The Chancellor in the court below wrote a very *Page 154 able opinion in this case, and I think it might be well to here quote certain material paragraphs from his opinion, which, to my mind, are sustained by the evidence in the case.
"It is suggested at the very beginning of this hearing that the matter is res judicata, and that the decision of the Supreme Court of Florida, in the case of Maxcy v. Mayo, has definitely and finally decided this matter, and that it is no longer a proper subject for litigation. If the court felt that such was the case, it would unhesitatingly deny the application for the temporary injunction, because it is the policy of this court, insofar as possible, to ascertain the rulings and orders of the Supreme Court of Florida, to follow same in all opinions and adjudications in this court. But it seems to me that this matter, as it is now brought before this court, is an entirely different case from that presented to the Supreme Court of Florida in the case of Maxcy v. Mayo. In the first place, many of the questions raised in this cause were not raised at that time, even if they might have been. That cause was of such a nature and brought in such a manner that some of the material points involved in this cause could not then have been decided in that case; and in the second place, the development of additional and different facts, which are set out in the bill of complaint and established in the evidence, show to my mind that even if the arsenic statute in question had been held constitutional at that time against any and all attacks that might have been made against it, nevertheless the court would be justified at this time, and under the facts as they now exist and are now established, in holding the arsenic law unconstitutional. There is ample authority in the decisions of the State courts and in the decisions of the United States Supreme Court to support the proposition that even though a statute has been held *Page 155 constitutional by the courts of last resort, it is proper and oftentimes necessary for a court to subsequently hold the said statute unconstitutional, when attacked by a different interest or in a different way, because of additional facts developed that did not exist at the time of the previous decision, and/or because changed conditions and additional facts have rendered the law unconstitutional in operation. It is my view, therefore, that this case as presented today must necessarily be considered on its merits in the light of facts and circumstances as they now appear and have now been developed, and that the case of Maxcy v. Mayo, therefore, is only authority for the constitutionality of the statute insofar as it affects such points and questions in the present suit as may have been directly involved and passed on in that case, and as to which there is not new information, or altered conditions, warranting a different holding.
"In this connection it might be well to correct an impression that it seems the answer and the defendants seek to establish, to-wit: that this is a suit by a small and vexatious minority, who are always objecting to any restrictive or regulatory law on the subject. It is clearly established beyond any question that this is a misconception of the situation and of the case, and that this suit is brought and sponsored by a great bulk of those interested in the grapefruit industry, representing approximately four-fifths of the grapefruit industry at least; and that those sponsoring this suit are, for the most part, made up of those honest, conscientious and able representatives and owners of the grapefruit industry, who, at the time of the decision in the case of Maxcy v. Mayo, were led to believe, and did believe, that the arsenic law was good and should be sustained; but who have since come to the conclusion that *Page 156 they were in error, and that the industry will be destroyed unless the arsenic law is eliminated.
"When men like John Snively and John Taylor, vice-president and president, respectively, of the Citrus Exchange, A. H. Blanding, member of the State Plant Board, Jim Morton, vice-president of the Clearing House, and Dr. Harris, a member of the Committee of Fifty, come into a suit of this kind, speaking as they do for a great bulk of the citrus industry, as well as the still greater majority of the grapefruit industry, it can be no longer correctly said, or intimated, that this is a suit by and on behalf of a vexatious and not-worthwhile minority."
