Corneal v. State Plant Bd.
| Decision Date | 23 January 1957 |
| Parties | Harry CORNEAL and Gertrude Corneal, his wife, Appellants, v. STATE PLANT BOARD, a Body Corporate Under The Laws Of The State of Florida, and Charles Poucher, Individually and As Agent For Said Board, Appellees. |
| Court | Florida Supreme Court |
Allen E. Walker and Tom B. Walker, Winter Haven, for appellants.
Richard W. Ervin, Atty. Gen., and Ralph E. Odum, Asst. Atty. Gen., for appellees.
This case has to do with the validity of a rule of the State Plant Board, appellee here, looking toward the control and containment of a citrus plant disease known as 'spreading decline'. In an injunction suit filed by the appellants to enjoin the State Plant Board from enforcing the provisions of the rule against them, the lower court held the rule to be valid. This appeal followed.
Spreading decline was first observed in citrus groves in this state in 1928. Preliminary investigation as to the cause of the disease was begun in 1935; however, it was not until 1953 that scientists employed by the University of Florida identified a burrowing nematode (Radopholus Similis) as the cause of the disease. This microscopic worm feeds on the feeder roots of citrus trees and eventually destroys much of the lower root system of the tree. The trees do not die, but poor foliage develops and the productivity of the tree is diminished, both as to the size and quantity of the fruit produced. Trees affected with the disease respond to extra applications of fertilizer and water, but there was evidence that trees affected with the disease are not commercially profitable under ordinary market conditions, whether specially treated or not. The burrowing nematode causing the disease travels underground from one tree to another at an average rate throughout the state of 1.6 trees, or 36 feet, per year. It may also be carried in the dirt on farm implements. There are indications that its movement is facilitated by sub-soil drainage. A past source of infection was from plantings of infested nursery stock, but this source is under control and has been eliminated as a future source of infection. The avocado tree and over one hundred ornamental plants and shrubs are 'host plants' to the burrowing nematode.
In 1955, the Legislature enacted Chapter 29878, Laws of 1955, Sec. 581.15, Fla.Stat.1955, F.S.A. finding that the Florida citrus industry 'is now faced with the most serious emergency it has yet encountered because of spreading decline, resulting from a burrowing nematode', and empowering the State Plant Board 'to join with the U. S. Department of Agriculture or to proceed independently in a program to control and eradicate, wherever possible, spreading decline * * *' The Act appropriated $1,756.300 for the use of the Plant Board 'in controlling spreading decline' and $90,800 for additional research on spreading decline. Pursuant to that Act and the authority contained in Section 581.02(10), Fla.Stat.1955, F.S.A. to 'declare a dangerous insect pest or disease to be [a] public nuisance as well as any plant or other thing infested or infected therewith or that has been exposed to infestation or infection and therefore likely to communicate same * * *', the State Plant Board on January 20, 1956, adopted Rule 53(A), declaring the burrowing nematode and each citrus and avocado tree or plant infested therewith to be a public nuisance, and each grove and nursery in which infested plants of avocado, citrus or other plants are found, to be the center of an infested and dangerous zone. The rule requires the removal and burning in the infested zone of all infested citrus and avocado trees or other plants located in the infested or dangerous zones 'plus the first four trees past the last visibly affected tree, or two trees past the last tree in the roots of which burrowing nematodes are found, or all host plants within fifty feet of the last known infested tree or plant, whichever is the greater distance * * *'. The rule further provides that, after the trees are removed and burned, the soil must be treated with D-D soil fumigant and 'said treated land must be kept free of host plants of said burrowing nematode for two years from date of treatment, except by special permission from the State Plant Board; provided, however, tnat control and research personnel, acting under the direction of the Plant Commissioner, may carry on such experiments with infested trees as the Plant Board may deem advisable, provided an adequate barrier is maintained around field experimental plots by application of D-D soil fumigant at the said rate for treating infested soil, such applications to be made no less often than six (6) months apart, as looking toward the control and containment of burrowing nematodes.'
The program of 'pull and treat', as it is called, was initiated by the Plant Board in September 1955, and at the time of the trial in July 1956 some 2,700 acres of citrus grove property had been pulled and treated.
At first the program was offered to the growers on a purely voluntary basis, with the grower signing a written release absolving the State from liability. In the Spring of 1956, however, the Plant Board initiated a compulsory program of pull and treat. The only evidence shedding any light on the reason for the change in policy is contained in the testimony of James T. Griffiths, production manager for a growers' association and a member of the so-called Spreading Decline Committee, a group of growers who studied the problem and made recommendations to the Legislature and the Plant Board. Mr. Griffiths testified that in the Spring of 1956 it was learned that federal funds would be available to supplement the state appropriation which, alone, was insufficient to complete the program, and at that time 'it was decided it should be a force program primarily to get the job done within the biennial which the Legislature made the appropriations for, and the program had to be stepped up faster than it was going at that time.' The total acreage planned to be pulled and treated (including the 2,700 acres already pulled and treated) was estimated to be 7,000 acres owned by an estimated 750 owners, according to the testimony of the Plant Commissioner's assistant in charge of the spreading decline program throughout the state. It was also shown that the total acreage of citrus grove property in this state is estimated to be 600,000 acres.
The appellants in the instant case own a seven-acre grove, containing 703 citrus trees. As applied to the property of the appellants, the 'pull and treat' program calls for the destruction of 197 citrus trees, although only 16 trees were found to be actually affected by the burrowing nematode. The position of the appellants is that there is actually no 'emergency,' as found by the Legislature; that the evidence shows that the 'barrier' method of containing spreading decline is as effective as the 'pull and treat' method and is so recognized by Rule 53(a) itself (quoted above); that, at least, the healthy trees in their grove are not a 'nuisance'; and that, in all the circumstances shown by the record, the provision of the Rule authorizing the destruction of these trees is a taking of property without compensation in violation of Section 12 of the Declaration of Rights of the Florida Constitution, F.S.A. and the Fourteenth Amendment to the federal constitution. Some contention is made by the appellants that they were denied due process of law; but in view of the fact that Sec. 581.04, Fla.Stat.1955, F.S.A. provides for a hearing as to the impact of any of the Board's rules and regulations and of the further fact that the appellants did not request a hearing, this contention cannot be sustained. But we think there is merit to their other contention, previously referred to.
While the police power is very broad in concept, this legislative power is fenced about by constitutional limitations, and it cannot properly be exercised beyond such reasonable interferences with the liberty of action of individuals as are really necessary to preserve and protect the public health, safety and welfare. See Eelbeck Milling Company v. Mayo, Fla.1956, 86 So.2d 438. In enacting regulatory measures which protect but...
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