Opinion
No. 19.
November 6, 1957. Rehearing Denied November 26, 1957.
Appeal from the Circuit Court of Pasco County, Orvil L. Dayton, Jr., J.
E.B. Larkin, of Larkin Larkin, Dade City, for appellants.
William C. Pierce, Tampa, for appellee Nathan Mayo.
Julian K. Dominick, of Fishback, Williams, Davis Dominick, Orlando, for appellees E.B. Conoley, trustee, and others.
The Circuit Court of Pasco County quashed a writ of certiorari which had been issued to review an order entered by the Commissioner of Agriculture against a citrus fruit dealer.
Section 601.67, Florida Statutes, F.S.A., authorized the Commissioner of Agriculture, after notice and hearing, to revoke or suspend the license of any citrus fruit dealer if he determines that such dealer has violated any of the provisions of the Florida Citrus Code.
Section 601.64, Florida Statutes, F.S.A., makes it unlawful in connection with any transaction relative to the purchase, handling, sale and accounting of sales of citrus fruit:
"(4) For any citrus fruit dealer to make, for a fraudulent purpose, any false or misleading statement concerning the condition, quality, quantity, or disposition of, or the condition of the market for, any citrus fruit which is received by such citrus fruit dealer or bought or sold or contracted to be bought or sold by such citrus fruit dealer; or the purchase or sale of which is negotiated by such citrus fruit dealer; or to fail or refuse truly and correctly to account and make full payment promptly in respect of any such transaction in any such citrus fruit to the person with whom such transaction is had, or to fail or refuse on such account to make full payment of such amounts as may be due thereon, or to fail without reasonable cause to perform any specification or duty express or implied arising out of any undertaking in connection with any such transaction;"
Section 601.66, Florida Statutes, F.S.A., provides that:
"Any person complaining of any violation of any of the provisions of this chapter by any citrus fruit dealer during any shipping season may at any time prior to the expiration of ninety days immediately following the end of such shipping season apply to the commissioner by complaint, which shall briefly state the facts; whereupon, if in the opinion of the commissioner the facts therein contained warrant such action, a copy of the complaint thus made shall be forwarded by the commissioner to the citrus fruit dealer, who shall be called upon to satisfy the complaint or to answer it in writing within a reasonable time to be prescribed by the commissioner. After an opportunity for hearing on a complaint, the commissioner shall determine whether or not the citrus fruit dealer has violated any of the provisions of this chapter. If, after hearing on a complaint made by any person under this section, the commissioner determines that the citrus fruit dealer has violated any provisions of this chapter, he shall, unless the offender has already made reparation to the person complaining, determine the amount of damage, if any, to which such person is entitled as a result of such violation and shall make an order directing the offender to pay to such person complaining such amount on or before the date fixed in the order. If any citrus fruit dealer does not comply with an order for the payment of money within the time limited in such order, the complainant, or any person for whose benefit such order was made, may within ninety days from the date of the order, file in any court of competent jurisdiction complaint, setting forth briefly the causes for which he claims damages and the order of the commissioner in the premises. Such suit in such court shall proceed in all respects like other civil suits for damages except that the successful party in the proceedings before the commissioner of agriculture shall not be liable for costs in such court nor for costs in any subsequent stage of the proceedings, unless they accrue upon his appeal. In any suit between the same parties involving the same facts as were involved in a proceeding under this chapter, the findings and order of the commissioner hereunder shall be prima facie evidence of the facts herein stated, and in any such suit if the party who was successful before the commissioner of agriculture finally prevails, he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of the costs of the suit."
Section 601.68, Florida Statutes, F.S.A., provides:
"The commissioner may instigate and make investigation of any citrus fruit dealer whom he has reason to believe has violated any law of Florida governing and applicable to citrus fruit dealers and, whenever the commissioner determines after notice to the citrus fruit dealer and hearing that any citrus fruit dealer has violated any law of the state governing and applicable to citrus fruit dealers, he may publish the facts and circumstances of such violation and, by order, suspend the license of such offender for a specific period or revoke the same or make such other appropriate order as he may deem just and proper, and any such order shall specify the effective date thereof and any order other than one suspending or revoking a license shall automatically suspend such license until said order is complied with. Any action of the commissioner with reference to the revocation or suspension of any license granted under the provisions of this law may be reviewed by any court of competent jurisdiction; * * *"
The appellee, E.B. Conoley, trustee, filed the following complaint with the Commissioner of Agriculture:
"Fishback, Williams, Davis Dominick "Attorneys and Counsellors at Law "170 East Washington Street "Orlando, Florida.
