Mayo v. Florida Grapefruit Growers Protective Ass'n

In recently decided cases this Court has definitely held that Chapter 11844, Acts of 1927, as amended by Chapter 14485, Acts of 1929, is a valid exercise of legislative power. L. Maxcy, Inc., v. Mayo, 103 Fla. 552, 139 Southern Reporter 121; ExParte Kilgore, 106 Fla. 723, 143 Sou. Rep. 610. The same conclusion has likewise been reached in a late case decided by the Federal Courts. Kilgore v. Mayo, 54 F.2d 143.

That a police regulation, valid when made, may become, by reason of changed conditions affecting the subject of it, so arbitrary and confiscatory in operation or application, as to be capable of being subsequently struck down by judicial action, though previously judicially reviewed and then held to be valid, is to be conceded. See Abie State Bank v. Bryan,282 U.S. 765, 51 Sup. Ct. Rep. 252, 75 L. Ed. 690.

But in the case at bar, there is no showing in the record now before us, sufficient to bring the present attacks on the statute so recently held valid by this Court, as above indicated, within the rule of Abie State Bank v. Bryan,supra. This is so, because conditions affecting the subject upon which the statute was intended to operate, have not in any material aspect whatsoever changed in the interim of less than two years that has followed our previous decision holding the statute valid. And while it cannot be denied that the record now brought before the Court does show that much more is today known concerning the policy and wisdom of the statute as applied to grapefruit than was heretofore understood on that subject, such better understanding is not a "changed condition" such as was referred to in the Abie State Bank case, supra.

The injunction that has been granted in this case completely wipes the anti-arsenic-spray statute off the books insofar as grapefruit is concerned. By it the Commissioner *Page 124 of Agriculture is not only restrained from seizing and confiscating any grapefruit which, upon chemical analysis, he finds to "contain" arsenic, but the Commissioner and his inspectors are further restrained from either enforcing or attempting to enforce "any" of the provisions of the Arsenical Spray Law (Chapter 11844, Acts of 1927 as amended by Chapter 14485, Acts of 1929) against the complainants, as to any grapefruit grown by them during the year 1933, now upon their groves. This precludes the right to inspect as well as the right to seize.

The injunction therefore forbids defendants to institute any criminal prosecution under Section 1 of the Act; permits shipments of grapefruit in contravention of Section 2 of the Act, although it may in fact be found to "contain" any quantity of arsenic; prohibits the Commissioner of Agriculture from inspecting any citrus fruit at any packing house or elsewhere, as authorized by Section 3; and in contemplation of law completely writes out of the statutory law any application of any provision of the Act to grapefruit, regardless of whether the grapefruit in question contains arsenic, or not.

It is a well settled canon of constitutional law that before a comprehensive legislative Act can be struck down by the judiciary as being an arbitrary violation of personal or property rights guaranteed by the Constitution, it must be first construed, if possible, in such fashion that its validity can be saved by giving the statute such construction as will make it conform to the organic law. D'Alemberte v. State,56 Fla. 162, 47 Sou. Rep. 489; Jacksonville v. Bowden, 67 Fla. 181,64 Sou. Rep. 769, Ann. Cases 1915-D 99; Anderson v. Ocala,67 Fla. 204, 64 Sou. Rep. 775, 52 L.R.A. (N.S.) 287.

It is also a well settled rule that the courts must uphold *Page 125 a statute unless it clearly appears beyond a reasonable doubt that it is unconstitutional. Stewart v. DeLand, etc., Road Bridge District, 71 Fla. 158, 71 Sou. Rep. 42.

Another rule is that a statute is not presumed to contemplate an unreasonable exercise of the authority conferred on officers by it, particularly when material property and personal rights are involved. Willis v. Special Road District, 73 Fla. 446,74 Sou. Rep. 495; Getzen v. Sumter County, 89 Fla. 45,103 Sou. Rep. 104.