"I cannot conceive of the great bulk of grapefruit growers, who are now desirous of using a limited amount of arsenic for the purposes mentioned, attempting to eliminate the arsenic law if there was the slightest possible danger of the grapefruit market being thereby in any way injured, or the grapefruit industry being in any wise injured, or the quality of the fruit being in any wise injured, because, of course, if the quality of the fruit was injured, then it necessarily follows that the market would be injured to that extent, and it appears to the court, therefore, and the court finds that the use of arsenic in limited quantities necessary to hasten the maturity of grapefruit, so as to give the grapefruit industry a chance to compete with that from other sections of the world, would in no wise injure the fruit or the market for the fruit, but would on the other hand enable the Florida grapefruit to better compete on the market with outside sweet grapefruit, and in addition would extend the season for grapefruit shipping so that the grapefruit could be better prorated over a longer period of time and thus prevent, to that extent, a glutting of the market, which now exists in the latter months of the season." *Page 157
"Much has been said about the amount of arsenic to be used, but it seems to me that the evidence established that the small amount of arsenic necessary to be used is clearly much less than the tolerance permitted by the United States Government, and that it could not and would not place as much arsenic in the fruit as is now allowed in fruit and vegetables by the United States Pure Food Laws. It also readily appears that the use of more than the small amount of arsenic required to hasten maturity of the fruit would do no good and serve no purpose whatever for the grower, and would not add anything to the hastening of the maturity of the fruit, but would, by lowering the juice content, bring the fruit under the requirements of the immature fruit law, and consequently it is absurd that the grower would use more than the limited amount necessary and impose that additional expense and handicap on himself. I mention this because it is contended that unless we have the arsenic law preventing all arsenic there would be no way to prevent those in the industry from using too much arsenic. Be it remembered, also, that the record clearly establishes that there are no anti-arsenic laws either in California or Texas, and it is contended, and written into the record by letter from those sections, that the people can be trusted not to use arsenic, and that they don't use arsenic. It is a matter of common knowledge in the citrus industry that the reason they do not use arsenic is because their soil, being such that it matures the fruit early and makes a sweeter fruit, (which seems to be in demand in the market), just as an application of a limited amount of arsenic would enable Florida grapefruit growers to produce, consequently there would be no need or incentive, or motive, for the growers of Texas and California to use arsenic. If the citizens of those two states can be trusted not to do that which would injure them, I am confident *Page 158 the growers of Florida are just as good citizens and have just as much sense, with reference to the protection of their industry, as have the citizens of California and Texas, and that the people of Florida could be trusted not to use arsenic when not necessary, and not to use more arsenic than would be of value to them, in lengthening their season and producing a quality of sweet grapefruit that would enable them to compete with those outside sections.
"Just here I should like to mention the suggestion that the effect of the application, of the small amount of arsenic necessary to hasten the maturity of grapefruit to the required extent, will render the fruit injurious to health. It seems to me that the evidence in this case establishes that the small amount of arsenic necessary to be used, and which would be used on the grapefruit to produce the desired results, would in no wise damage the fruit or render it injurious to health. For instance, the pamphlet published by Nelson Mottern, introduced in evidence in behalf of the defendants, sets forth the following:
" 'It seems desirable to make it clear that there is little danger of consumption of arsenic when eating fruit from sprayed trees — there is no detectable increase in arsenic in the juice, or pulp, of oranges from sprayed trees over that found in those from unsprayed trees.'
"The only other way in which the health factor is involved consists in the fact that certain foods, including fruits, are prescribed as a medical diet, because of certain vitamin properties they are supposed to possess. The theory is held by some that the vitamin properties are impaired by the use of arsenic as a spray on citrus trees, especially vitamin C. It does not appear to the court that the evidence introduced in this cause would warrant any assumption that any finding made with reference to oranges would apply to grapefruit, and so far as grapefruit is concerned, *Page 159 there is no recognized accepted medical opinion on the subject. On the other hand it appears from the affidavit of Dr. Boulware that grapefruit as distinguished from oranges is not generally prescribed as a medicinal diet for its vitamin properties, and that there are no published experiments as to grapefruit * * *.
"If anything more were needed to demonstrate that the danger to public health from the prohibited use of arsenic was not in the legislative contemplation, it is sufficient to point out that there is no statute forbidding the spraying with arsenic of other fruit and vegetable products which are extensively produced in Florida. Celery, strawberries, lettuce, tomatoes, are all sprayed with arsenic, and in such use the poisonous substance is sprayed directly on the edible portion. It is a fact well known, too, that tomato juice is prescribed as a medical diet largely for its vitamin C property; yet it has not been suggested that spraying tomatoes with arsenic impairs its food or medicinal value. Furthermore, the very Act in question, Chapter 11844, does not prohibit dusting with arsenic and does not prohibit the use of arsenic as a fertilizer. It is now known that fertilizing with arsenic through the soil has no appreciable effect, while dusting with arsenic is just as effective as spraying. These considerations show conclusively that the legislation was a mere experiment, and in the light of knowledge possessed today, wholly deprives the statute of the presumptions arising from legislative determinations.
