State Ex Rel. Florida Portland Cement Co. v. Hale

• Decision Date: 12 October 1937
• Citation: 129 Fla. 588,176 So. 577
• Parties: STATE ex rel. FLORIDA PORTLAND CEMENT CO. v. HALE et al.
• Court: Florida Supreme Court

176 So. 577

129 Fla. 588

STATE ex rel. FLORIDA PORTLAND CEMENT CO. v. HALE et al.

Florida Supreme Court, Division A.

October 12, 1937

Rehearing Denied Nov. 12, 1937.

Original mandamus proceeding by the State of Florida, on the relation of the Florida Portland Cement Company, against A. B. Hale as chairman, and E. A. McColskey and others, as and constituting the State Road Department of the State of Florida. On motion to quash.

Motion denied.

COUNSEL

Whitaker Brothers, of Tampa, for relator.

Richard P. Daniel and Fred H. Kent, both of Jacksonville, for respondents.

OPINION

BUFORD Justice.

This is an original proceeding in mandamus. Alternative writ was issued on July 27, 1937, to which the respondents have filed demurrer, which will be considered as motion to quash. The purpose of the writ was to coerce the State Road Department of the state of Florida to comply with the provisions of Senate Bill No. 760, which became a law when it was filed in the office of the Secretary of State on June 5, 1937. We quote the legislative act in full, for the benefit of the bench and bar, as follows:

'An Act Providing for the Fixing of a Minimum Standard for all Cement Offerred for Sale, Sold or Used in the State of Florida and to Authorize and Empower the State Road Department of the State of Florida to Write Rules and Regulations for the Effectual Enforcement of this Act Providing for the Inspection of all Cement Imported and Brought into the State of Florida from any Foreign Country and Providing for an Inspection Fee to be Paid for the Inspection of all Cement Imported and Brought into the State of Florida from any Foreign Country and Offered for Sale, Sold or to be Used in the State of Florida; Providing Penalties for the Violation of any of the Provisions of this Act as well as any Rule or Regulation Promulgated by the State Road Department; and Providing for the Enforcement of the Provisions of and Regulations made in Pursuance of this Act.

'Whereas, during the past twelve months approximately thirty per centum (30%) of all cement sold and used in Florida was manufactured in foreign countries and imported and brought into the State of Florida, and

'Whereas, in view of the fact that large numbers of dwellings, apartment houses, hotels and public buildings are constructed of cement or cement forms an integral part of the construction thereof, and

'Whereas, it is of paramount importance to the public safety that only cement measuring up to a minimum standard should be offered for sale, sold or used in the State of Florida, and

'Whereas, much of the foreign manufactured cement imported and brought into the State of Florida has been of inferior quality, and

'Whereas, the importation and sale or use of foreign cement not only jeopardizes public safety but amounts to unfair competition being forced on this great industry in Florida,

'Therefore:

'Be it enacted by the Legislature of the State of Florida:

'Section 1. That the State Road Department of the State of Florida is hereby authorized and required to fix a minimum standard for all cement offered for sale or sold or used in the State of Florida; said standard to be fixed by said State Road Department shall be the standard now in force and used by it in the purchase and use of cement in the construction of public highways, which said standard of cement was set up by the American Society of Testing Materials and approved by the United States Bureau of Public Roads for highway construction; and said standard is hereby fixed and designated as a minimum for all cement offered for sale or sold or used in the State of Florida and it shall be unlawful for any person, persons, association of persons, firm or corporation to sell, offer for sale or use in the State of Florida any cement in the construction of any hotel, apartment house, rooming house, dwelling or public building of any kind or character which does not measure up to the minimum standard herein fixed.