There is no doubt, as a matter of constitutional law, that a police regulation in the form of a statute, may be inquired into by the courts, even to the extent of their taking testimony for the purpose of demonstrating its wholly arbitrary and unreasonable character, when the purpose of the inquiry is to have a statute judicially declared unconstitutional in application, though fair and valid on its face. Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 Sup. Ct. 320, 70 L. Ed. 654; L. Maxcy v. Mayo, supra.

But it is equally well settled, as a rule of constitutional law, to be observed in the decision of cases of the character last mentioned, that a mere preponderance of the evidence, or of other evidentiary considerations, is not sufficient to warrant the declaration by the courts that a statute, though fair on its face, is unconstitutional in its practical operation, because the rule is, that in order to declare any statute unconstitutional, it must be found so by the courts beyond any and all reasonable doubt. Martin v. Dade Muck Land Co., 95 Fla. 530, 116 Sou. Rep. 449.

In view, therefore, of the obvious importance of this litigation to the State, and because of the property interests of a large number of grapefruit producers who may be hurt by the challenged statute, if it be declared valid, but without first stating the construction which must be placed upon it *Page 126 in order to remove any doubt on the score that it is unconstitutional, it is advisable that the statute be first judicially construed before the objections to its constitutionality are ruled on by this Court.

The object of the statute, as expressed in its title, is to prohibit under penalty of criminal prosecution, as well as forfeiture of the adulterated citrus fruit, the sale or transportation of citrus fruit found to "contain" arsenic.

But since arsenic is one of the common elements of the earth, such as is hydrogen, gold, iron, silver and the like, and is therefore likely to be found in more or less tangible form in the natural state of all fruits and other articles of food, wherein it performs a useful service by supplying what is needed of that element to round out the functions of nature in its ordinary processes, it is obvious that the prohibition of the statute is not directed at citrus fruits which have come to a state of ordinary maturity containing a detectable, but normal, trace of the arsenic element as it is produced innature.

On the contrary, the statute is aimed at thepractice of producing in the citrus fruit, through artificial means, such as the use of arsenic for spraying, dusting, fertilizing and the like, an unusual and abnormal amount of insidious arsenic, such as is commonly known to science to result from the applied drug, when deliberately employed on the citrus trees to produce chemical reactions in the fruit thereof, that would not otherwise occur in a state of nature.

That arsenic is a metallic poison, having lethal propensities when taken into the human system, and that its use on, or in connection with the production of vegetables and fruits for human consumption, is commonly feared as a possible source of poisoning producing injury or death when improperly *Page 127 used, is a fact of which this Court takes judicial notice.

This Court must likewise take notice of the fact that the production and sale of citrus fruits, in the growing of which arsenic has been artificially applied for the purpose of bringing about an abnormal change in the natural composition of the edible portion of such fruit, is a practice tending to depreciate not only the quality of the fruit so produced, but is one that has an inevitable tendency toward injuring the fruit's good reputation as being fit and wholesome for the ordinary purposes for which citrus fruits are commonly marketed and sold.

Accordingly an Act of the Legislature enacted for the purpose of suppressing the production and marketing of that kind of citrus fruit whose reputation will be, when offered for sale in the markets, that it is not a naturally grown product of the citrus tree, but is a counterfeited one, the chemical analysis of the edible portion of which discloses the presence therein of a detectable amount of insidiously induced arsenic (a known and commonly feared poison) is well within the police power of the State as an appropriate legislative measure for the protection of the good reputation of the Florida citrus industry in the markets of the nation. It is likewise one that may be sustained as having some reasonable relation to the preservation of the public health, safety and welfare of the consuming public.

To sustain such an Act of the Legislature as a valid police measure, it is not essential that it be supported by a legislative finding that the necessity for the Act arises out of the fact that the inhibited article of commerce will be actually poisonous to the consumer in use.