"However, it seems to the Court that the question of whether or not the statute is constitutional under the police power on the ground that the Legislature had a right to prohibit the use of arsenic on the ground of public health, has no place in this suit, because, while ordinarily where a statute totally prohibits the use of any ingredient under all *Page 160 circumstances, it may be presumed that it is done on the basis of public health, the arsenic statute of Florida expressly negatives any possibility, or presumption, that it might have been enacted for the purpose and should not, therefore, be considered a legislative determination that the use of arsenic, in any amount on fruit, rendered the fruit injurious to health. The arsenic law expressly allows the shipping of arsenated citrus fruits regardless of the amount of arsenic used where the use of arsenic has been ordered by either the Federal or State Governments, and the Supreme Court of this State has held that fruit so sprayed could be shipped under the law."
"And that simply amounts to this: the law says if the spraying is ordered by either the Federal or State Government, no matter how great the quantity of arsenic used, the fruit may be shipped and sold to the consumer, but that if it is put on by the individual owners of the grove, without such legal authority, it cannot be shipped. And the record discloses that when the Government was spraying to dispense with the insect pest, arsenic solutions, perhaps eight or ten times as strong as that properly to be used for the early maturity of fruit, was sprayed upon the trees, and that it was sprayed on them about every ten days, instead of about twice per season, as is necessary for the hastening of the maturity of the fruit. To say, therefore, that the Legislature intended to pass this particular Act because arsenic in any quantity in fruit would be injurious to health is to say that the Legislature intended to adjudicate that citrus fruit sprayed frequently and heavily with arsenic under the direction of the Government is all right for public consumption and healthy, and that sprayed lightly and infrequently without instruction from the Government is unhealthy.
"Such a contention, it seems to me, in the face of the *Page 161 inhibition in the statute itself, is untenable. It would be unreasonable to assume that the Legislature would have permitted the shipping of such fruit if the Legislature had determined or was determining, that such fruit was injurious to health. It must follow, therefore, as a matter of reason and from a matter of common knowledge, and from the evidence in this record as to why such statute was passed, that it was passed solely and only because it was deemed by the Legislature to be necessary at that time to prevent its use because at that time it appeared to make it possible and to make it probable that it would enable certain growers to get on the market a dry and juiceless fruit, prematurely sweetened, so as to pass the sweetness test, but yet not fit for consumption, and thereby injure the market, be a fraud on the buying public and consequently injure the industry itself. In other words, that it was passed as a determination that it was necessary at that time to have that law for the benefit of the industry as a whole through the protection of the markets against immature fruit.
"Subsequently, however, in 1931, a statute was passed, which is mentioned but not otherwise considered in the case of Maxcy v. Mayo, fixing a juice content requirement for grapefruit and other citrus fruits, which eliminates, according to the evidence in the case, the possibilities of dry, green and unpalatable fruit being placed upon the market and thereby injure the market, which the arsenic law sought to prevent at the time the arsenic law was passed, and at which time there was no juice content law. It is, also, apparent from the record that after the passage of the said 1931 Act, providing for an ample juice test, it would be no longer possible to have such dry, immature and unpalatable fruit, and that the only effect of arsenic after that time would be to hasten the maturity of the fruit and permit the placing on *Page 162 the market during the earlier months of the season of a sweeter fruit, which would necessarily have to be a good and palatable fruit; otherwise, because of the new requirements of the 1931 Act, it could not be shipped. At the time of the passage of the said arsenic law, there being no juice content requirement in the law, the effect of arsenic was merely to make the fruit sweet enough to pass the other then-existing tests before it would have sufficient juice content to be palatable and salable fruit. For these reasons it seems to the Court that the statute itself precludes any possible consideration of the fact that it could have been passed as an exercise of the legislative rights under the police powers to protect the public health and welfare."
