Kilgore Groves, Inc. v. Mayo

• Decision Date: 01 August 1939
• Citation: 139 Fla. 874,191 So. 498
• Parties: KILGORE GROVES, Inc. v. MAYO, Commissioner of Agriculture.
• Court: Florida Supreme Court

191 So. 498

139 Fla. 874

KILGORE GROVES, Inc. v. MAYO, Commissioner of Agriculture.

Florida Supreme Court

August 1, 1939

Rehearing Denied Oct. 24, 1939.

En Banc.

Suit by Kilgore Groves, Inc., against Nathan Mayo, as Commissioner of Agriculture of the State of Florida, for an injunction to restrain defendant from seizing and destroying certain oranges, from interfering with the sale of the fruit and from illegally obtaining evidence of purported violation of Acts 1925, c. 10103. From a final decree dismissing the bill of complaint, the complainant appeals.

Affirmed by divided court.

On Petition for Rehearing. Appeal from Circuit Court, Pinellas County; T. Frank Hobson, judge.

COUNSEL

S Whitehurst's Sons, of Brooksville, and Dickenson &amp Dickenson, of Tampa, for appellant.

George Couper Gibbs, Atty. Gen., H. E. Carter, Asst. Atty. Gen., and William C. Pierce and Mabry, Reaves, Carlton & White, all of Tampa, for appellee.

OPINION

PER CURIAM.

In this cause Mr. Chief Justice TERRELL, Mr. Justice CHAPMAN and Mr Justice THOMAS are of opinion that the decree of the Circuit Court should be affirmed, while Mr. Justice WHITFIELD, Mr Justice BROWN and Mr. Justice BUFORD are of opinion that the said decree should be reversed. When the members of the Supreme Court, sitting six members in a body and after full consultation, it appears that the members of the Court are permanently and equally divided in opinion as to whether the decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the decree should be affirmed; therefore it is considered, ordered and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the decree of the Circuit Court in this cause be and the same is hereby affirmed.

Affirmed.

TERRELL, C.J., and WHITFIELD, BROWN, BUFORD, CHAPMAN, and THOMAS, JJ., concur.

CONCURRING CONCURRING

THOMAS Justice.

The appellant, complainant in the circuit court, has appealed from the final decree dismissing its bill of complaint praying for an injunction to restrain the Commissioner of Agriculture from seizing and destroying certain oranges, from interfering with the sale of the fruit and from 'illegally obtaining evidence of purported violation of the Arsenical Spray Law of Florida.'

The original bill of complaint was examined and discussed by this Court. Kilgore Groves, Inc., v. Mayo, Fla., 187 So. 256. Subsequently an amended one was filed and it was the allegations of this latter pleading that the chancellor held had not been substantiated by the testimony.

A resume of the averments follows: Oranges picked by appellant were seized by appellee whose duty it is to enforce Chapter 11844, Laws of Florida, Acts of 1927, as amended by Chapter 14485, Laws of Florida, Acts of 1929, Ex.Sess., known as the Anti-Arsenic Law. Appellant was notified by appellee's inspector that the fruit contained arsenic although it did not, according to the pleader, 'contain arsenic' in violation of said law, because the content of arsenic as 'might be found therein or thereon is only such amount as is found in all citrus fruits as a natural content thereof or is thereon in the form of a small arsenical residue that will naturally result from the use of common commercial limesulphur and copper-sulphate sprays universally used throughout the citrus industry of Florida'. When tested under the provisions of chapter 10103, Laws of Florida, Acts of 1925, the fruit did not "show an abnormal and excessively high ratio of total soluble solids of the juice thereof to the Anhydrous Citrus Acid thereof," Acts 1927, c. 11844, § 4, as amended by Acts 1929, Ex.Sess., c. 14485, § 4. The fruit is normal in taste and appearance. No arsenic has been applied to the trees from which the fruit was taken, nor was any added to fertilizer used in the production of the crop. The test of the product to determine whether or not the chemical was present was not by the use of the interior portion of the fruit but from the exterior or rind. The State chemist in making analyses of fruit in his search for arsenic therein has fixed a tolerance of .00028 grains of arsenic per pound of thinly shaved peel without any 'basis in fact or authority of law'. After the seizure a referee chemist found upon examination that 'the ratio was absolutely normal in every respect.'