Such an Act may be predicated upon the common knowledge of the Legislature that without a law against the practice, *Page 128 some growers will attempt to produce and market a fruit that will subject the whole citrus industry to harmful suspicion that, through the manner of its cultivation, a substantial portion of the output has been made to contain a demonstrable quantity of insidious poison artificially brought about in the edible portion thereof. Thus, on grounds of promoting the general welfare alone, the Legislature may prohibit any harmful practice whose tendency is to engender such fear and distrust in the minds of the buying public that it will likely refuse to purchase at all, any fruit produced in the State where such manner of cultivation is known to be a permissible practice. And when general indulgence in such injurious manner of cultivation is found, its existence will warrant the Legislature in adopting and enforcing, as a means of obviating the harmful effects thereof on the industry, a complete system for inspecting and eliminating at the source of supply, all such fruits as may, upon appropriate chemical analysis, be found to "contain" a demonstrable quantity of an applied poison (such as arsenic) even though the fear of the consuming public may be greatly exaggerated or wholly unfounded as to the injurious consequences of consuming the fruit in question.

And so it is also, that the Legislature must be acknowledged the power under the circumstances just stated, to discourage any practice that tends toward the bringing about of such conditions affecting an industry. This it may lawfully accomplish by entirely forbidding acts which it finds impossible to control by regulation.

So the present statute now being considered must be construed as having for its object (1) the suppression of thepractice of using arsenic in the cultivation of any kind of citrus fruits, because of the known propensity toward abuse of it when use of arsenic is permitted without supervision, *Page 129 and (2) the giving of an assurance to the buying public that, by a system of State inspection and elimination at the source of supply, no citrus fruit "containing" insidious arsenic, artificially induced therein in a detectable quantity capable of being demonstrated by chemical analysis, will be allowed to be either sold or transported for sale, to the consuming public. The circumstance that the application of the statute to particular localities may also incidentally have an adverse economic effect on the early marketing of citrus fruit produced in such localities, is a matter for legislative consideration as one of legislative policy, and is not a judicial question for the courts to decide if the statute is otherwise an appropriate and constitutional exercise of the State's police power to regulate the production and marketing of citrus fruits.

Section 1 of Chapter 11844, Acts of 1927, as amended by Chapter 14485, Acts of 1929, was intended to operate as a criminal statute. It is enforceable as such only because it appears to be judicially sustainable by this Court as a reasonable and necessary means of rendering effective the policy of the State to prevent the abuse of producing for the market immature and otherwise deficient citrus fruit. By this section is sought to be discountenanced the practice of using arsenic in fertilizer and sprays on trees to produce thereby a resultant condition in the citrus fruit thereof that enables it to evade an established test of maturity designed to test the ripeness of the fruit in its normal condition, uninfluenced by the chemical reaction of arsenic applied to the trees for the purpose of creating in the fruit an ostensible state of maturity that the latter does not truly possess.

Section 1 relates to the initiatory marketing procedure involved in the cultivation of the citrus trees for purposes of production of citrus fruit for market, as distinguished *Page 130 from any possibly discernible effect in the citrus fruit itself. Whenever a violation occurs under Section 1 of the statute, it is complete at the time any arsenic, or its derivatives, is used as a spray or fertilizer on the bearing citrus trees themselves.

The theory on which the validity of Section 1 has been sustained as a valid police regulation is that even though spraying citrus trees with arsenic, or using it as a fertilizer in reasonably small quantities, may in many instances be innocuous in itself, and even beneficial in effect on the trees or fruit when moderately done, nevertheless the impracticability of regulating such use, so as to keep it restrained to a safe degree, has been found to be so great that an absolute prohibition of the practice must be resorted to by the State Legislature as a means of obviating the opportunity for the carrying on of the evil practice of excessive arsenation that had been found by the Legislature necessary to be suppressed for the public welfare. The rule is well settled that in such cases altogether innocent practices may be constitutionally prohibited as a means of breaking up a generally recognized evil practice that has been found to be reasonably susceptible of suppression by no other practicable method. L. Maxcy, Inc., v. Mayo, supra, and cases cited therein.

