State Plant Bd. v. Smith

• Decision Date: 25 March 1959
• Docket Number: No. 29609,29609
• Parties: STATE PLANT BOARD, a body corporate under the laws of the State of Florida; W. G. Cowperthwaite, as Plant Commissioner; and Charles Poucher, individually, and as agent of said Board, Appellants, v. Walter A SMITH and wife, Mildred C. Smith, Appellees.
• Court: Florida Supreme Court

Page 401

110 So.2d 401

STATE PLANT BOARD, a body corporate under the laws of the State of Florida; W. G. Cowperthwaite, as Plant Commissioner; and Charles Poucher, individually, and as agent of said Board, Appellants, v. Walter A SMITH and wife, Mildred C. Smith, Appellees.

No. 29609.

Supreme Court of Florida.

March 25, 1959.

Richard W. Ervin, Atty. Gen., Ralph E. Odum, Asst. Atty. Gen., Joseph O. Macbeth, Sebring, and M. H. Edwards, Bartow, for appellants.

H. C. Crittenden, Winter Haven, G. B. Fishback, Orlando, Robert L. Staufer, Winter Haven, Harry Lee, Sebring, and Edward J. Hanlon, Jr., Winter Garden, for appellees.

ROBERTS, Justice.

This is an interlocutory appeal from an order of the lower court holding unconstitutional all of § 2 of Ch. 57-365, Laws of 1957 [§ 581.17(2), Fla.Stat.1957, F.S.A.], except the first paragraph thereof, and declining to dismiss the plaintiff-appellees' suit for injunctive relief against the appellant, the State Plant Board, upon its motion.

The Act in question was adopted by the Legislature following the decision of this court in Corneal v. State Plant Board, Fla.1957, 95 So.2d 1, 4, and with direct reference thereto in the Preamble to the Act. In the Corneal case this court held that the so-called 'pull and treat' program adopted by the State Plant Board ('the Board' hereafter) under general legislative authority for the containment and eradication of a citrus disease known as spreading decline, caused by a burrowing nematode, could not be carried out on a compulsory basis without compensating the grower for 'at least, the loss of profits sustained by the owner whose healthy trees are destroyed under the compulsory program of 'pull and treat' * * *.' The nature of the disease and the Board's program for its control and eradication are discussed at some length in that opinion, and this discussion will not be repeated here. It suffices to say that the burrowing nematodes infest and attack the lower root system of a citrus tree and, eventually, cause the tree to 'decline' and to become commercially unprofitable; and the Board's program calls for the destruction, according to a set formula, of both infested and noninfested trees and the fumigation of the soil in the cleared area.

Section 1 of the 1957 Act, supra, provides that '[t]he citrus disease known as spreading decline, caused by the burrowing nematode is hereby declared to be a dangerous public nuisance'; and in the first paragraph of § 2 of the Act the Board is directed to carry out a compulsory program of containment and eradication of the disease, including the destruction of infested trees and fumigation of the soil, in accordance with the rules and regulations of the Board. (These portions of the Act were not disturbed by the Chancellor in the order here reviewed.) The remaining provisions of § 2--held unconstitutional by the Chancellor--provided for the payment of 'reasonable compensation not to exceed $1,000.00 per acre' for the destruction of uninfested trees, set out a formula for the guidance of the Board or its agents in determining 'just and fair compensation' to be paid to the grower for the destruction of such trees, provided for a hearing before the Board as to the adequacy of such compensation and for judicial review of the Board's administrative determination in this respect. The Act specifically provided that no compensation should be paid for the destruction of infested trees.

While not expressly so provided, it is the clear implication of the Act--and the Board has so interpreted it--that the compulsory program of 'pull and treat' may be carried out summarily in any citrus grove in which the burrowing nematodes are found by the Board's agents, and that the grove owner is entitled to an administrative and judicial hearing on the sole question of the adequacy of the compensation to be paid to him--and this only after the trees, infested and non-infested, have actually been destroyed.

In their complaint the plaintiffs-appellees attacked the statute on the grounds, inter alia, that it authorized the taking of their property without due process of law and without just compensation, contrary to the Florida and federal constitutional [§ 12, Declaration of Rights, Fla.Const., F.S.A.; 14th Amend., U.S.Conat.], and that it also violated § 29, Art. 16 of the Florida constitution, F.S.A. prohibiting the taking of property for public use unless full compensation therefor 'shall be first made to the owner, or first secured to him by deposit of money.' The Board based its motion to dismiss principally on the decision of this court in Corneal v. State Plant Board, supra, 95 So.2d 1, urging that the statute 'tracked' in every respect the mandate of this court in that case and that the only question for judicial determination was the reasonableness of the compensation to be awarded plaintiffs for the destruction of their non-infested trees.

