Summary
In State ex rel. Corley v. Hines, 203 Miss. 60, 69, 33 So.2d 317, 318 (1948), the supreme court addressed an argument that termite-prevention contracts should require the complete "eradication" of termites.
Summary of this case from Kloss v. Bay Pest Control, Inc.Opinion
No. 36575.
January 12, 1948.
AGRICULTURE.
Order of State Plant Board requiring contract entered into by licensees engaged in profession of combating termites in wooden buildings with owners to provide for 100 per cent successful performance could not be sustained as reasonable, where proof overwhelmingly established impossibility in all cases to eradicate on first treatment, and that sometimes it required repeated treatments to do so (Laws 1938, chap. 171, sec. 1).
APPEAL from the Chancery Court of Hinds County.
Greek L. Rice, Attorney General, by John E. Stone and W.B. Fontaine, Assistant Attorneys General, for appellant.
The Legislature acting through the State Plant Board had authority to make reasonable rules and regulations governing pest control operators.
Abbott v. State, 106 Miss. 340, 351, 63 So. 667; Ex parte Fritz, 86 Miss. 210, 220, 38 So. 722; State v. J.J. Newman Lumber Co., 102 Miss. 802, 822, 59 So. 923; Clark v. State, 169 Miss. 369, 384, 152 So. 820; Moss v. Mississippi Livestock Sanitary Board, 154 Miss. 765, 779, 122 So. 776; Unemployment Compensation Commission of Mississippi v. Barlow, 191 Miss. 156, 169, 1 So.2d 241; Albritton v. City of Winona, 181 Miss. 75, 95, 101, 178 So. 799; Marcet v. Board of Plumbers Examination and Registration of Alabama (Ala.), 29 So.2d 333; Opp Cotton Mills v. Adm'r of Wage and Hour Div., 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 567; E. Fougors Co. v. City of New York, 224 N.Y. 269, 120 N.E. 642, 1 A.L.R. 1467; Pacific States Box Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853.
Rules and regulations of the State Plant Board requiring operators to eradicate termites from ordinary structures was a reasonable regulation.
State v. Porter (Conn.), 110 A. 59, 61; 16 C.J.S. 555, Sec. 187; 11 Am. Jur. 1027, Sec. 273; Webster's New International Dictionary (2 Ed.), Unabridged, "eradicate."
There is a presumption of reasonableness and validity to the rules and regulation promulgated by an administrative board.
McLeod et al. v. State, 154 Miss. 468, 474, 122 So. 737; Hartman v. May, 168 Miss. 477, 484, 151 So. 737; Pacific States Box Basket Co. v. White, supra; Mississippi Law Journal XVII, p. 132.
A regulation adopted after hearings thereon is given additional weight.
Pacific States Box Basket Co. v. White, supra.
Reasonableness of the rules and regulations might be deduced from the fact that the vast majority of the operators agreed to same.
Moss v. Mississippi Live Stock Sanitary Board, supra.
The criterion in reviewing an order of an administrative body is whether the order is arbitrary or capricious.
Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission et al., 190 Miss. 704, 713, 200 So. 579; Unemployment Compensation Commission of Mississippi v. Barlow, supra; California Company v. State Oil Gas Board et al., 200 Miss. 824, 27 So.2d 542, 545, 28 So.2d 120; Tri-State Transit Co. of Louisiana, Inc., v. Dixie Greyhound Lines, Inc., 197 Miss. 37, 47, 19 So.2d 441; Grenada Bank v. Petty, 174 Miss. 415, 425, 164 So. 316; Thompson v. Commonwealth Life Ins. Co., 198 Miss. 515, 23 So.2d 539, 540; Laws of 1938, Ch. 171; 30 Words Phrases (Perm. Ed.), p. 43.
The appellant in promulgating Rule 69, Section 11(b), for the protection of the citizens of this state acted within authority granted it by the Legislature.
Mississippi State Tax Commission v. Flora Drug Co., 167 Miss. 1, 23, 148 So. 373; Hartman v. May, supra; Bowen v. Hannah et al., 71 S.W.2d 672, 674, 675; State v. Porter, supra; Code of 1942, Sec. 5006; Black's Law Dictionary, "practice"; Webster's International Dictionary (2 Ed.), Unabridged, "practicing" and "prevent"; 42 Am. Jur. 316, Sec. 26.