One of the exhibits introduced on behalf of the Commissioner of Agriculture was a technical bulletin No. 350 issued by the United States Department of Agriculture entitled "The Effect of Lead Arsenic Insecticides on Orange Trees in Florida," prepared by Miller, Bassett and Yothers in February, 1933. In that report among other things it is said:
"Only a trace of arsenic was found in a liter of orange juice when a tree had been given thirteen one-quart applications of fruit-fly bait spray at ten-day intervals. This mixture contained eight pounds of lead arsenic per 200 gallons. Eighteen daily applications of lead arsenate of the same quantity and the same strength were applied with the same result.
"Arsenic as arsenic trioxide (As2 O3) was found to the extent of 0.01 to 0.16 mg per liter of juice when 17 applications of five gallons of bait spray were made at ten-day intervals. Since the quantity of arsenic found in a liter of juice when the trees were very excessively sprayed was only a small fraction of a minimum medicinal dose, the juice *Page 163 from fruit trees normally sprayed could be in no way toxic for human consumption."
Among the exhibits introduced in behalf of the complainants was an affidavit by Hon. John S. Taylor, well known throughout this State as a man of rugged honesty, high character, and as one of the most experienced and successful citrus growers in the State. His affidavit reads a follows:
"My name is John S. Taylor. I reside at Largo, in Pinellas County, Florida; I am now and have been for 35 years a grower and shipper of citrus fruit; I have been a member of the Florida Citrus Exchange for eight years, and am now President of the Florida Citrus Exchange.
"I was a member of the Florida State Senate for the sessions of 1921, 1923, 1925 and 1927. I was President of the Senate in 1925 sessions, and the session of 1927, at which was enacted Chapter __________, known as the AntiArsenic Law. I was a member of the Special Citrus Committee of the Senate which had the consideration of the passage of that law and other bills affecting the citrus industry.
"At the time Chapter __________ was enacted the effect of spraying trees with arsenic was largely an unexplored field; the industry had been suffering for a great many years from the acts of a number of unscrupulous shippers who persisted in shipping immature fruit, the character of which was concealed by artificial coloring; the effect of such was to put in disfavor with the trade, so that Florida fruit, that came on the market later in a mature and ripened state, did not have the favor nor command the price that its merit and worth entitled it to. It was because of this adverse effect on the industry as a whole that the State of Florida undertook to legislate against the shipment of *Page 164 immature fruit; the whole purpose of such legislation has been the protection of the industry; the question of protecting public health was secondary. The Legislature of 1911 enacted the first law against immature fruit, Chapter 6236, Acts of 1911; that law did not prescribe any standard of maturity, so the session of 1913 enacted Chapter 6516, which prescribed the color test and the acid test. The next legislation was Chapter 10103, Acts of 1925, enacted during the session when I was President of the Senate. That law based the maturity standard on the percentage of soluble solids of the juice and the ratio of soluble solids to citric acid. By the time the session of 1927 came into being the practice had commenced in some sections of spraying with arsenic, which had the effect of enabling fruit so treated to pass the maturity test. The practice was not widespread, and research into the field had not then shown what the effect would be on the fruit; but it was the general feeling in the industry that users of arsenic were producing a fruit by such use that, while it passed the standards fixed by law, was nevertheless immature in fact, and in fact injurious to health. Accordingly the Legislature of 1927 enacted the Anti-Arsenic Law, Chapter 11844, and also Chapter 11875, amending and strengthening the provisions of Chapter 10103, Acts of 1925, the law against immature fruit. At that time it was believed that arsenic treatment of fruit by spraying the trees caused the fruit to become impregnated with arsenic and injurious to consumers. Also, it is a fact that at that time, the grapefruit produced in Texas and other sections had not begun to come into competition with Florida grapefruit to any great extent, and it was not then realized, as it is now known, that the use of arsenic spray as a means of stimulating and hastening the maturity of grapefruit would be essential in order for the Florida growers *Page 165 to compete with Texas and other sections producing an early-maturing fruit.
