My interest in the disposition of this case is deep and far-reaching. The little citrus fruit involved is of no consequence. Whether or not there was or is little or much arsenic on or in that fruit is a matter of insignificant import.
The arresting question is: May private property be seized, confiscated and destroyed by the order of an administrative officer pursuant to procedure contrary to the express statutory provisions adopted and prescribed by the Legislature to be followed in such cases?
Shall this Court shift the Constitutional doctrine which we have followed for all the days of the past? If we do, we lead the way because thus far the judiciary of this country has held sacred freedom of speech, or press and of worship; the right to have one's home treated as his castle; the right of peaceable assembly; the right to trial by jury when life, liberty or property is involved; the right to be free from unreasonable searches and seizures.
Hon. Frank Hogan in his recent address before the American Bar Association said:
"Those who think lightly of shifts in constitutional doctrines must think lightly also of the importance of knowing what the law is. Is it to be a movable thing, changing and changeable after each reconstruction in the membership of courts? Is it to vary with the shifting currents of the political will? Or is it to be something certain, steadfast and enduring, upon which reliance can safely be placed?"
It has been suggested in argument before us that unless the authority is recognized in the Commissioner of Agriculture to make, promulgate and enforce the rules and regulations here involved, the result will be to frustrate the *Page 894 legislative intent to prohibit the use of arsenic on citrus fruit trees.
That the enforcement of regulations as promulgated by the Commissioner of Agriculture will be more effective in curtailing the use of arsenic on citrus fruit trees than would be experienced by the enforcement of the limited provisions of Sections 4, 5 and 6 of Chapter 11844, Acts of 1927, affords no legal reason for denying the injunction in this case. Such fact, if it be a fact, may have foundation in expediency, but the question of expediency is for legislative, not judicial, consideration. When expediency is allowed to control judicial conclusions we shall have abandoned government by rule of law in favor of government by rule of men and our legal foundations will be as shifting as the sands and as changing as is the trend of public opinion.
Be it understood that we imply no adverse criticism of the Commissioner of Agriculture. We give him full credit for performing his official duties as he conceives them to be with the highest of motives and the best of intentions.
But under the Constitution the law-making power is vested exclusively in the Legislature. It is the paramount duty of the judiciary to recognize that power only in the Legislature.
That legislative power may be exercised by delegation only when and where the Constitution expressly authorizes such delegation can not be questioned. Article II, Constitution of Florida.
The disposition of this case involves the integrity of one of the foundation principles of government and it should be disposed of with that thought in the foreground.
The question of the reasonableness or fairness of the rules and regulations promulgated by the Commissioner of Agriculture is not one required to be determined here. The *Page 895 question in this regard is, "Do the statutes of this State purport to confer upon the Commissioner of Agriculture authority to promulgate rules and regulations under which he may confiscate and destroy valuable personal property when such confiscation and destruction are not definitely authorized by a valid legislative enactment?" We say with confidence that such authority does not purport to he conferred and does not exist and we shall hereinafter support this view with citations of authority.
Neither is the question of the power of the Legislature in the exercise of the police power of the State, to command the confiscation and destruction of personal property possessing baneful characteristics dangerous to life, health, morals or general welfare one required to be answered here. The power of the Legislature in this regard is admitted. The Legislature exercised that power in the adoptions of Sections 4, 5 and 6 of Chapter 11844 and by the provisions contained in those sections definitely stated the conditions, and the only conditions, under which citrus fruit could lawfully be confiscated and destroyed by order of the Commissioner of Agriculture because of being infected with arsenic. That legislative Act has been amended only by Chapter 14485, Acts of 1929, so as to exclude its application to citrus fruit produced in the areas quarantined because of the Mediterranean fruit fly.
There is no claim or pretense that the fruit involved in this case was confiscated or seized under the provisions of Sections 4, 5 and 6, supra. The record shows conclusively and without contradiction that the fruit was not subject to seizure under the provisions of Section 4, supra.
We say with confidence that there is no legislative Act which authorizes the confiscation and destruction of any citrus fruit because of being infected with arsenic, except *Page 896 that which may have been seized pursuant to the provisions of Section 4, supra.
