The appellant, complainant in the circuit *Page 876 court, has appealed from the final decree dismissing its bill of complaint praying for an injunction to restrain the Commissioner of Agriculture from seizing and destroying certain oranges, from interfering with the sale of the fruit and from "illegally obtaining evidence of purported violation of the Arsenical Spray Law of Florida."
The original bill of complaint was examined and discussed by this Court. Kilgore Groves, Inc., v. Mayo, 136 Fla. 615, 187 South. Rep. 256. Subsequently an amended one was filed and it was the allegations of this latter pleading that the chancellor held had not been substantiated by the testimony.
A resume of the averments follows: Oranges picked by appellant were seized by appellee whose duty it is to enforce Chapter 11844, Laws of Florida, Acts of 1927, as amended by Chapter 14485, Laws of Florida, Acts of 1929, known as the Anti-Arsenic Law. Appellant was notified by appellee's inspector that the fruit contained arsenic although it did not, according to the pleader, "contain arsenic" in violation of said law, because the content of arsenic as "might be found therein or thereon is only such amount as is found in all citrus fruits as a natural content thereof or is thereon in the form of a small arsenical residue that will naturally result from the use of common commercial lime-sulphur and copper-sulphate sprays universally used throughout the citrus industry of Florida." When tested under the provisions of 10103, Laws of Florida, Acts of 1925, the fruit did not "show an abnormal and excessively high ratio of total soluble solids of the juice thereof to the anhydrous citrus acid thereof." The fruit is normal in taste and appearance. No arsenic has been applied to the trees from which the fruit was taken, nor was any added to fertilizer used in the production of the crop. The test of *Page 877 the product to determine whether or not the chemical was present was not by the use of the interior portion of the fruit but from the exterior or rind. The State chemist in making analyses of fruit in his search for arsenic therein has fixed a tolerance of .00028 grains of arsenic per pound of thinly shaved peel without any "basis in fact or authority of law." After the seizure a referee chemist found upon examination that "the ratio was absolutely normal in every respect."
The answer in general brings to issue the above allegations and in it the appellee asserts that the allowance of .00028 grains of arsenic is uniformly followed as a means of enforcing laws of this character and has been adopted as a result of years of study. The so-called tolerance "is well above any amount of arsenic which may appear in the fruit unless the same has been artificially applied."
Upon motion of the appellant, the court directed one of appellee's inspectors to take, in the presence of a representative of appellant and a representative of appellee, specimens of fruit from the groves involved in this litigation and to deliver one-half of each sample to an assistant State chemist and one-half to a chemist in the laboratory in Tampa. These chemists were ordered separately to make tests to establish the ratio of the total soluble solids of the juice to the anhydrous citric acid by examining: (1) the thin peel; (2) the entire peel; (3) the peel after being cleansed by methods used in preparation of fruit for sale; (4) the entire edible portion of the fruit after being washed; and (5) the entire edible portion of the whole fruit. Where the cleansed fruit was ordered examined it was also ordered that the cleansing solution be analyzed.
Then followed the introduction of testimony which, transcribed, comprises more than five hundred pages which *Page 878 we have read. It shows exhaustively the experiences of the chemists who testified, including the State chemist, with reference to the reaction of arsenic on maturing fruit and the assimilation and distribution of the chemical through the leaf and root systems of the trees. Much of it, too, is devoted to the promulgation and application by the Commissioner of Agriculture of the rule referred to allowing a "tolerance" of .00028 grains of arsenic per pound of unwashed peel.
The question we are to decide is the authority of appellee to destroy oranges where arsenic is present in the peel of the fruit in excess of the tolerance and again we are faced with a construction of Chapters 11844 and 14485, supra. It is urged by appellant that an "abnormal and excessively high ratio of total soluble solids to the juice * * * to the anhydrous citrus acid thereof, indicating the presence of arsenic therein" must be shown before an analysis is justified, and that one of the deleterious effects, six in number, set out in the opinion in the case of L. Maxcy, Inc., v. Mayo, 103 Fla. 552, 139 South. Rep. 121, be established before appellee can resort to destruction of the fruit under the statutes.
Section 4 of the Act does not make an examination of the suspected fruit, to ascertain the ratio of soluble solids to juice content, a prerequisite to a chemical analysis for the detection of arsenic, but provides that when from such a test of fruit at a packing house this ratio is abnormal, "indicating the presence of arsenic," the inspector coming into possession of such information is duty bound to seize the questioned product and notify the person in charge. No fruit thus held may be retained more than ninety-six hours unless chemical analysis establishes the presence of arsenic. Another section of the Act, six as amended, provides that *Page 879 all fruit, no reference being made to the edible portion as distinguished from the peel or "rag", that is shown by chemical analysis to contain arsenic or its derivatives shall be confiscated. It should be borne in mind that section 1 prohibits the use of the substance or any of its derivatives in fertilizer or spray material on bearing citrus trees without any qualifications except to destroy the Mediterranean fruit fly.
There appears no necessity, when the whole Act is considered and its purpose studied, for an inspector to further arouse any suspicion he may have of the presence of the prohibited chemical by an investigation of the ratio of solids to acid as a preliminary to a test to confirm or refute such suspicion. If he makes a chemical analysis to ascertain if any arsenic is present the result would certainly not be influenced by the ratio which we have referred. Appellant's argument is plausible in the light of individual sections of the Act, but is unsound when applied to the whole.
