In August, 1933, The Florida Grapefruit Growers' Association, a corporation not for profit, organized under the laws of Florida, joined by certain *Page 136 citizens of Polk, Highlands, Lake, Hardee, Pasco and Pinellas Counties, all owners of citrus groves in their respective counties, exhibited their bill in chancery in the Circuit Court for Polk County against Nathan Mayo, as Commissioner of Agriculture of the State of Florida, and Charles P. Davis, as Chief Fruit Inspector "under the Commissioner of Agriculture."
The purpose of the bill was to secure an injunction against the Commissioner of Agriculture and Mr. Davis, as Chief Fruit Inspector, prohibiting them from attempting to enforce any of the provisions of the "Arsenical Spray Law" (Chapter 11844, Laws 1927, as amended by Chapter 14485, Laws 1929) against the complainants, and against any grapefruit grown by them during the year 1933 and now upon their groves, and against other persons in the same class as complainants. The bill also prayed that the court decree the "arsenical spray law" and its amendment to be void and unenforceable. Attached to the bill as an exhibit there is a copy of a petition addressed to the Legislature of 1933 signed by forty-nine persons including representatives of corporations praying that the above mentioned statutes be repealed or amended so as not to be applicable to grapefruit. That petition shows that the number of boxes of grapefruit estimated for the season of 1932 and 1933 to be handled by the petitioners was more than twenty-eight million.
The defendants moved to dismiss the bill as to all the complainants except the persons named as complainants from Polk County, the grounds being in the substance that the suit is local in character and may be maintained only in the county where the land and crops of grapefruit lie; that the court therefore has no jurisdiction of the "grapefruit" of any complainant alleged in the bill to lie without the *Page 137 County of Polk and therefore there was a misjoinder of parties complainant.
At the same time the defendants interposed an answer to the bill. The answer denied that the "question involved is of any common or general interest to any persons whatever, constituting a class or otherwise," by which it was probably meant that the enforcement of the statute as to grapefruit and the enforcement of the "rules and regulations" complained of in the bill would in no degree prevent Florida grapefruit from entering into full competition in the markets with such fruit from Texas and other States. The answer also avers that the grapefruit growers in the counties named do not represent 80 per cent of the producers of grapefruit in the State but constitute a "decided but contentious and troublesome minority among the grapefruit growers of Florida." The answer avers that the legislation attacked by the bill has for its purpose the prevention of a "fraud being practiced upon the consumer, whether deleterious to his health or not, which prevention would in turn protect the reputation of the industry as a whole;" this, avers the answer, constitutes the "broader basis" for the statute than the prevention of the shipment of immature fruit which would be deleterious to the health of the consumers.
In paragraph 19 of the answer defendants contend that the application of arsenic in any quantity does not "actually stimulate the maturity of fruit," but its use provides an "artificial means" which "allows the fruit to pass a maturity test;" that Chapter 14485; Laws of 1929, "was purely an emergency measure to meet the crisis confronting the fruit growers of Florida as a result of the Mediterranean Fruit Fly campaign."
In paragraph 23 of the answer the position seems to be *Page 138 taken that the use of arsenic as a spray renders grapefruit injurious to the consumer and makes it unfit for consumption. It is averred that the consumption in sufficient quantities of grapefruit where the trees have been sprayed with arsenical spray "would cause to the consumer a toxic dose of arsenic" and "that the residual quantity of arsenic found in fruit grown upon trees so sprayed is greater than the tolerance point fixed by the United States Government under the Pure Food Laws." It is averred that the use of arsenic as a spray "renders grapefruit injurious to the consumer and unfit for consumption."
The answer then proceeds to aver what other effects arsenical spray has upon grapefruit as follows: it "interferes with the sugar content, retards the formation of citric acid, reduces the total amount of sugars contained in such fruit, lessens or destroys vitamin 'C' content, reduces in volume the juice content of such fruit and renders the pulp dry and ricy and adversely affects the keeping qualities of such fruit both as to fresh and canned fruit."
It is insisted that it is "utterly impossible to regulate the use of arsenic without an absolute and complete prohibition," and that the Legislature determined by the enactment of the legislation attacked. It is supposed that this averment means that the use of an arsenical spray does not necessarily injure the fruit or produce in it a menace to the health of the consumer, if the use of the spray is guided by a reasonable discretion both as to the arsenical content of the spray and the number of applications made to the trees, but the matter cannot be left to human discretion so the Legislature prohibits the use of arsenic in a spray or in a fertilizer absolutely.
