Mayo v. Florida Grapefruit Growers' Protective Ass'n

• Decision Date: 11 September 1933
• Parties: MAYO, Commissioner of Agriculture, et al. v. FLORIDA GRAPEFRUIT GROWERS' PROTECTIVE ASS'N et al.
• Court: Florida Supreme Court

151 So. 25

112 Fla. 117

MAYO, Commissioner of Agriculture, et al. v. FLORIDA GRAPEFRUIT GROWERS' PROTECTIVE ASS'N et al.

Florida Supreme Court

September 11, 1933

Oct. 2 1933.

On Rehearing Oct. 23, 1933.

En Banc.

Suit by the Florida Graperfruit Growers' Protective Association and others against Nathan Mayo, as Commissioner of Agriculture of the State of Florida, and another. From an interlocutory order holding Acts 1927, c. 11844, as amended by Acts 1929 (Ex. Sess.) c. 14485, unconstitutional as applied to grapefruit, and granting a temporary injunction defendants appeal.

Affirmed as to issuance of the temporary injunction, without prejudice to reconsideration of the question of constitutionality of the statute or its application.

On Petition for Rehearing. Appeal from Circuit Court, Polk County; H. E. Petteway, Judge.

COUNSEL

Cary D Landis, Atty. Gen., H. E. Carter and Robert J. Pleus, Asst Attys. Gen., Zewadski & Pierce, of Tampa, Milam, McIlvaine & Milam, of Jacksonville, and Grimes & Rowe, of Palmetto, for appellants.

Bryant & Trantham, of Lakeland, H. M. Hampton, of Ocala, and S. Whitehurst's Sons, of Brooksville, for appellees.

OPINION 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 12, 1933.

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

It is so ordered.

DAVIS, C.J., and WHITFIELD and BUFORD, JJ., 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 in so far as it applied to the packing or shipping or attempt to ship citrus fruit involved herein, and in so far as it interferes with the inspection activities of the appellants herein, which order expires on September 12, 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 (Ex. Sess.), 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 spray, 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 So. 121; Ex parte Kilgore, 106 Fla. 723, 143 So. 610.

Section 2 of the act above referred to (as amended by Acts 1929 [Ex Sess.] c. 14485, § 2), 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 (as amended by Acts 1929 [Ex. Sess.] c. 14485, § 4) 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 (as amended by Acts 1929 [Ex. Sess.] c. 14485, § 5) 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, § 4, Acts of 1929 (Ex. Sess.), was an act in pari materia 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 (Ex Sess.) 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, Fla., holding chapter 11844, Acts of 1927, as amended by chapter 14485, Acts of 1929 (Ex. Sess.), 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 (Ex. Sess.), was enjoined in its entirety in so far 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 of 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 case 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, in so far as it grants a temporary injunction, but only in so far 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, as 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 this 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, JJ., concur.

CONCURRING

DAVIS, Chief Justice.

In recently decided cases this court has definitely held that chapter 11844, Acts of 1927, as amended by chapter 14485 Acts of 1929 (Ex. Sess.), is a valid exercise of legislative power. L. Maxcy, Inc., v. Mayo, 103 Fla. 552, 139 So. 121; Ex parte Kilgore, 106 Fla. 723, 143 So. 610. The same conclusion has likewise been reached in a late case decided by the federal courts. Kilgore v. Mayo (D C.) 54 F....