The requirement that termites be eradicated from buildings of ordinary construction is not arbitrary and capricious ruling.
Martin v. Board of Sup'rs of Winston County, 181 Miss. 363, 178 So. 315; Mississippi State Tax Commission v. Flora Drug Co., supra; Anders v. Evans Co. (La.), 187 So. 109, 112; Perkinson v. Home Professional Services, 24 So.2d 256; Weyerhausser Timber Co. v. Gallo, 168 Or. 85, 121 P.2d 469, 477; Lambrose v. Young, 145 F.2d 341, 343; Van Antwerp v. Board of Com'rs of City of Mobile, 217 Ala. 201, 115 So. 239; Sacharoff v. Murphy, 44 N.Y.S.2d 117, 122, 182 Misc. 235; Day v. State, 118 Tex.Crim. 244, 42 S.W.2d 1013, 1015; 3 Words Phrases (Perm. Ed.), p. 874, "arbitrary," p. 875, "arbitrary action," p. 193 of Pocket Part, "arbitrary and capricious action."
The regulation of the appellant board requiring contracts for the eradication of termites from buildings of ordinary construction for the benefit of citizens of this state does not deprive appellees of the constitutional liberty to contract.
State ex rel. Collins v. Senatobia Blank Book Stationery Co., 115 Miss. 254, 76 So. 258; Dixon-Paul Printing Co. v. Board of Public Contracts, 117 Miss. 83, 77 So. 908; United States Fidelity Guaranty Co. v. Parsons, 147 Miss. 335, 362, 112 So. 469; Miller v. Wilson, 236 U.S. 373, 59 L.Ed. 628; Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; Morris v. Holshouser (N.C.), 17 S.E.2d 115, 137 A.L.R. 733, 736; Workmen's Compensation Board of Kentucky v. Abbott et al., 212 Ky. 128, 278 S.W. 533, 47 A.L.R. 789, 794; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330, 1333; Jay Burns Baking Co. v. Bryan, 286 U.S. 504, 68 L.Ed. 813; Peterson Baking Co. v. Bryan, 209 U.S. 570, 54 S.Ct. 277, 78 L.Ed. 505, 90 A.L.R. 285, 1288; 16 C.J.S. 1167; 12 Am. Jur. 368.
The question of whether or not a rule or regulation of an administrative board is arbitrary and capricious is a question of law and not of fact, so that the decision of the chancellor below is not given the same weight in this Court as it would be on his decision involving a question of fact.
Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, supra; McLeod et al. v. State, supra; La Prada v. Department of Water and Power of City of Los Angeles, 147 P.2d 420, 421; Kendall v. Bielding, 295 Ky. 782, 175 S.W.2d 489, 491; 42 Am. Jur. 641, Sec. 216.
Green Green and Reynolds S. Cheney, all of Jackson, for appellee, Grady Hines.
The Supreme Court will not disturb a decision by the Chancellor on the facts unless manifestly wrong.
Keaton et al. v. Miller, 38 Miss. 630, 639; Clark et al. v. Dorsett, 157 Miss. 365, 128 So. 79, 81; Interstate Cattle Co. v. Lapsley (Miss.), 24 So. 532; Gulf Transport Co. v. Fireman's Fund Ins. Co., 121 Miss. 655, 83 So. 730; Bacot v. Holloway, 140 Miss. 120, 104 So. 696; Barry v. Mattocks, 156 Miss. 424, 125 So. 554; Cole v. Standard Life Ins. Co., 170 Miss. 330, 154 So. 353, 355; Malvezzi v. Gully, 189 Miss. 20, 193 So. 42, 44; Stroud v. Loper, 190 Miss. 168, 198 So. 46, 47.
The Legislature having enacted a statute giving certain powers to an administrative board, in this case, the State Plant Board, the rules and regulations adopted thereunder must (1) be a legal and valid construction thereof; (2) be a reasonable construction thereof; and (3) be a construction such as not to restrict the power to contract guaranteed by the State and Federal Constitutions.