But Section 2 of Chapter 11844, Acts of 1927, as amended by Chapter 14485, Acts of 1929, deals with a different situation. Under that Section, the prohibition is not so much against thepractice of using arsenic on bearing citrus trees (which conceivably may or may not be an evil, depending on the kind of fruit, the degree of use and the duration of the practice) but is to take effect against an ascertainable result, namely, the presence of unnatural arsenic in analytical quantities in the edible portion of the fruit itself, when *Page 131 such fruit is tested according to the standards and methods of procedure set up by Sections 4, 5 and 6 of the same statute.

Under Section 2 it is unlawful for one to sell, offer for sale, transport, prepare, secure or deliver for transportation or market, any citrus fruit of any variety (which includes grapefruit) that shall "contain" arsenic, or any compound or derivative of arsenic. That the State may lawfully prohibit the disposition of an article intended for human consumption, containing deleterious chemical substances, whether poisonous or not, is amply sustained by authorities. Such action may be taken not only as a permissible health measure, but also as a police measure for preventing frauds, deceptions and impositions from being practiced on the buying public. State v. Layton, 160 Mo. 474, 61 S.W. Rep. 171 (alum in baking powder); Powell v. Pennsylvania, 127 U.S. 678, 8 Sup. Ct. 992, 1257,32 L. Ed. 253 (butter and cheese substitutes); Capital City Dairy Co. v. Ohio, 183 U.S. 238, 22 Sup. Ct. 120, 46 L. Ed. 171 (harmless coloring matter in butter and cheese); People v. Price, 257 Ill. 587, 101 N.E. Rep. 196, Price v. People of the State of Illinois, 238 U.S. 446, 35 Sup. Ct. 892, 59 L. Ed. 1400 (prohibiting boric acid in food products).

But under Sections 2, 4, 5 and 6, before a seizure and confiscation of alleged arsenated fruit can be lawfully accomplished, the edible portion of the alleged contraband citrus fruit must, upon a chemical analysis thereof made as prescribed in the statutes, be found to "contain" arsenic, or some compound or derivative of arsenic, not normally occurring therein in a state of production where arsenic sprays or fertilizer have not been used. The fact that the trees producing the fruit may be known to have been sprayed or fertilized with arsenic sprays or fertilizers in violation of *Page 132 Section 1 of the Act, may afford a ground for criminal prosecutions of the offending producers, but per se affords no ground for seizing and forbidding the shipment of such fruit, unless the seized fruit itself discloses by chemical analysis that it does, in fact, "contain" arsenic in the sense of that term as used in the law.

The purpose of this portion of the statute is to give the consuming public the assurance, by means of an adequate system for examination and policing of the fruit at the source of supply, that Florida citrus fruits, as actually placed in the channels of trade and commerce, shall not "contain" any arsenic capable of being demonstrated by actual chemical analysis of the edible portion thereof. Such statutory purpose is as fully served if the fruit of sprayed trees is actually made to pass the prescribed arsenic test, as if such trees had never been sprayed at all. This is so because the actual condition of the fruit when offered for transportation and marketing at the point of inspection is what fixes the criterion for applying Section 2. Section 1 is adequately enforceable by ordinary criminal prosecutions of the offending parties.

In Kilgore v. Mayo, 54 F.2d 143, the holding of the Federal Court was that due process of law was not denied by the procedure set up for inspection, seizure and destruction of alleged contraband fruit, because of the requirement of the statute that the fruit, after seizure, be held by the Commissioner of Agriculture, or other seizing agency, a sufficient length of time thereafter to permit of judicialreview of the act of seizure before confiscation ensued. Stated another way, this is in effect an authoritative holding that in every case of actual stoppage or seizure of citrus fruit on the charge that it has been found to "contain" arsenic, the owner is entitled to seek and to have the benefit *Page 133 of a judicial review of the Commissioner's findings on that score, and to have judicially determined in appropriate proceedings prior to confiscation, whether or not the fruit involved is, or is not, justly subject to condemnation. And on that issue the owner would be permitted by the court trying the case, to offer countervailing evidence of analyses made by his own experts to rebut adverse findings arising from chemical analyses made by agents of the State.