'Section 2. It is hereby made the duty of the State Road Department to inspect all cement imported or brought into the State of Florida from any foreign country and sold or offered for sale or to be used in the State of Florida, and no cement imported and brought into the State of Florida from any foreign country shall be sold, offered for sale or used in the State of Florida until the same has first been inspected by the State Road Department and a tag or other evidence showing such inspection shall be affixed to said cement, or the container thereof, showing that it has been so inspected or approved; and it shall be unlawful for any person, firm, association of persons, or corporation to sell, offer for sale or use in the State of Florida any cement imported or brought into the State of Florida from any foreign country before such inspection has been made by the State Road Department and such cement approved as herein set out and until there has been paid an inspection fee to the State Road Department of fifteen cents (15¢ ) on each one hundred pounds or fraction thereof; said fee so required to be paid for inspection of cement manufactured in a foreign country and imported and brought into the State of Florida shall be paid to the State Road Department and said inspection fee is required to be paid as inspection fees on cement imported and brought from foreign countries into the State of Florida.

'Section 3. The State Road Department is hereby authorized to employ all field and other agents and clerical assistance at such times and periods as may enable it to enforce the provisions of this Act, and is hereby authorized to fix their compensation and said State Road Department is hereby authorized to purchase and install such facilities from time to time as it may deem necessary to make fully effectual the provisions of this Act. The State Road Department shall use and expend in enforcing this Act only monies derived and collected hereunder.

'Section 4. Said State Road Department is hereby authorized and empowered to promulgate any and all reasonable rules and regulations that it may deem necessary and proper for the proper administration and enforcement of this Act and said rules and regulations shall have the force and effect of law.

'Section 5. It shall be unlawful for any person to obstruct or resist any authorized agent or inspector designated by the State Road Department while such person is in the performance or discharge of any duty imposed upon, authorized or required under the provisions of this Act, or by any rule or regulation adopted as provided hereunder.

'Section 6. Any person who shall violate any of the provisions of this Act or shall do or commit any act herein declared to be unlawful or violate any rule or regulation made or promulgated by the State Road Department by virtue of the authority herein, shall be punished by a fine of not more than $2500.00, or imprisonment in the county jail for not more than 12 months, or both in the discretion of the court.

'Section 7. This law shall be construed as an Act intending to secure public safety of the people of the State of Florida.

'Section 8. The State Road Department is hereby authorized to designate and utilize the services of the several officers and inspectors of the Health Department, Hotel Commission of the State of Florida, as well as any and all other duly authorized and legally constituted officials who are vested with police power, in order to enforce and carry out the provisions of this Act in all particulars, and it shall be the duty of all such inspectors and other officials to comply with the orders and requests of said Road Department in connection with the enforcement of this Act, without any additional compensation than that already being paid such inspector or officials, and refusal so to do on the part of any inspector or official shall constitute legal and sufficient grounds for removal from office.

'Section 9. In addition to other remedies provided for in this Act, the State Road Department is hereby authorized to proceed in any of the courts of this State by injunction to restrain any threatened continued violation of this Act, and it shall be the duty of each State Attorney, County Prosecuting Attorney, and of the Attorney General, to assist in the enforcement of the provisions of this Act upon the request of the State Road Department.

'Section 10. All laws and parts of laws in conflict with the provisions of this act, be and the same are hereby repealed.

'Section 11. This Act shall take effect upon its becoming a law.'

The particular act sought to be required of the State Road Department is: 'To inspect all cement imported into the State of Florida from any foreign country and sold, offered for sale, or to be used in the State of Florida, and affix thereto evidence showing that said cement has been so inspected and collect therefor the inspection fees fixed in said Act, as the same is on file and deposited with the Secretary of State, as well as carry out, perform and discharge all of the other provisions required under said Act to be done and performed by the said State Road Department.' The language, 'as well as carry out, perform and discharge all of the other provisions required under said Act to be done and performed by the said State Road Department,' may be treated as surplusage because we hold that the act only requires the State Road Department 'to inspect all cement imported into the State of Florida from any foreign country, and sold, offered for sale, or to be used in the State of Florida, and to affix thereto evidence showing that said cement has been so inspected, and to collect therefor the inspection fees fixed by said Act as the same is on file...