We cannot agree either that there was any responsibility on the part of the appellee to show one of the harmful effects enumerated in Maxcy v. Mayo, supra, at page 130 of the opinion, 139 South. Rep. The law does not specify that one of these be established before confiscation, nor does the opinion indicate that. In discussing the Act generally it was merely stated that to avoid such evils the law was enacted. This part of the decision is more clearly understood when read with the whole and particularly:
"It is established by the record that arsenical sprays, when applied to bearing citrus trees by dusting or spraying on the limbs and foliage, has an inevitable tendency to injuriously affect and injure the quality of the fruit produced. This is done by the action of the arsenic after it is absorbed into the tree. The result is invariably observed that fruit picked *Page 880 from citrus trees which have been subjected to frequent arsenical spraying appears in every respect like other citrus fruit of normal characteristics, but is in fact always inferior in taste and quality. It is demonstrated that this inferiority, so occasioned in the fruit, cannot be detected from its appearance when offered in the market. Here the consumer is easily deceived and defrauded by the fruit's appearance as good, when it is intrinsically bad." 139 South. Rep., text 127.
A large part of the transcript gives us the various uses of fertilizing and spraying materials beneficial in the effect upon the growing crop, but as we have observed before, abuse of this ostensibly lawful practice can easily result in the production of inferior fruit, thereby redounding to the discredit of a great industry.
"On the other hand, it is equally well established that arsenical sprays can be, and regularly have been for many years past, used in protecting citrus trees from insect pests which attack them, and that such use is regarded as perfectly proper and legitimate under ordinary conditions. But notwithstanding the use of arsenical sprays as a destroyer of citrus enemies, it is likewise well established that by their use ostensibly to guard against pests, citrus growers in the past have been enabled to produce and put on the market any immature and inferior grade of citrus fruit which is capable of passing all the ordinary maturity tests prescribed by the laws of Florida designed to prevent the shipment and sale of green or immature oranges. Chapter 10103, Acts of 1925, as amended by Chapter 11875, Acts of 1927; Sections 3220-3254, Comp. Gen. Laws 1927.
"Therefore it stands on the record as an undisputed fact that while arsenical spraying of citrus trees may be legitimately employed for a proper purpose, it may be just as *Page 881 easily employed by unscrupulous citrus growers for an illegitimate purpose; that by their use such growers are habitually deceiving and defrauding their customers, by presenting to them fruit which to all outward appearances is of high grade and quality when as a matter of fact it is of inferior grade — insipid, unpalatable, and unfit for human consumption — although passing the maturity tests."
"This Court takes judicial notice of the fact that the citrus industry of Florida is one of its greatest assets. Its promotion and protection is of the greatest value to the State, and its advancement redounds greatly to the general welfare of the commonwealth. For this reason the Legislature necessarily has a wide field of police power within which to pass laws to foster, promote, and protect the citrus fruit industry of Florida from injurious practices which may tend to injure or destroy either the reputation or value of Florida citrus products in the world's markets. Sligh v. Kirkwood, 65 Fla. 123, 61 So. 185; Id., 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835." 139 South. Rep., text 127, 128.
The allowance of 00028 grains of arsenic to one pound of peel seems a fair effort on the part of appellee to enforce at once this important measure and save the grower any loss because of appearance of the prohibited substance from lawful uses. We observe in the above cited case that "there should be a statutory degree of permitted tolerance." The Legislature in several sessions has not seen fit to make the inhibition more lenient. Fulfilling his duty to enforce the law as it now exists and has existed for a decade, the appellee has fixed a sufferance of .00028 grains of arsenic to one pound of peel and there is abundant evidence that from all lawful uses of fertilizer or spray material there will not be an excess of that amount of arsenic in the matured fruit.
We have recognized the citrus fruit industry as one of the *Page 882 most important in the State. The Legislature, to protect the marketability of the product and to maintain the confidence of the buying public, has made it unlawful to use a chemical which will hasten maturity and result in fruit of a quality inferior to that which nature would produce unaided. The legislative body made the inhibition absolute and placed the duty of enforcement in the Department of Agriculture. The appellee, head of that branch of our government, concluded that conceivably arsenic could appear which was not placed on the fruit or trees for the purpose of accomplishing the prematurity which the law was designed to prevent. It has been demonstrated that the "tolerance" to which we have referred will protect the grower who is innocent in the use of insecticides and fertilizers and at the same time assure to the consumer a product of the quality and fineness he has a right to expect when he buys Florida oranges.
There is little weight to the objection that the test is made from the rind instead of the edible portion of the fruit. The law makes no such distinction. Every reference is made tothe fruit and the peel is a part of it. The rind or peel is not always destroyed and is in fact a food. Despite this, however, the State chemist gave a very plausible reason for making the test from the thin outer covering.
He related that the test of the peel resulted after discussions on the subject in the department and with growers. It was concluded that any accumulation of arsenic from previous applications, called "carry-over" or "hang-over," would be more apparent in the "rag" and juice while arsenic applied to the current crop would be evident in the peel.
Section 7, Chapter 11844, supra, makes it incumbent upon the Commissioner of Agriculture to promulgate rules and regulations to enforce its provisions and Section 3, as amended, Chapter 14485, supra, authorizes the inspectors to *Page 883 examine fruit and "to carry out the provisions of this Actin general under the direction and supervision of theCommissioner of Agriculture and subject to the provisions of law and the rules and regulations prescribed" by him. (Italics supplied.)
The chancellor found that the fruit involved here did in fact contain arsenic, although not intentionally applied by appellant for the purpose of inducing prematurity. He concluded that it was caused by spraying grapefruit trees which were interspersed with the orange trees. He also frowned upon the examination of the unwashed peel in determining whether arsenic is present and observed that the process is fair where washed peel is used. With this, as well as his other findings, we are in accord. A residue of the chemical on the outside of the fruit which could be removed by cleaning should not be a basis for condemnation. The findings of the chancellor on the law and the facts are abundantly sustained and the record discloses that the issues were thoroughly tried and ably determined. We feel that he was correct in entering a decree denying the prayer for an injunction and dismissing the bill.
The decree is affirmed.