The law is complete and clear as enacted by the Legislature and it is the duty of the administrative officers to enforce such laws as they are written by the Legislature. It is the duty of the Courts to construe the law as it is written. The courts are without lawful power to add provisions to the statutory enactments on the ground that unless something is added to the statute it will fail in the purposes for which it was enacted. Courts have no power to legislate.
The Legislature definitely limited the authority of the Commissioner of Agriculture in regard to making and promulgating rules and regulations by Section 7 of the Act in which it is provided:
"The Commissioner of Agriculture shall from time to time, as he may deem to be expedient and necessary, make and promulgate rules and regulations for carrying out and enforcing theprovisions and regulations of this Act." (Emphasis supplied.)
Sections 4, 5 and 6, supra, provided the rules and regulations for seizure, confiscation and destruction of citrus fruit because of being infected with arsenic, and Section 7,supra, did in no wise attempt or purport to authorize the Commissioner to seize, confiscate or destroy any fruit except that which may have been seized under the provisions of and in strict conformity with Section 4, supra.
It has been contended in effect that the Commissioner of Agriculture was authorized to make and promulgate such rules and regulations as might be necessary to effectuate thepurposes of the Act. We find no basis for this in the legislative language. The purpose of an Act may be one thing while the provisions of the Act may be entirely inadequate *Page 897 to effectuate the purposes. In such cases the Legislature may not delegate to an administrative officer, or to a judicial officer, the power to make and promulgate the regulations amendatory to the statute to cure is deficiencies.
The leading case in Florida on delegation of power is the case of State v. Atlantic Coast Line Railway Co., 56 Fla. 617, 47 So. 969, 32 L. R. A. (N. S.) 639, decided ill 1908. In this case Mr. Justice WHITFIELD, speaking for the Court, said:
"The Legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law, complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose."
This has been the controlling case in all situations dealing with delegation of power to administrative bodies and has never been modified or overruled. See also State v. Duval County,76 Fla. 180, 79 So. 692; Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789; Whitaker v. Parsons, 80 Fla. 352. 86 So. 247; Ex Parte Lewis, 101 Fla. 624, 135 So. 147.
There are numerous cases to the effect that property may be confiscated and destroyed under the police power of the State, without violating the due process clauses of the State and Federal Constitutions. An important case on this subject is Mugler v. Kansas, 123 U.S. 623, 8 Sup. Ct. 273, 31 L. E. 205, where it is said.
"Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though these consequences may impair its use, do not constitute a taking within the meaning of the constitutional provision, or *Page 898 entitle the owner of such property to compensation from the State or its agents, or give him any right of action."
The Mugler case, supra, is cited and quoted with approval in Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 52 A. L. R. 51. See also State v. Jackson, 152 La. 656, 94 So. 150.
In speaking about the police power of a municipality, this Court in Maxwell v. City of Miami, 87 Fla. 107, 100 So. 147, 33 A. L. R. 682, said:
"Any exertion of municipal authority or of the police power is subject to the provisions of organic law that are designed to conserve private rights. In the exercise of the police power, property and individual rights may be interfered with, or injured, or impaired, only in the manner and to the extent that are reasonably necessary to conserve the public good. An unreasonable or unnecessary exertion of municipal authority or of the police power in the manner or extent in which private personal or property rights are curtailed or impaired, violates organic law, in that it deprives persons of liberty and property without authority or due process of law."
There are also numerous cases which hold that the protection of the citrus fruit industry of this State by guarding it against destruction or serious injury by natural pests is an activity of the government resting for its authority upon the public interest affected by the success or failure of such industry and is within the police power of the State. Johnson v. State, 99 Fla. 1311, 128 So. 853; Maxcy v. Mayo, 103 Fla. 552, 139 So. 121; Kilgore v. Mayo. 54 F.2d 132; Sligh v. Kirkwood, 237 U.S. 52, 35 Sup. Ct. 501, 59 L.Ed. 835.