"January 27, 1956
"Honorable Nathan Mayo "Commissioner of Agriculture "Citrus Vegetable Inspection Division "Winter Haven, Florida
"Re: E.B. Conoley, as Trustee for Barbara Jean Pell, Mildred Joyce Pell, Robert William Pell, Shirley Ann Pell, Eloise Fishback, Mary Jo Fishback, H.D. Fishback and Annie Jean Fishback; and S.E. Conoley, as Trustee for Connie Conoley,
Complainants, vs.
Townsend Fruit Company, Inc., and Driskell Townsend
"Dear Mr. Mayo:
"Mr. E.B. Conoley, as agent for the complainants, on January 3 entered into contract with Townsend Fruit Company, Inc. to sell 4,000 boxes fruit at $1.60 per box on the tree. A copy of this contract is attached hereto and made a part hereof.
"Townsend Fruit Company picked 4,118 boxes of fruit between January 6, 1956 and January 16, 1956, and thereby became indebted to the complainants in the sum of $6,588.80, of which $500 was paid to the complainants when the contract was made. No further monies have been received by complainants. We will be glad to furnish you further information that you may request, but we wanted to make this complaint to your office so that you might take appropriate action. Yesterday we filed a complaint in the Orange County Circuit Court on this transaction and have voluntarily dismissed the same today so that you might have jurisdiction of the complaint.
"Very truly yours,
"Sgd/ Julian K. Dominick "Julian K. Dominick
"JKD/aj "Enclosures "cc: Mr. E.B. Conoley "Orlando Garden Road "Orlando, Florida."
(Attached contract)
"Townsend Fruit Company, Inc. "P.O. Box 708 Dade City, Florida Phone 26 Blue
"Agreement between E.B. Conley (sic), Agent, Address — Orlando, Florida, (hereafter called "Grower") and Townsend Fruit Co., Dade City, Florida, (hereinafter called "Buyer".),
"Witnesseth That, subject to the terms and conditions hereinafter set forth, the Grower hereby sells and delivers and the Buyer purchases from the Grower all oranges now growing or to be grown during the 1955-1956 citrus fruit season on the grove located and identified (sic) as follows:
From City of Name of Grove Miles County: Section Township 13 acre block Ferndale, Fla. Lake
Estimated Range Quantity 4000 Boxes
"The Purchase price shall be $1.60 per box on tree.
"Grower acknowledges receipt of $500.00 as part payment of said purchase price; the balance shall be paid when fruit is gathered.
"Grower shall allow Buyer until Jan. 10, 1956 to remove fruit, or a reasonable time after fruit reaches maturity suitable for concentrating. Fruit sold herewith shall at time of delivery be merchantable, free of frost and dryness and of the maturity required for frozen concentrate. If due to any cause, Buyer does not receive sufficient boxes of fruit to liquidate said cash payment, the Grower shall repay the Buyer the deficiency, upon demand.
"Buyer, its agents and employees shall have the right of ingress and egress to said groves properties at all times for the purpose of inspecting and/or the removal of said fruit.
"In the event strikes, lockouts, embargoes, quarantines, acts of God or any other conditions beyond the control of the Buyer and prevent the Buyer from picking the fruit, the Buyer shall have the additional time required therefor.
"Grower warrants that he will not cause said groves to be fertilized or sprayed so as to injury the quality of said fruit or cause it to drop. He shall properly cultivate, fertilize, spray and dust said groves and fruit in a first class and husbandlike manner. He further warrants that said fruit has not been sold and that he has the sole right to said fruit and that there are no existing liens or contracts which will in any way affect the Buyer's rights hereunder.
"In Witness Whereof the parties hereto have hereunto executed this agreement in person or by their duly authorized agent this 3 day of January, 1956.
"/S/ E.B. Conoley "Grower
"/S/ Driskell Townsend "Its Authorized Agent Buyer"
On receipt of the complaint, the Commissioner issued the following notice:
"To: Townsend Fruit Company, Inc. "P.O. Box 708 "Dade City, Florida
"A complaint against you as a Citrus Fruit Dealer has been filed with the Commissioner of Agriculture, under the provisions of the Florida Citrus Code of 1949, by Julian K. Dominick, Attorney for E.B. Conoley, Agent. "This Complaint sets forth that: You have failed and refused truly and correctly to account and make full payment promptly for citrus fruit purchased from the petitioner during the 1955-1956 season.
