as indicated by color.

Chapter 10103, supra, was entitled “An Act to Prohibit the Sale or Transportation of Citrus Fruit That Is Immature or Otherwise Unfit for Consumption, and to Provide for Enforcement Thereof.” By express provision in that Act the term “Citrus Fruit” applied only to oranges ,and grapefruit. The Act prohibited the shipment or sale of citrus fruit between August 31st and November 26th unless the same was accompanied by a “certificate of inspection and maturity,” and between November 26th and August 31st, when inspection was not required, the transportation or sale of citrus fruit which was “immature or otherwise unfit for consumption” was forbidden.

This seems to be the first} effort to make by legislative fiat the word “immature,”, as applied to citrus fruit, synonymous in meaning with the phrase “unfit for consumption.” The Act provided for the so-called acid test for grapefruit and oranges. The ratio of total soluble solids of juice to anhydrous citric acid decreased as the percentage of soluble solids increased in the juice of the fruit. The Brix Hydrometer was required to be used to determine the total soluble solids and the acid to be determined by titration of the juice, using alkali and Phenolphthalein as the indicator.

Then the Legislature enacted Chapter 11844, Laws 1927, and in 1929 amended it by Chapter 14485. Under Chapter 11103 the Governor appointed the Inspectors upon the recommendation of the Commissioner of Agriculture. In 1927 the Act was amended by Chapter 11875. By the latter Act the Commissioner of Agriculture was empowered to employ the Inspectors.

In 1931 the Legislature enacted Chapter 14662, which is a revision of the entire subject relating to the sale or marketing of citrus fruits, (by that Act extended to tangerines) which are not mature in accordance with the maturity standards provided for in the Act. The Act provided that it should not apply to the sale or transportation of citrus fruit for the purpose of canning said fruit. Full provision is made by that Act for inspection of the fruit for maturity through the agencies of the Commissioner of Agriculture and standards are prescribed by the Act by which it may be determined when citrus fruit may be deemed to be mature. The Act empowers the Commissioner to make and promulgate rules and regulations for carrying out and enforcing the provisions of the Act. Thus complete facilities exist under the authority of that Act for the protection of the citrus fruit industry of the State against the placing upon the market of citrus fruits, oranges, grapefruit and tangerines which are immature acr cording to the standards prescribed by the Act and are in fact unfit for human consumption.

The reason for the enactment of Chapter 11844, Laws of 1927, and the amending Act, Chapter 14485, Laws of 1929, was the assumption that- an arsenic fertilizer used upon the ground where the trees are grown or arsenic spray used upon the trees bearing the fruit creates an unwholesome fruit unfit to be used as a food and deleterious to the health of the consumer. Such is obviously the purpose because the use of the arsenic spray or fertilizer is the gravamen of the offense, the basis for confiscation regardless of the mature or immature condition of the fruit and of the wholesomeness or unwholesomeness of the fruit as an article of food. The fruit may be mature and even meet the acid test prescribed by Chapter 14662, supra, and be wholesome as a food, but if the analysis by the chemist shows-the fruit to “contain arsenic or any compound or derivative of arsenic” the fruit “shall be destroyed by the Inspector making seizure of the same or by any citrus fruit inspector or by the Sheriff.”

Section one of the Act attempts to make unlawful the use of a spray or fertilizer except where ordered by the Federal Government or the State Plant Board for the purpose of destroying the Mediterranean fruit fly, and Section two attempts to make unlawful the sale or offering for sale, the transportation or delivery for market, any citrus fruit which shall contain any arsenic or any compound or derivative of arsenic except where the fruit comes from within a-quarantined area for one year previous to time of gathering fruit. Not only do the two sections in the use of the terms “citrus trees” and “citrus fruits” embrace the fruits described in Chapter 10103, supra, of which Chapter 11875, supra, is an amendment limiting the term “citrus fruit” to include only grapefruit and oranges, but they include all varieties of citrus trees and citrus fruits some of which, as the sour orange, are not used as food or included in the term marketable citrus fruits, though they may be transported, prepared for transportation or marketed. The two sections, therefore, are a mere dogmatic, arrogant, peremptory and unreasonable declaration against the use of arsenic or any of its derivatives in a spray or fertilizer to be used upon or about bearing citrus trees, or the sale or transportation of “any citrus fruit” which contains any arsenic or any compound or derivative of arsenic.