As the answer undertakes by its averments to justify the Legislative wisdom in the enactment of the statute, I notice *Page 139 the above averment as one which amounts in substance to an admission that the reasonable use of fertilizers and sprays containing a negligible quantity of arsenic would not be injurious to the health of the consumer or deleterious to the fruit as an article of food value, but as in legislative wisdom "mankind is unco weak and little to be trusted" he cannot, even in the creation and development of Florida's great citrus industry, be trusted to use a spray for his trees or a fertilizer for his land which contains a poison known as arsenic, because some men would use it in too great a quantity and too frequently, thus destroying the industry by ruining the fruit as a food and endangering the health of the public that consumes it. So an absolute prohibition of its use was necessary.
However, when the Federal Government, or the State Plant Board orders such fertilizer or spray to be used to destroy the Mediterranean Fruit Fly such legislative wisdom is suspended and fruit within the quarantined area may go forth to the market in jeopardy to the reputation of the fruit as an edible commodity, and the health of the people in whom a "toxic condition" may be produced from eating it and spraying with a preparation containing arsenic becomes no longer a violation of law. The answer avers that the use of arsenic in a spray is used "in order to produce a fruit which will be so artificially treated as to pass a maturity test sooner than otherwise the lusciousness, sweetness, palatability, nutritious quality, taste and juice content are so lessened and virtually destroyed as to create a definite prejudice against further fruits from Florida which are allowed to mature and ripen as nature intended."
Thus it is argued that in placing grapefruit from trees sprayed by an arsenic spray or fertilized by an arsenical fertilizer upon the market at the beginning of the season *Page 140 "the market for the balance of the season is virtually destroyed because of the prejudice in the minds of the consumers," regardless of the quantity of arsenic used in either spray or fertilizer and the frequency of its application. It is also averred that the continued use of an arsenic spray of any quantity over a long period of time, "to-wit: five years or longer, will result in the destruction of the tree upon which it is used." It is also argued in the answer that if arsenical sprays used on citrus trees hasten the maturity of the fruit and increases its sugar content the growers in Texas and other parts of the world "will promptly begin to use the same, and thereby get their fruit to market as much sooner than the Florida fruit as is now possible."
In this argument the averred danger to health and the "toxic condition" produced in the consumer by such fruit, and the "prejudice in the minds of consumers" against fruit the trees of which have been so treated, seems to have been lost, because it is not reasonable to say that if such conditions result to the popularity and marketability of grapefruit the trees from which have been sprayed or fertilized with a spray or fertilizer containing "arsenic or any of its derivatives," that other growers in other parts of the world would follow the example of the "contentious and troublesome minority" which is represented in this cause.
It is also averred that the "root stock" used in producing grapefruit is as essential to good fruit as "soil or climate," and that the Texas growers use a "lime stock instead of a sour orange stock," which is ordinarily employed in Florida, and that it is not necessary therefore to use an arsenical spray on grapefruit trees to enable the Florida grower to compete with the Texas grower. It is also averred that the use of arsenic in sprays and fertilizers for grapefruit trees is done for the sole purpose of overcoming the tests which *Page 141 have been devised to "determine when fruit is fit for consumption so as to protect the market as a whole." It seems to be averred that such tests are "based upon the natural process of nature, essential to produce fruit of proper quality." The answer contains a lengthy account of the transactions of the Legislature of 1933 relating to a proposition pending before it to amend or repeal the statutes in controversy. The answer admits that it is the intention of the Commissioner of Agriculture and the Inspector "to enforce the laws regarding this matter by seizure and destruction, which shall be carried out in exact accordance therewith," and denied that in so doing the constitutional rights of the complainants will be in any wise impaired or denied to them, or that interstate commerce will be impeded thereby.
The answer contains a motion to dismiss the bill of complaint on the ground that it is without equity and that the statute attacked is valid, and other grounds.
The cause came on to be heard on bill, answer, motion to dismiss, and certain exhibits filed before the Chancellor numbered from one to thirty-seven complainants' exhibits, and one to thirty-seven defendants' exhibits. The Chancellor granted the preliminary injunction prayed for by the complainants. The defendants entered an appeal from that order to the Supreme Court.
I have given a somewhat lengthy narrative of the averments of the answer to show the nature of the defense interposed to the relief sought.
The bill alleges in substance as grounds for the relief prayed that the complainants are grapefruit growers in Florida, and had, at some time during the progress of the present crop of grapefruit to maturity, either fertilized the ground upon which the trees grew or sprayed the trees *Page 142 bearing the fruit with fertilizers or sprays containing arsenic.