"Pursuant to Chapter 601.66, Florida Statutes [F.S.A.], a copy of this complaint is hereby referred to you and you are called upon to satisfy the complaint or to answer the same in writing to the Commissioner of Agriculture not later than Feb. 4, 1956.
"Your prompt attention will be appreciated.
"Yours very truly,
"Sgd/ Nathan Mayo "Commissioner of Agriculture
"By Sgd/ J.F. Mays "Duly Designated Officer
"Enclosure "CC to: American Fire and Casualty Company "c/o Jas. F. Croley, Agent "Dade City, Florida
"Florida Citrus Commission
"Julian K. Dominick, Attorney."
The following answer was filed by the appellants:
"Honorable Nathan Mayo "Commissioner of Agriculture "Citrus Vegetable Inspection Division "P.O. Box 1072 "Winter Haven, Florida
"Re: E.B. Conley (sic), as Trustee for Barbara Jean Pell, Mildred Joyce Pell, Robert William Pell, Shirley Ann Pell, Eloise Fishback, Mary Jo Fishback, H.D. Fishback and Annie Jean Fishback; and S.F. Conoley, as Trustee for Connie Conoley,
Complainants, vs.
Townsend Fruit Company, Inc. and Driskell Townsend
"Dear Mr. Mayo:
"Please consider this the Answer of Townsend Fruit Company, Inc., and Driskell Townsend to the above styled Complaint a copy of which was furnished on January 28, 1956.
"Townsend Fruit Company, Inc., and Driskell Townsend deny that any contract was entered into between the Townsend Fruit Company, Inc., and E.B. Conoley, as agent or otherwise on January 3, or on any other date for the purchase of any fruit at any price. To explain further this statement, Driskell Townsend avers that on or about the above mentioned date, one Ed. Hudson, a fruit broker, offered the Townsend Fruit Company a contract with said E.B. Conoley at the above price of $1.60 per box and was advised that the Townsend Fruit Company would purchase said fruit at this price provided the contract contained a February 15th, 1956, picking date. That said Ed Hudson advised that he would ascertain if such a picking date could be included and would later advise Driskell Townsend. That several days later Ed Hudson advised that he could not arrange a February 15th picking date and that the fruit was sold to one D.R. Hughes, 111 East Magnolia, Lakeland, Florida, by a Mr. Frazer Hull, a fruit broker.
"Answering the second paragraph of this Complaint, Townsend Fruit Company and Driskell Townsend, deny that they or he picked 4,118 boxes of fruit between January 6, 1956 and January 16, 1956, or that they or he picked any fruit whatsoever at any time or that any equipment belonging to Townsend Fruit Company or Driskell Townsend has been in or near the grove of complainant's during the year 1956. Townsend Fruit Company and Driskell Townsend further deny that they or he is indebted to Complaints (sic) in the sum of $6,588.80 and further deny that the sum of $500.00 was ever paid by either Townsend Fruit Company or Driskell Townsend or by anyone on the behalf of either of them.
"Driskell Townsend, from an investigation made after receipt of a copy of this Complaint, says that he has learned that the alleged fruit was picked and hauled by said D.R. Hughes and was delivered to the Adams Packing Company. That all equipment and picking tickets and receipts used in said grove were that of said D.R. Hughes with whom Townsend Fruit Company, Inc., or Driskell Townsend has no connection.
"Further answering this Complaint in its entirety, the Townsend Fruit Company, Inc., and Driskell Townsend says that in the event the fruit has not been paid for, that the Complaint should be directed to said D.R. Hughes, Ed. Hudson and Frazer Hull. That same should be dismissed against the Townsend Fruit Company, Inc., and Driskell Townsend but that in the event that it is not so dismissed, that a hearing as to the truth of the allegations in the Complaint and this Answer be held for the purpose of ascertaining such facts.
"Yours very truly, "Larkin Larkin "By Sgd/ E.B. Larkin
"cc: Mr. Julian K. Dominick Attorneys for "Florida Citrus Commission Townsend "American Fire Casualty Co. Fruit Company and Driskell Townsend"
The Commissioner, at the conclusion of the hearing, entered the following order:
"Before the Commissioner of Agriculture of the State of Florida
In Re:
Complaint of E.B. Conoley, as Trustee, Petitioner, vs. Townsend Fruit Company, Inc., and Driskell Townsend, Respondents.