In his order here reviewed the Chancellor held that, insofar as the statute authorized the summary destruction of infested trees, it met the constitutional requirements of due process; but that '[t]he attempt of the Legislature * * * to empower the State Plant Board to destroy healthy trees before compensation shall be paid or secured to the owner, and the further attempt by said act to place a ceiling of $1,000 per acre as compensation for healthy trees so destroyed and providing that said payment should be made only after such destruction, violates the provisions of Section 12 of the Bill of Rights, Florida Constitution, and also Section 29, Article 16 of the Florida Constitution.' He interpreted the opinion of this court in the Corneal case as requiring 'full compensation' to be made to the grove owner and opined that 'any attempt by the Legislature to place a ceiling on compensation that is less than the fair market value of the property destroyed or that attempts to destroy Plaintiffs' healthy trees before compensation shall be paid or secured to Plaintiffs is clearly unconstitutional.'

We will first dispose of the question of whether the destruction of citrus trees in this situation is an appropriation of private property for public use within the intendment of § 29 of Art. 16 of the Florida constitution. We think the conclusion is inescapable that it is not.

There is a very clear distinction between an appropriation of private property to a public use in the exercise of the power of eminent domain, and the regulation of the use of property--and its destruction, if necessary--in the exercise of the police power. 'Under the power of eminent domain the sovereign may make a compulsory purchase of the property of the citizen when such property is to be appropriated to a public purpose or use, but such compulsory purchase, or taking as it is called, cannot be made even by the sovereign 'without just compensation". Moody v. Jacksonville, T. & K. W. R. Co., 1884, 20 Fla. 597, 606. Or, stated differently, in the exercise of the power of eminent domain the sovereign 'compels the dedication of the property, or some interest therein, to a public use, or, if already dedicated to one public use, then to another.' State ex rel. Lamar v. Jacksonville Terminal Co., 1900, 41 Fla. 377, 27 So. 225, 237. See also Adams v. Housing Authority of City of Daytona Beach, Fla.1952, 60 So.2d 663.

On the other hand, the police power is exercised by the sovereign to promote the health, morals and safety of the community, Adams v. Housing Authority, supra; it rests 'upon the fundamental principle that every one shall so use his own as not to wrong or injure another.' Mugler v. State of Kansas, 123 U.S. 623, 661, 667, 8 S.Ct. 273, 300, 31 L.Ed. 205, quoted in Pensacola & A. R. Co. v. State, 1889, 25 Fla. 310, 5 So. 833, 3 L.R.A. 661. "To destroy property because it is a public nuisance is not to appropriate it to public use, but to prevent any use of it by the owner, and to put an end to its existence, because it could not be used consistently with the maxim, sic utere tuo ut alienum non laedas." Bowman v. Virginia State Entomologist, 1920, 128 Va. 351, 105 S.E. 141, 145, 12 A.L.R. 1121, quoting 1 Lewis on Eminent Domain, 3d ed., § 247.

It is abundantly clear, then, that the Act in question was enacted in the exercise of the police power of the sovereign state and not in the exercise of the power of eminent domain. Accordingly, it must be held that the able Chancellor erred in testing the validity of the Act by the organic requirements contained in § 29 of Art. 16.

But the Chancellor also stated in the order here reviewed that the Act 'violates the provisions of Section 12 of the Bill of Rights, Florida Constitution'. While the language of the order appears to be referable only to a violation of § 29 of Art. 16, the issue as to a violation of § 12 of the Declaration of Rights was made by the pleadings; this being so, this court's decision, on appeal, 'must be made, not on the basis of whether the trial court or chancellor traveled the proper route, used proper reasoning, or laid his conclusion on proper grounds, but rather on whether his conclusion is correct or incorrect.' Chase v. Cowart, Fla.1958, 102 So.2d 147, 150.

So the fact that § 29 of Art. 16 is not applicable to the Act does not dispose of the case. There still remains the question of the impact of the provisions of § 12 of the Declaration of Rights, Fla.Const. of 1885, prohibiting the taking of private property without due process of law and without just compensation. And it might be noted that the provisions of our constitution guaranteeing these sacred and basic rights ante-date by almost fifth years the organic limitations imposed by § 29 of Art. 16. These provisions have been incorporated in all of our state constitutions, from that of 1838 up to and including our present constitution of 1885. Section 29 of Art. 16, which was new in the constitution of 1885, merely specified additional organic limitations upon the...