The complainants attack the validity of Chapter 11844, Laws 1927, as amended by Chapter 14485, Laws 1929, supra, and secondly that the attempted application of it to the complainants and their property consisting of grapefruit, the trees bearing which have been sprayed with a preparation containing arsenic in a reasonable proportion to the bulk of the spray used and at reasonable intervals, is unlawful because it would deny to complainants rights secured to them by the Constitution of Florida, it would be an arbitrary invasion of private property, have no reasonable relation to the legitimate public purpose to be accomplished by the Act, and would be an unreasonable interference with private business.
It may be well to consider the history of the legislation attacked in which there may be discovered the motive for its enactment and the end to be attained, which to be valid must bear a reasonable relation to the public purpose sought to be attained and not a forced or strained relation, and that the interests of the public generally require the interference with the industry which the Act contemplates.
The citrus industry, if that term is applicable to the production of fruit for the market, has become a very large one in Florida. Many thousands of people are employed in it in one capacity or another, and many millions of boxes of fruit are disposed of in the market to consumers in Florida and to consumers in other States. By far the larger part of the crops is disposed of in interstate commerce to the people of other States. The producers of such fruit in this State are not without their competitors in Texas, California and Puerto Rico. Due to differences in climate and soil, and possibly to a lack of legislative restrictions *Page 143 in the matter of the cultivation of the fruit in other countries or States, the growers in Texas, California and Puerto Rico succeed in getting their fruit into the market of the United States a few weeks earlier than the fruit in Florida matures by processes of nature unaided by artificial means.
The assumed danger to the consuming public in the matter of health, and the possible resultant danger to the so-called industry by flooding the market with immature and unwholesome fruit, led to the enactment of a law forbidding the shipment of immature fruit deleterious to health. See Chapter 6236, Acts 1911.
That Act was attacked in Sligh v. Kirkwood, 65 Fla. 123, 61 So.2d Rep. 185, as being repugnant to interstate commerce regulations. The Act carried a penalty by fine and imprisonment, or both, for violating the provisions of the Act. The Act was upheld as being within the police power of the State in that it dealt with deleterious immaturity of fruit, and that it was not an infringement of interstate regulations of commerce as Congress had not by any congressional Act entered the particular field prohibiting or regulating the shipment of immature fruit. The Act was upheld as being in obedience to the police duty and power to protect the public health.
The case was considered by the Supreme Court of the United States. See Sligh v. Kirkwood, 237 U.S. 52,35 Sup. Ct. Rep. 501, 59 L. Ed. 835. Mr. Justice DAY delivered the opinion of the Court. In the course of his opinion he said: The single question presented is whether it is within the authority of the State to make it a criminal offense to deliver for shipment in interstate commerce citrus fruits — oranges in that case — which were "then and there immature and unfit for consumption." "It will be *Page 144 observed," said the learned Justice, "that the oranges must not only be immature, but they must be in such condition as renders them unfit for consumption; that is, giving the words their ordinary signification, unfit to be used for food." Italics supplied. Continuing he said, Of course, fruits of this character, in that condition, may be deleterious to the public health, and, in the public interest, it may be highly desirable to prevent their shipment and sale."
The Court also held that immature fruit deleterious to health was not within the pure foods Act, although decomposed and putrid vegetable substances were. So it became established in Florida that the prevention of shipment not only in interstate commerce, but for local consumption of immature citrus fruit which was unfit to be used for food was a proper exercise of police power. The Florida case was decided by the Supreme Court of this State in February, 1913. Sligh v. Kirkwood,supra.
So in 1913 Chapter 6515 was enacted, without the approval of the Governor, which provided that oranges or grapefruit that contain less than 1.30% and 1.75% respectively of acid calculated as crystallized citric acid shall be considered mature, but if those fruits contained more than such proportions by weight of crystallized citric acid they shall be considered "immature and unfit for consumption," but that oranges or grapefruit showing an "average on the trees of one-half color, indicating ripeness, shall be deemed to be mature and fit for consumption" and may be sold without first being submitted to the acid test; that the enforcement of both Chapters 6236 and 6515 shall be under the general provisions, rules and regulations of the Pure Food and Drugs Law, Chapter 6122, Laws 1911. The Governor appointed the Citrus Fruit Inspectors under Chapter 6515, supra. *Page 145
That Act was construed by this Court in the case of Moran v. LeJune, 78 Fla. 643, 83 So.2d Rep. 668. It was decided that the primary test of maturity was color, that the acid test was secondary and was not necessary where the oranges or grapefruit showed an average on the trees of one-half color. The Court said, when they meet the color test they will be deemed "mature and fit for consumption, and may be shipped or sold without being submitted to the acid test." The Court observing that the "Legislature recognized another condition that nature sometimes delays the application of her paint brush until after the fruit are fit for consumption, and gave the grower an opportunity to show that condition by the acid test provided for in the statute."