California Co. v. State Oil Gas Board, 200 Miss. 824, 27 So.2d 542; Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723; Hartford Accident Indemnity Co. v. Natchez Inv. Co., 155 Miss. 31, 119 So. 366; Hobbs et al. v. Germany, 94 Miss. 469, 49 So. 515; McLeod et al. v. State, 154 Miss. 468, 122 So. 737; State ex rel. Collins v. Grenada Cotton Compress Co., 123 Miss. 191, 85 So. 137; Town of McCool v. Blaine, 194 Miss. 221, 11 So.2d 801; Adams v. Tanner, 244 U.S. 590, 61 L.Ed. 336; Miller v. Wilson, 236 U.S. 373, 59 L.Ed. 628; Burns Baking Co. v. Bryan, 264 U.S. 503, 68 L.Ed. 813; Code of 1942, Secs. 4979, 5006-5011; Laws of 1918, Ch. 219; Laws of 1920, Ch. 252; Laws of 1938, Ch. 171; 42 Am. Jur. 353, Sec. 49, p. 403, Sec. 81, p. 427, Sec. 100, p. 432, Sec. 101.
Wells, Wells, Newman Thomas, of Jackson, and L.A. Smith, Jr., of Holly Springs, for appellee, Richard Stanton.
The action of the appellant in promulgating rule 69, Section 11 (b), is beyond and in excess of the authority granted to it by the Legislature of the State of Mississippi.
Code of 1942, Secs. 5006-5009; 42 Am. Jur. 316, Sec. 26, p. 358, Sec. 53.
The Legislature did not vest discretionary powers in the appellant for the granting of licenses but specifically set forth the requirements under which licenses would be granted and placed in the appellant the ministerial duty of carrying out the statute.
Code of 1942, Sec. 5009; 42 Am. Jur. 361, Sec. 55; 37 C.J. 238, Sec. 92.
Under Section 5007, Code of 1942, appellant was given authority to regulate the qualifications and practicing of persons engaged in control or eradication of any insect, pest or rodent, but could not require those persons engaged in control to assume the additional duty of eradication.
Adams County v. Catholic Diocese of Natchez, 110 Miss. 890, 71 So. 17; Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407; Conrad Furniture Co. v. Mississippi State Tax Commission, 160 Miss. 185, 133 So. 652; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; State ex rel. Forman v. Wheatley, 113 Miss. 555, 74 So. 427; Trahan v. State Highway Commission, 169 Miss. 732, 151 So. 178; Beaty v. Richardson, 56 S.C. 173, 34 S.E. 73, 46 L.R.A. 517; Robinson v. S.P. Co., 105 Cal. 526, 38 P. 94, 28 L.R.A. 773; 50 Am. Jur. 267, Sec. 282; 59 C.J. 986, Sec. 584.
Assuming for the sake of argument that the appellant has authority to make additional requirements to those set forth in the statute prior to licensing the appellee, the requirement that appellee guarantee to eradicate termites is arbitrary and capricious and impossible of fulfillment.
California Co. v. State Oil Gas Board, 200 Miss. 824, 27 So.2d 542; Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission et al., 190 Miss. 704, 200 So. 579; Tri-State Transit Co. of Louisiana, Inc., v. Dixie Greyhound Lines, Inc., 197 Miss. 37, 19 So.2d 441; 42 Am. Jur. 429, Sec. 100.
If Section 11, Rule 69, promulgated by the State Plant Board is not in excess of the authority granted the said board by Chapter 171 of the Laws of 1938, the said act and the said rule are unconstitutional as depriving the appellee of the right to contract, a liberty granted by Section 14 of the Mississippi Constitution and the Fourteenth Amendment of the United States Constitution.
Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 880; Saucier v. Life Casualty Ins. Co. of Tennessee, 189 Miss. 693, 198 So. 625; Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 A.L.R. 238; Allgeyer v. Louisiana, 165 U.S. 578, 41 L.Ed. 832; Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 68 L.Ed. 813; New State Ice Co. v. Liebmann, 285 U.S. 262, 76 L.Ed. 747; Weaver v. Palmer Bros. Co., 270 U.S. 402, 70 L.Ed. 654; 12 Am. Jur. 368, Sec. 690; 16 C.J.S. 1167, Sec. 575.