So the constitutionality of the statute is adequately safeguarded by confining the operation and effectiveness of Section 2 thereof, to those cases wherein it is established that the citrus fruit sold, transported, prepared, secured, or delivered for transportation, or market, does "contain any arsenic, or any compound or derivative of arsenic." If it does not, Section 2 of the statute cannot be applied to it. If it does, the owner has no ground for complaint, because, as has been pointed out, the State may constitutionally prohibit fruit containing drugs deemed by the Legislature to be deleterious, from being marketed or sold to the detriment of the reputation of the citrus industry, or in jeopardy of the public health, safety and welfare.

The fact that Section 1 of the statute may have been violated, as has been pointed out, may afford ground for a criminal prosecution. But in and of itself, the mere violation of that section presents no ground per se for the seizure and destruction of the resultant fruit, since Section 2, construed in connection with Sections 4, 5, and 6, controls the latter subject.

But this is not to say that the Commissioner of Agriculture, and his agents, may not, when made aware of violations of Section 1, more rigidly inspect and apply at the packing house or other established inspection point, the authorized arsenic tests to fruit picked from unlawfully *Page 134 sprayed trees. Such tests are provided for as a part of the procedure for enforcing Section 2. Only by so executing the law, can it be made certain that citrus fruit attempted to be marketed or sold, actually contains no arsenic of the character denounced by the statute prohibiting such fruit from being transported and disposed of.

Summed up, Section 2 of the statute, as it should be construed by this Court, undertakes to prohibit the marketing or attempting to market grapefruit, as well as other citrus fruit, which is found to "contain" arsenic to a degree demonstrable by a chemical analysis of the edible portion thereof.

Whether the prescription of such an inhibition results in unfair treatment to certain growers of that fruit, as compared with others more favorably situated as to soil, climate and the like, may give rise to a serious question of legislative policy, but not to a justiciable one. With the wisdom or policy of legislative acts the courts have nothing to do, unless vested rights are plainly impaired, or the equal protection of the law is denied.

It is true that the statute on its face provides that in cases of quarantine, where insect pests must be controlled by the use of arsenic sprays, that such use may be legitimately (and we presume safely) employed. It is also evident that the resultant fruit is permitted to be marketed without any supposed injury to the industry, the public health or the general welfare.

But it is only in cases of quarantine that any such exception is made. And this is no doubt done because of the obvious necessity of the case. It is probably countenanced during a period of quarantine only because of the fact that use of the arsenic during a quarantine period is usually subject to the constant supervision of the State and Federal *Page 135 authorities who are thereby enabled to prevent and avoid those abuses which the Legislature has found have a tendency to follow where no such vigilant supervision can be maintained.

There is nothing in the record in this case which would warrant the Court in holding the statute, as must be construed by it, not constitutionally applicable to grapefruit as well as to other citrus fruit. The very able opinion of the Chancellor holding to the contrary was probably arrived at upon a less liberal construction of the statute than this opinion has placed upon it. This is a class suit wherein the whole Act has been attacked and held void in its entirety as applied to grapefruit. Any alleged abuses or usurpations under color of the statute are not here involved, although it has been asserted in argument that broader powers are being claimed by the Commissioner of Agriculture than the statute warrants.

If any abuses or usurpations are in due course of procedure by a proper bill in equity charged and sustained, nothing that has been said is to be construed as barring the Chancellor from hereafter considering on such separate bill, and affording to the complainants adequate redress thereon, by injunction or otherwise. Nor is anything herein stated to be construed as a bar to any appropriate relief which may be sought to enjoin upon the officers of the State a proper compliance with the terms of the statute in their course of executing it, by staying within and not exceeding the proper scope of the powers conferred.

WHITFIELD and TERRELL, J. J., concur.

ELLIS, BROWN and BUFORD, J. J., dissent.