The answer in general brings to issue the above allegations and in it the appellee asserts that the allowance of .00028 grains of arsenic is uniformly followed as a means of enforcing laws of this character and has been adopted as a result of years of study. The socalled tolerance 'is well above any amount of arsenic which may appear in the fruit unless the same has been artificially applied.'

Upon motion of the appellant, the court directed one of appellee's inspectors to take, in the presence of a representative of appellant and a representative of appellee, specimens of fruit from the groves involved in this litigation and to deliver one half of each sample to an assistant State chemist and one half to a chemist in a laboratory in Tampa. These chemists were ordered separately to make tests to establish the ratio of the total soluble solids of the juice to the anhydrous citric acid by examining: (1) the thin peel; (2) the entire peel; (3) the peel after being cleansed by the methods used in preparation of fruit for sale; (4) the entire edible portion of the fruit after being washed; and (5) the entire edible portion of the whole fruit. Where the cleansed fruit was ordered examined it was also ordered that the cleansing solution be analysed.

Then followed the introduction of testimony which, transcribed, comprises more than five hundred pages which we have read. It shows exhaustively the experiences of the chemists who testified, including the State chemist, with reference to the reaction of arsenic on maturing fruit and the assimilation and distribution of the chemical through the leaf and root systems of the trees. Much of it, too, is devoted to the promulgation and application by the Commissioner of Agriculture of the rule referred to allowing a 'tolerance' of .00028 grains of arsenic per pound of unwashed peel.

The question we are to decide is the authority of appellee to destroy oranges where arsenic is present in the peel of the fruit in excess of the tolerance and again we are faced with a construction of Chapters 11844 and 14485, supra. It is urged by appellant that an 'abnormal and excessively high ratio of total soluble solids of the juice * * * to the anhydrous citrus acid thereof, indicating the presence of arsenic therein', must be shown before an analysis is justified, and that one of the deleterious effects, six in number, set out in the opinion in the case of L. Maxcy, Inc., v. Mayo, 103 Fla. 552, 139 So. 121, be established before appellee can resort to destruction of the fruit under the statutes.

Section 4 of the act does not make an examination of the suspected fruit, to ascertain the ratio of soluble solids to juice content, a prerequisite to a chemical analysis for the detection of arsenic, but provides that when from such a test of fruit at a packing house this ratio is abnormal, 'indicating the presence of arsenic', the inspector coming into possession of such information is duty bound to seize the questioned product and notify the person in charge. No fruit thus held may be retained more than ninety-six hours unless chemical analysis establishes the presence of arsenic. Another section of the act, six as amended, provides that all fruit, no reference being made to the edible portion as distinguished from the peel or 'rag', that is shown by chemical analysis to contain arsenic or its derivatives shall be confiscated. It should be borne in mind that section one prohibits the use of the substance or any of its derivatives in fertilizer or spray material on bearing citrus trees without any qualifications except to destroy the Mediterranean fruit fly.

There appears no necessity, when the whole act is considered and its purpose studied, for an inspector to further arouse any suspicion he may have of the presence of the prohibited chemical by an investigation of the ratio of solids to acid as a preliminary to a test to confirm or refute such suspicion. If he makes a chemical analysis to ascertain if any arsenic is present the result would certainly not be influenced by the ratio to which we have referred. Appellant's argument is plausible in the light of individual sections of the act, but is unsound when applied to the whole.

We cannot agree either that there was any responsibility on the part of the appellee to show one of the harmful effects enumerated in Maxcy v. Mayo, supra, 103 Fla. 552, at page 130 of 139 So. The law does not specify that one of these be established before confiscation, nor does the opinion indicate that. In discussing the act generally it was merely stated that to avoid such evils the law was enacted. This part of the decision is more clearly understood when read with the whole and particularly:

'It is established by the record that arsenical sprays, when applied to bearing citrus trees by dusting or spraying on the limbs and foliage, has an inevitable tendency to injuriously affect and injure the quality of the fruit produced. This is done by the action of the arsenic after it is absorbed into the tree. The result is invariably observed that fruit picked from citrus trees which have been subjected to frequent arsenical spraying appears in every respect like other citrus fruit of normal characteristics, but is in fact always inferior in taste and quality. It is demonstrated that this inferiority, so occasioned in the fruit, cannot be

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