The decision of the chancellor will not be disturbed by the Supreme Court on appeal unless manifestly contrary to the great weight of the evidence and manifestly wrong.
Barry v. Mattocks, 156 Miss. 424, 125 So. 554; Bounds et al. v. Brown, 201 Miss. 564, 29 So.2d 657; Boutwell v. Board of Sup'rs of Jasper County, 128 Miss. 337, 91 So. 12; City of Louisville v. Chambers, 190 Miss. 833, 1 So.2d 771; Colotta et ux v. Middleton et al., 201 Miss. 637, 28 So.2d 847; Early v. U.S.F. G. Co., 181 Miss. 162, 176 So. 720; Glover v. Falls, 120 Miss. 201, 82 So. 4; Gulf Transport Co. v. Fireman's Fund Ins. Co., 121 Miss. 655, 83 So. 730; Hays v. Lyon, 192 Miss. 858, 7 So.2d 523; Jefferson et al. v. Walker et al., 199 Miss. 705, 24 So.2d 343; Jones et al. v. Crawford et al., 201 Miss. 791, 30 So.2d 57, 513; Langston v. Farmer, 176 Miss. 820, 170 So. 233; Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Nash v. Stanley, 168 Miss. 691, 152 So. 294; Quine v. Wolcott, 165 Miss. 325, 143 So. 424; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; Scott v. Perry, 140 Miss. 452, 106 So. 12; Smith et al. v. Fanning (Miss.), 25 So.2d 481; Sykes v. Sykes, 162 Miss. 487, 139 So. 853; Whitney National Bank v. Sterling, 177 Miss. 325, 170 So. 692; Interstate Cattle Co. v. Lapsley (Miss.), 24 So. 532.
See also Clark v. State, 169 Miss. 369, 152 So. 820.
Argued orally by John E. Stone, for appellants, and by Reynolds Chaney and Calvin Wells, III, for appellees.
Appellees, complainants in the trial court, are engaged in the profession of combating the ravages of termites in wooden buildings, or in the wooden portions of buildings. Termites live in subterranean colonies sometimes as much as 25 to 30 feet underground, and their food is obtained from the glucose found in wood, in search of which the insects in large numbers attack the wood in buildings. The only practical method of control is to insulate them from the wooden portions of a structure so that they cannot reach any such portions. They can penetrate a crack in a brick or concrete foundation if of so much as one-thirty-second of an inch, and such cracks when made by viabrations or settling of the supporting ground are soon discovered by them, and any piece of wood leaned against the building will furnish them a passage to it.
The approved method of insulation is to use a poisonous chemical solution with which all the approaches to the woodwork are so thoroughly impregnated that the insects cannot pass it from the ground; and also that the insects already in the building cannot pass back to the ground which to survive they must do in order to obtain moisture.
Appellees are licensees of the E.L. Bruce Company among the pioneers in this work, which owns and controls a patented process called Terminix. The licensees of this company operate in thirty-five states, all under the same method of treatment and all licensees make contracts with the owners which are in the following form: "The undersigned Terminix Licensee hereby contracts to insulate the building (or buildings) listed below against the attack of subterranean termites, by applying Terminix in accordance with the requirements of the treating technique developed by E.L. Bruce Co. for the sum of ____ Dollars. The undersigned warrants that any additional application of Terminix to insulate against the attack of subterranean termites, found necessary upon reinspection, shall be preformed at no additional cost. This warranty is effective for one year from the date of the original insulation."
The E.L. Bruce Company guarantees the fulfillment of the contract, and the guaranty is insured by an accredited insurance company.
The Plant Board demands that the Terminix contracts be modified so as to read as follows: "In accordance with the regulations and requirements of the Mississippi State Plant Board Rule 69 (as amended May 10, 1946) the Terminix Company contracts to eradicate termites from the foundations and superstructure of the aforesaid buildings."
