The situation in which this Court finds itself in undertaking to decide this appeal by a divided Court is unusual, but not without precedent in the jurisprudence of this State.
In Burnett v. Green, 97 Fla. 1007, 122 Sou. Rep. 570, an attack was made on the constitutionality of Chapter 6458, Acts of 1913, commonly known as the general drainage *Page 173 age law. The case was heard by the Circuit Court of Hillsborough County on an application for a preliminary injunction. The injunction was granted on the circuit court's finding that the statute involved was unconstitutional. That case, like this one, was heard on bill, answer and testimony taken on the preliminary injunction application. When the case was first brought to this Court on appeal from the interlocutory injunction order, the Justices of this Court were equally divided not two, but three, ways, on the proposition whether or not the injunctional order should be affirmed. And upon such three-way division of this Court, an affirmance decree was entered. Thereupon the case was remanded for final adjudication on its merits. Later the circuit court on final hearing did decide the case on its merits. In the final decree, the circuit court again decided that the statute was unconstitutional. But upon an appeal from the final decree, this Court reversed the conclusion reached that the statute was invalid, despite the fact that it had previously affirmed the interlocutory order granting a temporary injunction in the same identical case on the ground that the statute was unconstitutional. Burnett v. Greene, 105 Fla. 35,144 Sou. Rep. 205. See also State ex rel, Buford v. Watkins, 88 Fla. 392,102 Sou. Rep. 347 for a similar case.
Every statute not obviously bad on its face, is prima facie constitutional, and is enforceable as such by the executive department of the government.
But where a statute is not averred against as being unconstitutional on its face, but is nevertheless challenged as to its constitutionality as applied to a special factual statusclaimed to exist (for example as in Weaver v. Palmer Bros. Co.,270 U.S. 402, 46 Sup. Ct. 320, 70 L. Ed. 654) the ultimate constitutionality of the statute may often times be *Page 174 judicially determinable only upon the factual showing made at the final hearing.
The rule seems to be well established that a chancery court on an application for a temporary injunction presented on bill, answer and affidavits, may reach the conclusion that the complainant has made out such a strong showing of probable unconstitutionality of application of a given statute alleged to be in conflict with justiciable constitutional rights relied upon by complainant for permanent relief against the enforcement of the statute challenged, as to warrant the granting of a temporary injunction on that ground alone, to stay the enforcement of the statute pendente lite, when otherwise the enforcement of such statute pendente lite might result in the imposition of enormous penalties, or the forfeiture of valuable property rights, for which no redress could be later had for the injury done.
If this were not the rule, citizens affected by unconstitutional laws carrying severe penalties of fine, imprisonment or forfeiture of rights of property, might be so intimidated as to entirely preclude any resort to the courts at all for testing the validity of the statute, for fear of the penalties and forfeitures that might be imposed upon them in case the court should decide that the law was valid. So where the result would be the complete denial of a right to be heard on a constitutional question, by making resort to defenses at law so attendant with risk of fines and enormous forfeitures as to intimidate observance of the alleged unconstitutional law in order to avoid the likelihood of severe punishment for non observance, a court of equity may grant a stay of enforcement of the alleged unconstitutional statute, until such time as it may more fully investigate the facts of the case necessary to enable it to reach a final adjudication. See Ex Parte Young,209 U.S. 123, *Page 175 28 Sup. Ct. Rep. 441, 52 L. Ed. 714, and Florida East Coast Ry. Co. v. State, 79 Fla. 66, 83 So. 2d 708.
In this case the order appealed from is temporary in character and as such, is subject to future modification or dissolution by the court that granted it, should equitable principles require it, though it has been affirmed here on appeal. Such order embraces two phases of complainants' case (1) its right to relief by injunction temporary in character, (2) its right to permanent relief because the statute is unconstitutional. The fact that the Chancellor incorporated in his order a finding that the statute was unconstitutional in its application to grapefruit does not finally and conclusively determine that question insofar as it may be presented on final hearing of the cause, unless the court not only affirms the order made, but affirms it to the extent of adjudicating the constitutional question on this interlocutory appeal.
Ordinarily the constitutional question would be the sole question adjudicated by this Court in a case of appeal from an order holding a statute invalid and enjoining its enforcement. But the fact that the Court is equally divided on the constitutional question as it is presented on the record now before us, precludes a final decision by this Court on the constitutional question at this stage of the proceeding.
But the fact that the Court is evenly divided on the decision now to be made on the constitutional question, does not preclude the application of the rule of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 Sou. Rep. 51, to the order appealed from insofar as it may be dealt with in its aspect simply as a discretionary order in chancery granting an injunction to preserve the asserted rights of the parties complainantpendente lite.
None of the Justices participating in the decision filed *Page 176 Monday, October 2, 1933, has receded from the views then severally expressed. So the Court remains evenly and permanently divided on the constitutional question insofar as the present record and the present appeal is concerned. But this does not finally end the litigation as would be the case if a majority of the Court could agree on the present appeal that the statute is or is not unconstitutional in its application to grapefruit. So there is no alternative for this Court than to deal with such judicial impasse by affirming the interlocutory injunction simply in its aspect as a discretionary injunctional order and defer until consideration of the case on final decree, any further attempt to decide the constitutional question. This procedure is directly in line with the authorities cited to this Court at the oral argument on the application for a reinstatement of the constitutional writ dissolved at the time of Monday's decision.
Should the case be again brought here on an appeal from the final decree, it would then come here accompanied by a finding of facts on final hearing that would be res adjudicata as to the factual situation relied on as constituting a basis for holding the statute unconstitutional in its application to grapefruit. But such finding of facts would have to then be considered in the light of what has recently been set forth as the rule controlling conflicting presumptions in such cases, between the presumption in favor of the correctness of the Circuit Court's judgment as opposed to the presumption in favor of the statute.
The rule referred to was recently stated in excellent fashion by Mr. Justice ELLIS in the case of Spencer v. Hunt, 109 Fla. 248,147 Sou. Rep. 282, as follows:
"In cases of this nature where the court of original jurisdiction declares an act of the Legislature to be in conflict with the Constitution, the presumption does not obtain in *Page 177 the appellate court as in other cases on writ of error from this court that the judgment of the trial court is accurate. Obviously no such presumption can exist because the question of the validity of the Act is presented directly for determination by this Court and the presumption obtains in favor of the constitutionality of the Act, which may not be held bad unless the Court is convinced beyond a reasonable doubt of its invalidity. See State v. Bryan, 50 Fla. 293, 39 So. 2d 929; Hayes v. Walker, 54 Fla. 163, 44 So. 2d 747."
Under the circumstances, none of the Justices receding from the several positions heretofore taken, there is nothing the Court can do but allow the decision of October 2, 1933, to stand and the petition for rehearing, and for decision at this time on the constitutional question, to be denied, and it will be so ordered.
Rehearing denied.
DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.