Rabin v. Conner

• Decision Date: 05 May 1965
• Docket Number: No. 33974,33974
• Citation: 174 So.2d 721
• Parties: Harold J. RABIN and R. E. Watson, Appellants, v. Doyle CONNER, as Commissioner of Agriculture of the State of Florida, Appellee.
• Court: Florida Supreme Court

Page 721

174 So.2d 721

Harold J. RABIN and R. E. Watson, Appellants, v. Doyle CONNER, as Commissioner of Agriculture of the State of Florida, Appellee.

No. 33974.

Supreme Court of Florida.

May 5, 1965.

Wilfred C. Varn, of Ervin, Pennington & Varn, Tallahassee, for appellants.

Earl Faircloth, Atty. Gen., Wilson Wright and Robert A. Chastain, Asst. Attys. Gen J. Ernest Webb, Wilton R. Miller, Tallahassee, M. W. Wells and Raymer F. Maguire, Jr., Orlando, for appellee.

O'CONNELL, Justice.

Appellants, Rabin and Watson, made application to the Florida Celery Advisory Committee for a temporary base quantity certificate to permit each appellant to produce and market 200,000 crates of celery during the 1964-65 season. Appellant Rabin received a temporary certificate permitting production and marketing of only 32,127 crates. Watson's application was denied.

Appellants then filed a complaint for declaratory decree in which they sought to have Chapter 573, F.S.1963, F.S.A., and Rule 7I-3, Rules of The Department of Agriculture, declared invalid and the Chancellor held that the statute and the rule were not unconstitutional or void as applied to the appellants and denied the relief sought. This appeal followed.

Chapter 573, F.S.A., originally enacted in 1959, is divided into three parts. We are concerned here only with Part I, entitled the 'Celery and Sweet Corn Marketing Law.'

In adopting this part of the act the legislature made extensive findings as to the problems facing the celery producers and the economic waste resulting therefrom. The legislature also declared the marketing of celery to be affected with a public interest and explained that the provisions of the subject statute were 'enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety and general welfare of the people of this state.' F.S. Sec. 573.02(3), F.S.A.

In Sec. 573.03 six purposes of the statute are set forth. What appears to be the basic purpose is stated as being 'to enable celery * * * producers * * * with the aid of the state, to correlate more effectively the marketing of their agricultural commodities, with market demands therefor.' The other purposes are stated to be: (1) to establish orderly marketing; (2) to provide for uniform grading and preparation for market; (3) to maintain present markets and develop new markets; (4) to eliminate or reduce economic waste in marketing and (5) to prevent, modify or eliminate trade barriers obstructing the free flow of celery to market.

Substantively the statute authorizes the Commissioner of Agriculture to regulate the marketing of celery through the issuance of marketing orders to be issued only upon approval by the number of handlers and/or producers prescribed in Sec. 573.11.

Among other things the statute, Sec. 573.17, provides that such a marketing order may contain provisions: (1) determining the existence of a surplus of celery, providing for its control and distribution, and equalizing the burden of its elimination, when necessary; (2) limiting the total quantity of celery which may be distributed or handled in the primary channel of trade (i. e., from the time of harvesting to time it leaves intrastate and enters interstate commerce) during any specified period; (3) allotting the quantity of celery which each handler may purchase from all producers; (4) allotting the quantity of celery which each handler may distribute or handle; and (5) allotting the quantity of celery which each producer may sell or have handled for his account. We do not list the other provisions permitted to be contained in a marketing order because they do not bear directly on the decision of this case.

As can be seen from the foregoing paragraph, the regulation of the celery segment of the agricultural industry in Florida is authorized to be accomplished, not by regulating the quantity of celery which may be produced, i. e., grown, but rather by controlling the quantity with may be marketed, i. e. placed in intrastate commerce, in the state in any prescribed period. This control may be exercised in one or more of three ways. First, the marketing order may prescribe the number of crates that each producer or grower may harvest and sell to or have sold by a handler. Second, it may prescribe the number of crates that each handler may buy from or handle for the producers. Third, it may prescribe the number of crates that each handler may sell, distribute, or handle in intrastate commerce, i. e., place in the 'primary channel of trade.'