It will be noted that such a stipulation has no provision whether the eradication must be accomplished in and by the first or original treatment, or whether it will allow subsequent treatments or how many or through what length of time. If we say however, that such a contract means that the contractor shall have a reasonable length of time from the original treatment to make further inspections and to apply additional treatments, it makes no provisions for the consequences of changes that take place through no fault of the contractor, such as the settling and cracking of the foundations, for the cases where the subsequent acts or neglects of the owner himself have allowed opportunities for reinfestation or for the continuance of such reinfestation, or for other contingencies within like reason, but binds the contractor to absolute eradication, although the testimony when taken from all its sides demonstrates, as we think and as the chancellor by his decree must have found, that it is not within reason in the administration and supervision of this professional service to demand or expect one hundred percent eradication throughout in every such undertaking, even when there are no visible exceptional conditions.
The Plant Board says in its brief that the purpose of the proposed contract is that contracting owners may be assured that termites will be "definitely removed from their premises; that with the insertion of the word `eradicate' into the contracts of termite operators in place of the word `insulate' there can be no room for misunderstanding as to the service which these operators are to perform"; and the Board gives a definition of what it means by the contract word "eradicate" — "to pluck up by the roots, to root up or out, to extirpate, to abolish, destroy, annihilate". And the Board says that the further purpose of the proposed contract requirement was to make it proof sufficient when, on any subsequent inspection, termites were still in the building, that the operator had failed adequately to perform his contract. And yet, as we have already said, the proof is overwhelming, if not undisputed, that it is a practical impossibility in all cases to eradicate termites on the first treatment, and that sometimes it requires repeated treatments to do so.
The Plant Board seeks in the respect last mentioned to avoid the apparent arbitrariness in the proposed contract, first, by allowing the contractor to insert therein a stipulation against "peculiar or unusual conditions in any building which make eradication doubtful", if fully described in the contract, and, second by the testimony on the part of the Board that in the administration of the requirement imposed upon termite operators, the Board allows a variance or tolerance from the absolute terms of the proposed contract of twenty-five percent, — that is to say, that if and when it is found by the Board on its inspections that a contractor in seventy-five percent of his jobs has attained a complete eradication, he will be deemed fit to continue in his licensed work.
The proof is undisputed that it is not always possible to ascertain the conditions before the work is actually entered upon, and before the contract is made whether unusual or peculiar conditions will be encountered, and certainly conditions which subsequently arise, and which have heretofore been mentioned, cannot be fully described in the contract, and, in the second place, by allowance or tolerance of twenty-five percent in its inspections, the Board confesses that to require more would not be reasonable as a general proposition of over-all administration, but yet proposes to specifically require in its application to specific cases that one hundred percent results shall be attained — that the contractor shall place in the hands of the owner a contract by which, when the owner goes to a court of law, the agreement would mean one thing but that when the conduct of the contractor in respect to it is reviewed by the Plant Board it will mean something else — one hundred percent to the owner, and seventy five percent to the Plant Board.
If the Plant Board in its inspections and administration should require one hundred percent in successful performance under the practices of this profession on pain of the cancellation of the operator's license, none could defend it as being within reason, whence it follows that neither can its action in demanding a hundred-percent contract be sustained as reasonable. An honest, skillful and diligent effort may, and ought to, be required in such matters, of course, but an absolute undertaking in any professional service such as this would seem to be beyond the bounds of reason.
It will be observed that Section 1, Chap. 171, Laws 1938, provides that the "plant board shall have the power to make rules and regulations to govern the qualifications and the practicing of persons engaged in the professional services herein defined and to prevent fraudulent practices in the said professional services", including professional services in "entomological work . . . for the control or eradication of any insect pest or rodent". Whether this section is sufficient in its contents to comply with the rule that the legislature cannot delegate its authority and therefore must lay down the standards and prescribe the principles according to and within which the administrative agency or board must proceed as to details, is not debated in the briefs, is not necessary to a decision in the present case, and is here mentioned that it may not be understood inferentially that we have held the provisions sufficient in the respect mentioned. We do not address ourselves to that question at all, so far as decision is concerned.
Affirmed.