"Since the enactment of Chapter 11844, the Anti-Arsenic Law, I have kept in close touch with the fruit situation and have kept posted on the results of research, study and experiment in the use of arsenic spray. I have found that the use of arsenic as a spray on trees, in reasonable quantity, that is for the purpose of stimulating maturity, does not cause any residual quantity of arsenic to appear in the fruit itself, such content being practically non-existent; that it would be a physical impossibility for a person to consume enough fruit so treated as to obtain a toxic dose of arsenic; that the effect of arsenic on the fruit is felt entirely through the increased respiration of the foliage, and the effect is to inhibit the formation of citric acid and lower the citric acid content, thereby enabling fruit so treated to meet the acid test of maturity by law.
"The question whether the fruit is rendered insipid is entirely one of individual taste; Texas grapefruit by nature has a lower citric acid content than most of the fruit grown in Florida, and the question whether it is more or less appetizing as a result thereof, depends on the taste and preference of the consumer but it is a fact that the Texas industry advertises the sweetness of its product as one of its strongest selling features, and it is also a fact that in the past few years, Texas grapefruit has virtually captured certain markets from the Florida product.
"Because of these conditions, which are now known to exist, and because I feel that the continued prosperity of the grapefruit industry is at stake, I have become convinced that the reasonable use of arsenic spray as a means of accelerating the maturity of grapefruit is not only not injurious to the industry, but on the contrary the continued enforcement *Page 166 of the anti-arsenic law is threatening the life of the industry. The acceleration of maturity of grapefruit by this means is necessary not only to enable Florida growers' to reach the early market and compete with other sections, but it would lengthen the marketing season six weeks or two months and afford a greater spread for the absorption in the markets of the country of the productions of the industry.
"For these reasons, I am convinced that the Anti-Arsenic Spray Law is an unreasonable restriction on the industry, that it does not benefit the industry as it was designed and hoped, but it is a positive detriment to the industry."
In addition to the above affidavit there were a number of other affidavits of a similar nature signed by men prominent in the citrus industry in this State, introduced by the complainants; also a number of affidavits expressing views to the contrary introduced by the respondents.
But the scientific evidence introduced in behalf of the respondents, the Commissioner of Agriculture, and Charles P. Davis, Chief Fruit Inspector, show that the normal use of arsenical sprays, while it may lower the vitamin C properties of oranges, does not render the fruit, or the juice in the slightest degree injurious to the health of the consumer.
As shown above, by the bulletin of Miller, Bassett and Yothers, after the very heavy spraying of orange trees at ten-day intervals with arsenical sprays, the quantity of arsenic found in a liter of juice was only a small fraction of a minimum medicinal dose, and that "the juice from fruit trees normally sprayed could be in no way toxic for human consumption."
There was also introduced before the lower court, in behalf of the Commissioner of Agriculture, a paper read before the American Public Health Association, in September, *Page 167 1931, prepared by Messrs. Nelson and Mottern, of the Bureau of Chemistry and Soils of the Department of Agriculture at Washington, which was quoted from in the opinion of the lower court, in which they say that "There is little danger of consumption of arsenic when eating fruit from sprayed trees." In another part of their paper, Nelson and Mottern also say "Samples of the juice and pulp from the heavily sprayed and unsprayed oranges were examined for arsenic by the Gutziet Method, but this was not present in more than the mere traces present in most food products." They also said, "There is no detectable increase in arsenic in the juice or pulp of oranges from sprayed trees over that found in those from unsprayed trees."
The evidence also shows that oranges are more sensitive to the use of arsenical sprays than grapefruit, and certainly if the use of such sprays does not increase the arsenical content of the edible portions of oranges it is hardly probable that it would do so in the case of grapefruit. Indeed, the experiments thus far made by the chemists and scientists indicate that the use of arsenical sprays does not increase the arsenic content of grapefruit, and there is no evidence to the contrary. It appears from the evidence that there is some arsenic naturally produced and contained in practically all fruits and vegetables, but the evidence in this case on the application for temporary injunction, which is quite voluminous, each side submitting thirty-seven exhibits, leads to the irresistible conclusion that so far as science has thus far gone, there is not the slightest evidence that the normal commercial use of arsenical sprays increases the arsenical content of grapefruit, or renders it in any way deleterious to the health of the consumer, and there is no evidence based on scientific experiments to the contrary.