Sometime between the passage of the Act, Chapter 6515,supra, and the enactment of Chapter 10103, Acts of 1925, a practice of using arsenical sprays developed in some sections which had the effect of hastening the maturity of the fruit as indicated by color.
Chapter 10103, supra, was entitled "An Act to Prohibit the Sale or Transportation of Citrus Fruit That Is Immature or Otherwise Unfit for Consumption, and to Provide for Enforcement Thereof." By express provision in that Act the term "Citrus Fruit" applied only to oranges and grapefruit. The Act prohibited the shipment or sale of citrus fruit between August 31st and November 26th unless the same was accompanied by a "certificate of inspection and maturity," and between November 26th and August 31st, when inspection was not required, the transportation or sale of citrus fruit which was "immature or otherwise unfit for consumption" was forbidden.
This seems to be the first effort to make by legislative fiat the word "immature," as applied to citrus fruit, synonymous *Page 146 in meaning with the phrase "unfit for consumption." The Act provided for the so-called acid test for grapefruit and oranges. The ratio of total soluble solids of juice to anhydrous citric acid decreased as the percentage of soluble solids increased in the juice of the fruit. The Brix Hydrometer was required to be used to determine the total soluble solids and the acid to be determined by titration of the juice, using alkali and Phenolphthalein as the indicator.
Then the Legislature enacted Chapter 11844, Laws 1927, and in 1929 amended it by Chapter 14485. Under Chapter 11103 the Governor appointed the Inspectors upon the recommendation of the Commissioner of Agriculture. In 1927 the Act was amended by Chapter 11875. By the latter Act the Commissioner of Agriculture was empowered to employ the Inspectors.
In 1931 the Legislature enacted Chapter 14662, which is a revision of the entire subject relating to the sale or marketing of citrus fruits, (by that Act extended to tangerines) which are not mature in accordance with the maturity standards provided for in the Act. The Act provided that it should not apply to the sale or transportation of citrus fruit for the purpose of canning said fruit. Full provision is made by that Act for inspection of the fruit for maturity through the agencies of the Commissioner of Agriculture and standards are prescribed by the Act by which it may be determined when citrus fruit may be deemed to be mature. The Act empowers the Commissioner to make and promulgate rules and regulations for carrying out and enforcing the provisions of the Act. Thus complete facilities exist under the authority of that Act for the protection of the citrus fruit industry of the State against the placing upon the market of citrus fruits, *Page 147 oranges, grapefruit and tangerines which are immature according to the standards prescribed by the Act and are in fact unfit for human consumption.
The reason for the enactment of Chapter 11844, Laws of 1927, and the amending Act, Chapter 14485, Laws of 1929, was the assumption that an arsenic fertilizer used upon the ground where the trees are grown or arsenic spray used upon the trees bearing the fruit creates an unwholesome fruit unfit to be used as a food and deleterious to the health of the consumer. Such is obviously the purpose because the use of the arsenic spray or fertilizer is the gravamen of the offense, the basis for confiscation regardless of the mature or immature condition of the fruit and of the wholesomeness or unwholesomeness of the fruit as an article of food. The fruit may be mature and even meet the acid test prescribed by Chapter 14662, supra, and be wholesome as a food, but if the analysis by the chemist shows the fruit to "contain arsenic or any compound or derivative of arsenic" the fruit "shall be destroyed by the Inspector making seizure of the same or by any citrus fruit inspector or by the Sheriff."
Section one of the Act attempts to make unlawful the use of a spray or fertilizer except where ordered by the Federal Government or the State Plant Board for the purpose of destroying the Mediterranean fruit fly, and Section two attempts to make unlawful the sale or offering for sale, the transportation or delivery for market, any citrus fruit which shall contain any arsenic or any compound or derivative of arsenic except where the fruit comes from within a quarantined area for one year previous to time of gathering fruit. Not only do the two sections in the use of the terms "citrus trees" and "citrus fruits" embrace the fruits described in Chapter 10103,supra, of which Chapter 11875, *Page 148 supra, is an amendment limiting the term "citrus fruit" to include only grapefruit and oranges, but they include all varieties of citrus trees and citrus fruits some of which, as the sour orange, are not used as food or included in the term marketable citrus fruits, though they may be transported, prepared for transportation or marketed. The two sections, therefore, are a mere dogmatic, arrogant, peremptory and unreasonable declaration against the use of arsenic or any of its derivatives in a spray or fertilizer to be used upon or about bearing citrus trees, or the sale or transportation of "any citrus fruit" which contains any arsenic or any compound or derivative of arsenic.