All of the terms used in this opinion are defined in the statute and are used in accordance with the statutory definition.

Following enactment of ch. 573 the Commissioner of Agriculture promulgated the marketing order, Rule 7I-3, which, as amended in 1962, is the order under attack here. Insofar as relevant here, this order did three things: (1) it established the celery growing seasons of the years 1960-61 and 1961-62 as the representative or base period to be used in determining the 'permanent base quantities' that would be allotted to the producers of celery; (2) it fixed permanent base quantities only for those persons who had grown celery during the representative period, 1960-61 and 1961-62, the quantities allotted being calculated on the amounts each produced during that period; and (3) despite the absence of statutory authority therefor, it provided for the award of 'temporary base quantities' to new producers, i. e., to persons who had not produced during the base period 1960-61 and 1961-62. These provisions will be described in greater detail below.

Appellants, Rabin and Watson, did not produce celery during the base period 1960-61 and 1961-62, and therefore did not qualify for permanent base quantity certificates. Appellant Watson, however, alleged that he had for 18 years grown, produced and marketed celery in South Florida.

As stated earlier each of the appellants applied for a temporary base quantity of 200,000 crates. Appellants were 2 of 17 applicants for temporary certificates, the requests totalling 1,395,000 crates. Temporary certificates, each for 32,127 crates, were issued to Rabin and 5 other applicants. The other applications were denied.

On this appeal the appellants contend that: (1) the marketing order is not in compliance with ch. 573 which authorizes its issuance; and (2) that the marketing order and the statute are both violative of both the Florida and United States Constitutions.

The first contention is easily answered in the negative. Subsequent to the promulgation of Rule 7I-3, ch. 63-123, which now appears as F.S. Sec. 573.28, F.S.A. was adopted by the legislature. This section of the statute affords to any marketing order issued pursuant to ch. 573 and in effect at the time of its passage a conclusive presumption of conformity with the statute unless found to the contrary by the Commissioner, which he has not done. For present purposes, at least, we consider this amendatory statute as virtually incorporating into ch. 573 all outstanding market orders, in the absence of contrary action by the Commissioner.

The attack on the constitutionality of the order and the statute is more difficult of decision. This assault is three pronged. It is argued: first, that both the statute and the order contravene the commerce clause of Article I, Section 8 of the Federal Constitution; second, that they constitute an unwarranted exercise of the police power of the state and therefore violate the due process and equal protection guarantees found in Sections 1 and 12, Declaration of Rights, Florida Constitution, F.S.A., and in the Fourteenth Amendment to the Federal Constitution; and third, that they constitute an unlawful delegation of legislative power.

Inasmuch as the issue for decision directly involves only the regulation of the marketing of celery by producers, we will limit our discussion to those portions of the statute and marketing order which affect producers of celery as distinguished from handlers. A brief study of that portion of the statute directly involved, Sec. 573.17(1)(d), will assist in pointing up the fatal defect which we detect in that subsection of the statute and in the marketing order.

As stated above, the main thrust of the marketing order was to allocate permanent base quantities to those who produced celery during the 1960-61 and 1961-62 seasons. Rule 7I-3.09(2). However, Section 7I-3.06(3) of the marketing order provides that the base quantities are to be 'based upon the current season's production or sales, or sales of such producers, to the end that the total quantity of such celery * * * so purchased from or handled * * * shall be apportioned equitably among all such producers.' Thus, it appears that the allotments of base quantities were not made on the basis prescribed in the marketing order itself, i.e., on a basis of current season's production or sales.

Prior to its amendment by Chapter 63-123, Laws of Florida, F.S. Section 573.17(1)(d) F.S.A., which authorized the regulation of production by allotments to producers, provided that such allotments were to be 'based upon the current season's production or sales, or sales of such producers,' the identical basis provided in Section 7I-3.06(3) of the marketing order. Chapter 63-123 then amended F.S. Section 573.17(1)(d), F.S.A. to read that allotments to producers were to be based (1) upon the amounts of celery placed in the...