Sections 262 and 263 of 11 Am. Jur., page 998 and 999, deal with the effect of the due process and equal protection *Page 899 clauses, relative to delegation of power to administrative agencies.
In State ex rel. Wolyn v. Apalachicola Northern R. Co.,81 Fla. 383, 87 So. 909, it was said:
"This Court has held that orders of the Railroad Commission fixing rates or making rules or regulations without obtaining or considering any substantial and pertinent evidence where investigation, inquiry and evidence are necessary as a basis for the action taken, the proceeding is not had in due course of law." State ex rel. R. R. Com. v. F. E. C. Ry. Co., 64 Fla. 112, 59 So. 385; State ex rel. R. R. Com. v. F. E. C. Ry. Co.,69 Fla. 165, 67 So. 906. And in many cases it has been held that where it appears from admissions of the pleadings thatorders or regulations made by them are not authorized by law, such orders or regulations will not be enforced by the courts. State ex rel. R. R. Com. v. Southern Telephone Co., 65 Fla. 270, 61 So. 506; State ex rel. R. R. Com. v. F. E. C. Ry Co.,supra. See also Interstate Commerce Commission v. Union Pacific R. Co., 222 U.S. 541, 32 Sup. Ct. 108, 56 L. Ed. 308; Interstate Commerce Commission v. Louisville N. R. Co.,227 U.S. 88, 33 Sup. Ct. 185. 57 L.Ed. 431. (Emphasis supplied.)
In Richter v. State, 16 Wyo. 437, 95 P. 51, the statute provided that: "Any inspector, either Federal or State, shall have authority to inspect and quarantine and treat sheep affected with contagious or infectious diseases or suspected of being so affected, or that have been so exposed to any such disease; * * *"
The Court in upholding the constitutionality of the statute, said: "A conferred power of this nature is not inhibited by the Constitution because it is the method and practically the only method by which the State can enforce its police regulations. *Page 900 The law is essentially of that nature, and the protection sought and the object to be attained must be by a summary method, and the State must act and act quickly through its agents who are clothed with certain powers in the performance of the duty. The power cannot be used arbitrarily nor oppressively, but only in such cases and in the mannerprescribed by the statute, which being penal in its nature, must be strictly construed." (Emphasis supplied.)
The North Carolina Court in case of State v. Southern R. Co. (1906), 141 N.C. 846, 54 S.E. 294, has said:
"The crime is fixed and declared by the Legislature as expressed in the Act. The commissioner and board are only given power to establish the conditions and certain administrative regulations under and upon which the statute is made to apply."
Florida cases on this point are: State v. Atlantic Coast Line Ry. Co., 56 Fla. 617, 47 So. 969, 32 L. R. A. (N. S.) 639; Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789; State v. Fowler,94 Fla. 752, 114 So. 435; Pridgen v. Sweat, 125 Fla. 598,170 So. 653. And in Ex Parte Lewis, 101 Fla. 624, 135 So. 147, it was said:
"The Legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying the law; but it may enact a law complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rulesand regulations for the complete operation and enforcement ofthe law within its expressed general purpose. The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its *Page 901 execution, to be exercised under, and in pursuance of law. The first cannot be done; to the latter no valid objection can be made." (Emphasis supplied.)
Because I am fully convinced that no more important constitutional question may be presented to this Court than that which is presented in this case, and that a correct answer to that question must result in reversal of the decree of the lower court, I conceive it to be my duty to put these views in the record insisting that a rehearing be granted to the end that the guarantees of the due process clause of the Constitution of the State and Nation may be given effect and sacred property rights, be they great or small, may continue to enjoy judicial protection.
This opinion has been agreed to by the writer and Mr. Justice WHITFIELD and Mr. Justice BROWN while Mr. Chief Justice TERRELL and Mr. Justice THOMAS and Mr. Justice CHAPMAN dissent. Therefore the rehearing is denied because of the lack of a majority of the Court favoring rehearing. So ordered.
WHITFIELD, P. J., and BROWN, J., concur.
TERRELL, C. J., CHAPMAN and THOMAS, J. J., dissent.