The validity of the two sections constitutes the basis for the other provisions of the Act which provide for the inspection of the fruit at any "packing house or other place where citrus fruit is being received or prepared for sale and transportation," and which vest in the Inspector the power to test the fruit under the provisions of Chapter 10103,supra, an Act which was superseded by Chapter 14662, supra, and is not in force, and determine whether it shows "an abnormal and excessively high ratio of total soluble solids of the juice thereof to the Anhydrous Citrus Acid thereof."
The Act also vests in such Inspector, a person not required by the Act to possess any qualifications specially capacitating him for the employment, the power to seize and take possession of the fruit pending the procuring of a chemical analysis of the juice from samples of the fruit to be taken by him either from the packing house bins or elsewhere in the packing house, or from field boxes or vehicles delivering the fruit to the packing house, if, in his opinion, the preliminary test made by him shows "an abnormal and *Page 149 excessively high ratio of total soluble solids of the juice thereof to the Anhydrous Citrus Acid thereof."
The Act also attempts to establish a rule of evidence which chemical analysis disproves, that is to say, it provides that an "abnormal and excessively high ratio of total soluble solids of the juice (thereof) to the Anhydrous Citrus Acid" indicates the presence of arsenic in the fruit juice. That rule is unfounded in fact or reason, because the juice of non-arsenated fruit contains a trace of arsenic and the juice of fruit from the trees which may have been sprayed with a reasonable quantity of arsenical sprays shows no appreciable trace of arsenic in excess of what is normally contained in unsprayed trees, and certainly no trace of arsenic whatsoever in excess of the normal content in the fruit from trees which have been fertilized with a fertilizer containing arsenic.
Sections 5, 8 and 9 of Chapter 11844, supra, were not amended by Chapter 14485, supra, Section 5 provides for the seizure of the fruit by the Inspector, the submission of the samples to a chemist to be designated by the Commissioner of Agriculture, and makes it the duty of such chemist so chosen to make a chemical analysis of the samples of juice submitted to him and make his report thereof to the Inspector, who is required to release the fruit "if (the) said analysis shall show that the said citrus fruit contains no arsenic." But the chemical analysis is bound to show even in non-arsenated fruit at least 0.00006 grains of arsenic per pound to 9.50% of soluble solids. The Pure Food and Drug Act of the Federal Government fixes the limit of arsenic tolerance in fruit deemed to be wholesome and fit for consumption as a food at 0.02, according to the allegations of the bill in this case admitted by the motion to dismiss. Section 8 of the Act attempts to render it unlawful *Page 150 for anyone to obstruct the Inspector in the performance of any duty required to be performed by him; and Section 9 prescribes penalties for the violation of any provision of the Act.
The Act is, in my view, an attempted exercise of the police power of the State in placing an unreasonable and arbitrary limitation upon the right of an individual to manage and operate his private business and an unusual and unnecessary restriction upon a lawful occupation. It vests in an employee of a State official the power to exercise vexatious and unlawful discriminations under the pretext of enforcing the law; makes the destruction of large quantities of property dependent upon an employee's reading of the report of a chemist of the State official's choosing; prescribes an impossible method of determining the actual presence of arsenic in the fruit seized; establishes an arbitrary, unscientific and wholly undependable rule of evidence as to the presence of arsenic in the fruit seized; leaves the determination of the existence of an "abnormal and excessively high ratio of total soluble solids 'of the fruit juice' to the Anhydrous Citric Acid thereof" to the opinion of a person of no special qualifications or abilities for deciding such a question; requires a test according to the provisions of an Act which has been superseded by a later one prescribing different standards, and attempts to make the criminality of the use of an arsenical spray or fertilizer depend upon the will or caprice of a State Plant Board, or some Board or Agency of the Federal Government.