The evidence does show that the use of arsenical sprays *Page 168 on grapefruit, and oranges, retards and reduces the percentage of citric acid, and increased the ratio of the sugar content as related to the acid content, thus hastening the maturity of the fruit from a month to six weeks; but the overwhelming weight of the evidence shows that this does not render the fruit less palatable or in any way affect it deleteriously in so far as the effect on the health of the consumer is concerned. The Act under review recognized this fact, because it expressly authorizes the sale and marketing of citrus fruits upon which arsenic as a fertilizer or spray has been used under the orders of the Federal Government or the State Plant Board. See dissenting opinion of Mr. Justice Ellis in Maxcy v. Mayo,139 So. 2d 121, 132.
Section two prohibits the sale, transportation or marketing of any citrus fruit which shall contain "any arsenic, or any compound or derivative of arsenic," except fruit coming from a quarantined area. This section of the Act as written is either unconstitutional, or it is probably unenforcible. If under this section, construed just as it is written, the Commissioner of Agriculture could prohibit the marketing of any fruit containing "any arsenic, or any compound or derivative thereof," it would apparently give the Commissioner the power to destroy the citrus fruit industry of this state at will. If on the other hand the statute is construed to mean that arsenic thus found by the Commissioner or his inspector by the chemical analysis provided for in Section four of the Act shall be such an abnormal amount of arsenic as to indicate the use of arsenical sprays, it would appear from the above quoted evidence of the Commissioner's own expert witnesses in this case, that there is probably no known method of chemical analysis by which this section of the Act could be enforced if given such construction. For as we have seen above, the expert evidence *Page 169 introduced in behalf of the Commissioner was that "There is no detectable increase in arsenic in the juice or pulp of oranges in sprayed trees over that found in those of unsprayed trees." And the evidence does not show any method of chemical analysis for detecting arsenical content in grapefruit which varies from that used in detecting such content in oranges. So it appears that even if Section two of the Act should be held constitutional it would probably be impossible to enforce it.
We are of the opinion that the probative weight of the evidence submitted to the Chancellor upon the application for the temporary injunction justified the Chancellor in his conclusion that the use of arsenical sprays upon grapefruit inthe ordinary and usual course by growers in this State does notrender the fruit deleterious to health, nor does it have anyinjurious effect upon the marketing of Florida cittrus fruits. If these conclusions on the facts were justified by the evidence, the further conclusion of the Chancellor that the act in question was not constitutionally applicable to grapefruit was also justified. It follows that this Court would not be warranted in reversing the order of the Chancellor granting the temporary injunction.
The validity of nearly all police regulations of this nature depends upon the facts. The real question here involved is mainly one of fact. For instance, if the Legislature were to pass an Act prohibiting the use of bicarbonate of soda and phosphoric acid in the making of biscuit or other bread made for sale, and if upon attack in the courts it should be made to appear by the evidence that the use of such ingredients was in no way deleterious to health or to the marketability of the product, the courts would unhesitatingly declare such an Act invalid as an arbitrary and unreasonable exercise of the police power, invading the constitutional *Page 170 rights of the individual and the 14th Amendment to the Federal Constitution. The general principles of law governing the validity of police regulations was well stated in the case of Maxcy v. Mayo, 103 Fla. 552, 139 So. 2d 121. But the facts developed by the record now before us are quite different in many respects and require a different conclusion as tograpefruit, unless upon final hearing in this case on pleadings and proof the appellants can successfully rebut the evidence introduced by the appellees in the court below and show a different state of facts from those on the record as it stands before us now. But, whatever the final decision of the Court may be on final hearing upon pleadings and proof, we cannot say on the record before us that the Chancellor erred in granting the temporary injunction.
It follows that the order appealed from should be affirmed.
BUFORD and ELLIS, J .J., concur.