The validity of the two sections constitutes the basis for the other provisions of the Act which provide for the inspection of the fruit at any “packing house or other place where citrus fruit is being received or prepared for sale .and transportation,” and which vest in the- Inspector the power to test the fruit under the provisions of Chapter 10103, supra, an Act which was superseded by Chapter 14662, supra, and is not in force, and determine whether it shows “an abnormal and excessively high ratio of total soluble solids of'the juice thereof to the Anhydrous Citrus Acid thereof.”

The Act also vests in such Inspector, a person not required by the Act to possess any qualifications specially capacitating him for the employment, the power to seize and take possession of the fruit pending the procuring of a chemical analysis of the juice from samples of the fruit to be taken by him either from the packing house bins or elsewhere in the packing house, or from field boxes or vehicles delivering the fruit to the packing house, if, in his opinion, the preliminary test made by him shows “an abnormal and excessively high ratio of total soluble solids of the juice thereof to the Anhydrous Citrus Acid thereof.”

The Act also attempts to establish a rulfe of evidence which chemical analysis disproves, that is to say, it provides that an “abnormal and excessively high ratio of total soluble solids of the juice (thereof) to the Anhydrous Citrus Acid” indicates the presence of arsenic in the fruit juice. That rule is unfounded in fact or reason, because the juice of non-arsenated fruit contains a trace of arsenic and the juice of fruit from the trees which may have been sprayed with a reasonable quantity of arsenical sprays shows no appreciable trace of arsenic in excess of what is normally contained in unsprayed trees, and certainly no trace of arsenic whatsoever in excess of the normal content in the fruit from trees which have been fertilized with a fertilizer containing arsenic.

Sections 5, 8 and 9 of Chapter 11844, supra, were not amended by Chapter 14485, supra, Section 5 provides for the seizure of the fruit by the Inspector, the submission of the samples to a chemist to be designated by the Commissioner of Agriculture, and makes it the duty of such chemist so chosen to make, a chemical analysis of the samples of juice submitted to him and make his report thereof to the Inspector, who is required to release the fruit “if (the) said analysis shall show that the said citrus fruit contains no arsenic.” But the chemical analysis is bound to show even in non-arsenated fruit at least 0.00006 grains of arsenic per pound to 9.50 % of soluble solids. The Pure Food and Drug Act of the Federal Government fixes the limit of arsenic tolerance in fruit deemed to be wholesome and fit for consumption as a food at 0.02, according to the allegations of the bill in this case admitted by the motion to dismiss. Section 8 of the Act attempts to render it unlawful for anyone to obstruct the Inspector in the performance of any duty required to be performed by him; and Section 9 prescribes penalties for the violation of any provision of the Act.

The Act is, in my view, an attempted exercise of the police power of the State in placing an unreasonable and arbitrary limitation upon the right of an individual to manage and operate his private business and an unusual and unnecessary restriction upon a lawful occupation. It vests in an employee of a State official the power to exercise vexatious and unlawful discriminations under the pretext of enforcing the law; makes the destruction of large quantities of property dependent upon an employee’s reading of the report of a chemist of the State official’s choosing; prescribes an impossible method of determining the actual presence of arsenic in the fruit seized; establishes an arbitrary, unscientific and wholly undependable rule of evidence as to the presence of arsenic in the fruit seized; leaves the determination of the existence of an “abnormal and excessively high ratio of total soluble solids ‘of the fruit juice’ to the Anhydrous Citric Acid thereof” to the opinion of a person of no special qualifications or abilities for deciding such a question; requires a test according to the provisions of an Act which has been superseded by a later one prescribing different standards, and attempts to make the criminality of the use of an arsenical spray or fertilizer depend upon the will or caprice of a State Plant Board, or some Board or Agency of the Federal Government.

The case of L. Maxcy, Inc., v. Mayo, 103 Fla. 552, 139 South. Rep. 121, did not determine the constitutionality of the Act in its entirety, but upheld the validity of the provisions of Section One only so far as it applied to the spraying of citrus trees with a spray containing arsenic. As to the use of fertilizers the opinion vouchsafed some valuable advice to the Legislature for preventing the use of an arsenic element in fertilizer as applied to the soil. The reason for the suggestion seemed to be as expressed in the same paragraph, that if the statute be enforced to the extent it might be it would put a burden on a citrus grower to obtain a chemical analysis of all fertilizers proposed to be used by him on the soil around his citrus trees for fear that he might be sent t