Kilgore v. May

• Decision Date: 27 August 1931
• Citation: 54 F.2d 143
• Parties: KILGORE et al. v. MAYO, Com'r of Agriculture of Florida, et al.
• Court: U.S. District Court — Southern District of Florida

54 F.2d 143 (1931)

KILGORE et al. v. MAYO, Com'r of Agriculture of Florida, et al.

District Court, S. D. Florida.

August 27, 1931.

Hampton & Greene, of Ocala, Fla., for plaintiffs.

Cary D. Landis, Atty. Gen., for defendants.

Before BRYAN and SIBLEY, Circuit Judges, and AKERMAN, District Judge.

BRYAN, Circuit Judge.

This is a bill of complaint brought by several growers of citrus fruits against the commissioner of agriculture of the state of Florida and several other state officials, to enjoin the enforcement of an act of the Legislature passed in 1927 (Laws 1927, c. 11844), as amended in 1929 (Laws 1929, c. 14485), relating to the use of arsenic as a spray on bearing citrus fruit trees. It comes before us on an application, pursuant to 28 USCA § 380, for an interlocutory injunction.

The 1927 act provides that it shall be unlawful for the owner to use arsenic as a fertilizer or spray on his bearing citrus trees, section 1; or to sell or offer for sale any citrus fruit which shall contain any arsenic, section 2. The act of 1929 amends the above two sections and several others, but only to the extent of permitting the use of arsenic when ordered by the federal government or the state plant board for the purpose of destroying the Mediterranean fruit fly. It was enacted as a temporary measure to meet a great emergency, which happily has passed; and therefore it need not be further considered. The act of 1927 further provides that inspectors authorized by earlier legislation shall inspect fruit in a packing house or other place where it is being received for sale or transportation; that when any such inspector finds fruit which shows an abnormal and excessively high ratio of total soluble solids of juice to the anhydrous citrus acid thereof, indicating the presence of arsenic therein, he shall seize such fruit pending a chemical analysis of it and notify the manager of the packing house of such seizure; that the fruit must be held for ninety-six hours, during which time samples shall be analysed by a chemist designated by the commissioner of agriculture under regulations to be issued by him. If upon analysis the fruit is found to contain no arsenic, it is to be released; but if it is found to contain arsenic, it is to be destroyed. The act authorizes the commissioner to promulgate rules and regulations for carrying out and enforcing these provisions. Sections 3, 4, 5, 6, and 7; Compiled Gen. Laws 1927, §§ 3241, 3242, 3243, 3244, and 3245. A regulation adopted by the commissioner, which was in force long prior to this controversy, provides for analysis by a chemist of the inspection bureau and by a referee chemist in case of appeal to be agreed upon by the commissioner and the claimant of the fruit.

The Legislature of Florida in 1911 passed an act making it unlawful to sell fruit which was immature or otherwise unfit for consumption. Comp. Gen. Laws 1927, § 3220. In 1913 it required a certain percentage of citric acid before fruit could be shipped, or a showing of an average half color indicating ripeness. Id., § 3223. In 1925 it substituted for these loose, indefinite provisions specific ratios of total soluble solids to the anhydrous citric acid. Section 3228. Experience proved that these earlier tests were evaded by shippers who were anxious to get their fruit on the market early. One practice indulged in by some shippers was to subject their fruit to heat so as to bring it within the color test; but the most successful plan for defeating the purpose of keeping all except ripe fruit off the market was to use arsenic as a spray, which has the effect of preventing the development of citric acid, thus causing immature fruit to meet the test then prescribed by law.

It is the contention of complainan...