The case of L. Maxcy, Inc., v. Mayo, 103 Fla. 552,139 South. Rep. 121, did not determine the constitutionality of the Act in its entirety, but upheld the validity of the provisions of Section One only so far as it applied to the spraying of citrus trees with a spray containing arsenic. *Page 151 As to the use of fertilizers the opinion vouchsafed some valuable advice to the Legislature for preventing the use of an arsenic element in fertilizer as applied to the soil. The reason for the suggestion seemed to be as expressed in the same paragraph, that if the statute be enforced to the extent it might be it would put a burden on a citrus grower to obtain a chemical analysis of all fertilizers proposed to be used by him on the soil around his citrus trees for fear that he might be sent to jail or have his fruit confiscated should he unwittingly use a fertilizer containing arsenic. So no decision was made as to that feature of the case.
It is most difficult to perceive how the limitation of a rightful exercise of the police power may be declared as applied to fertilizers containing arsenic, but not as to sprays containing the same element, when as the opinion states, the purpose of the entire Act is to avoid six harmful results to citrus fruits from the use of arsenic in fertilizers or sprays. The major premise of the argument in the opinion contains the fallacy that the use of sprays containing arsenic, or fertilizers containing that element, is generally practiced and is of a general and predominantly evil tendency, so that it is impossible to distinguish the evil from the innocent except as to degree. The Court cannot take judicial knowledge of such a fact, and the statement that it is a fact is wholly unsupported by experience, scientific research, and the evidence either in that case or the one at bar; while the Act itself contains the legislative declaration of the harmlessness of the practice, the lack of evil, and the fitness in fact of the citrus fruit for human consumption whenever in the opinion of a Federal agency or the State Plant Board the fruit trees may be sprayed with arsenic sprays, and the ground fertilized by arsenic fertilizers in the attack upon an insect pest. *Page 152
The first opinion in that case approved that provision in the statute, which in effect was that the fruit industry was not injured, nor the health of the people jeopardized, nor the fruit unfit for consumption as an article of food when the arsenic was used to combat the assumed ravages of an insect which disappeared as mysteriously as it appeared.
The principle underlying the lawful exercise of the police power is that inhibitions of innocent acts or conduct cannot be made merely because to do so will more conveniently circumvent evasions of regulations which are within the legislative power to make, and that the determination by the Legislature of what is a proper exercise of police power is not final or conclusive, but is subject to the supervision of the courts, because the Legislature may not under the guise of protecting the public interests arbitrarily interfere with private business or impose unusual or unnecessary restrictions upon lawful occupations. The police power rests upon necessity and the right of self-protection, and private property cannot be arbitrarily invaded under the guise of police regulation, nor forfeited for the alleged violation of law by its owner, nor destroyed by way of penalty inflicted upon him without opportunity to be heard.
The validity of a statute of the sort under consideration is always open to the court to consider among other things whether the Act bears any reasonable relation to the public purpose sought to be accomplished, and a forced or strained relation is not enough. Mr. Justice BROWN, of the Supreme Court of the United States, speaking for the Court, said: "To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon *Page 153 individuals." Lawton v. Steele, 152 U.S. 133, 38 L. Ed. 385,14 Sup. Ct. Rep. 499; Schlesinger v. Wisconsin, 270 U.S. 230,70 L. Ed. 557.
The case of Ex Parte Kilgore, 106 Fla. 723, 143 So.2d Rep. 610, merely decided that the spraying of citrus trees with arsenic prior to December 6, 1931, will not support criminal prosecution if done in a quarantine area.
The opinion in the case of Kilgore v. Mayo, 54 Fed. Rep. 2d 143, in quoting the opinion of the Supreme Court of the United States in Sligh v. Kirkwood, 237 U.S. 52, 35 Sup. Ct. Rep. 501, 59 L. Ed. 835, inadvertently perhaps supplied the disjunctive "or" for the conjunctive "and." The language of Mr. Justice DAY was as follows: "It will be observed that the oranges must not only be immature, but they must be in such condition as renders them unfit for consumption; that is, giving the words their ordinary signification, unfit to be used for food." That is very different from the statement that in that case the Court held that it was within the police power of the State to "prevent shipment of citrus fruit that is immature or unfit for consumption in order to protect a great industry."
I fully concur in the conclusions reached by Mr. Justice BUFORD and Mr. Justice BROWN in the opinions prepared by them, and adhere to the views expressed by me in my dissenting opinion in L. Maxcy, Inc., v. Mayo, supra.
The evidence submitted in this case by both complainants and defendants is overwhelmingly conclusive as to the unreasonable and unlawful execution of the threatened acts of the defendants. It completely justified the opinion and decision of the learned Chancellor in this case, which should be affirmed.
BROWN and BUFORD, J. J., concur.