After careful consideration of this case, and again considering the case of Maxcy v. Mayo, 103 Fla. 552, 139 So. 121, I am unable to concur in the conclusions reached by the majority of the Court.
It now appears to me that Mr. Justice ELLIS expressed the proper view as to the validity of the Act under consideration in the dissenting opinion prepared by him in Maxcy v. Mayo,supra, and that, therefore, the holding of the Court in that case that the Act is valid should be overruled in the light of the record which is now before us in this case.
It appears to me that the reasoning adopted in the majority opinion must lead to the conclusion that Section 1 of the Act is invalid because of being in conflict with Section *Page 171 1 of the Declaration of Rights of the Florida Constitution. I cannot conceive that the Legislature has authority to denounce as a criminal offense an Act which is conceded to be harmful to no one and which may be beneficial to the property of the perpretator of the Act.
If the remainder of the Act had been so written and passed as to apply only as it is construed to apply in the majority opinion, then I could probably agree that the Act is valid, but, the majority opinion, as I read it, rewrites the statute, in applying the construction which is there given. The Act itself is vague, indefinite, uncertain and unreasonable and even with the favorable construction acceded to it by the majority opinion, it remains indefinite and uncertain because there is no standard either in the Act or in the opinion fixing the maximum arsenic content or defining the character or arsenic content which the fruit may contain without being subject to seizure and destruction. It is admitted that all the fruit possess some arsenic content and it does not appear to me that the guarantee of due process of law could be realized where the statute prohibits no arsenic content; the evidence shows that practically all the fruit involved has some arsenic content and it is left to the caprice, judgment or opinion of some individual to determine the maximum content of arsenic which the fruit may possess without being subject to seizure and destruction.
Certainly, the State, through its Legislature, may prohibit the sale of fruit for human consumption which has been adulterated, which is misbranded or which for any reason may be injurious to health, but it must fix some sort of standard by which the extent of content of the obnoxious substance is to be determined.
As I read the record, the great preponderance of the evidence shows that no difference can be determined by chemical *Page 172 analysis, so far as the content of arsenic is concerned, between the fruit which has not been sprayed with arsenic and that which has been sprayed with arsenic and upon this evidence being taken as expressing the fact, there can be no reason for upholding the statute, nor for that matter, for the making of a chemical analysis to determine the arsenic content.
It is contended that by the opinion and judgment of this Court in Maxcy v. Mayo, supra, this Court has forever settled the question of the constitutional validity of the Act. The opinion of the Supreme Court of the United States in the case of Abie State Bank v. Bryan, 75 Law. Ed. 690, establishes the contrary of this contention. The only theory upon which we could accept that contention is that it is the duty of appellate courts to correct the errors of inferior courts while perpetuating their own. This we do not concede. When an appellate court or judge is convinced that its, or his, former holding is erroneous such error should be as far as possible immediately pointed out and corrected.
It appears to me that the order of the Chancellor was based upon findings amply supported by the record and that it should be affirmed.
ELLIS and BROWN, J. J., concur.
ON PETITION FOR REHEARING