"In the above matter petitioner, E.B. Conoley, as Trustee, on January 27, 1956, pursuant to Section 66 of the Florida Citrus Code [F.S.A. § 601.66], made complaint against Townsend Fruit Company, Inc., and Driskell Townsend, alleging that respondents were indebted to petitioner in the sum of $6,088.80, with respect to a transaction involving the sale of citrus fruit by petitioner to respondents. Townsend Fruit Company, Inc., is a citrus fruit dealer under the code. Respondents denied the claim, whereupon hearing was duly held pursuant to the Code, at which hearing sworn testimony was adduced by and on behalf of the parties. Such testimony has been transcribed and, together with all other files in the matter, transmitted to the undersigned Commissioner for consideration and entry of appropriate order. The Commissioner has carefully examined and considered the entire record.
"Petitioner and Townsend Fruit Company, Inc., entered into a written contract on January 3, 1956, whereby petitioner sold to the company his oranges located on his 13 acre block at or near Ferndale, Florida, estimated at 4000 boxes, at the purchase price of $1.60 per box on the tree. $500.00 was paid to petitioner as deposit at the time the contract was executed. The contract was negotiated with petitioner by one Ed Hudson, acting as agent for Townsend Fruit Company, Inc.
"Picking of the fruit started three days after the contract was signed and in all 4,118 boxes were picked.
"It appears from the rather meager record of testimony adduced in the matter, that one D.R. Hughes, got the fruit from petitioner's grove, but it is equally true that the fruit undoubtedly was picked pursuant to, and by virtue of, the contract aforesaid. And it is also true that petitioner has not been paid for his fruit except the original deposit of $500.00.
"Just what the hook-up between Townsend Fruit Company, Inc., and D.R. Hughes was, is not very clear from the record, but the undersigned Commissioner is satisfied from what does appear in the record that the fruit in question was picked because of the contract of sale signed by petitioner and Townsend Fruit Company, Inc.
"It follows that petitioner's claim in the sum of $6,088.80 must be upheld.
"Order
"In accordance with the foregoing findings, which are herewith adopted as findings of fact by the undersigned Commissioner, it is hereupon
"Ordered that respondent Townsend Fruit Company, Inc., do pay to petitioner, E.B. Conoley, as Trustee, the sum of $6,088.80, to be paid on or before fifteen days from the date of this Order, and that in default thereof the citrus fruit dealer's license of respondent shall stand suspended.
"It is further Ordered that copies of this Order shall be served upon all interested parties to this proceeding, including the Surety Company on respondents' citrus dealer's bond.
"Done at Tallahassee, Florida, on this 28 day of May, A.D. 1956.
"Sgd/ Nathan Mayo "As Commissioner of Agriculture of the State of Florida."
The Florida Supreme Court in the case of Gregg Maxcy, Inc. v. Bateman, 1937, 126 Fla. 747, 171 So. 811, held that:
"Under contract of sale of citrus fruit stipulating that seller `has this day sold' marketable fruit in grove described, `said fruit to be purchased at 75 cents per standard field box, on trees, title to marketable fruit passed to buyer though he did not take possession, and buyer was liable for unpicked marketable fruit."
The Court, in its opinion in the above case, said:
"In this case plaintiff in error bought a crop of citrus fruit from defendants in error. The contract was in the following language:
"`This Contract, Made and entered into this 22nd day of August, 1932, between Sophronia C. Bateman and W.W. Bateman her husband of the City of Wauchula, County of Hardee, State of Florida, parties of the first part and Gregg Maxcy, Inc., of City of Sebring, County of Highlands, State of Florida, party of the second part.
"`Witnesseth, that the party of the first part has this day sold to the party of the second part all marketable oranges and tangerines on the trees in the groves known as the Bateman Grove described as follows:
"`SW 1/4 of the SE 1/4 and the SE 1/4 of the SW 1/4 in Section 25, Township 34, Range 24, Hardee County, State of Florida.
"`Said fruit for the seasons of 1932-1933 and 1933-34 to be purchased by Gregg Maxcy, Inc., at seventy-five cents (75¢) per standard field box, on trees. In consideration of $300.00 amount acknowledged by party of the first part balance to be paid when and as fruit is picked, it is further agreed that all monies over seventy five cents (75¢) per box net, above all expense handling and brokerage is to be credited to former account of W.W. Bateman. It is agreed by party of the first part that $300.00 is acknowledged on above fruit, as first payment. Witness the hands and seals of the Growers and the corporate name and seal of the Broker the day and date aforesaid.'
"The purchaser failed to gather a part of the citrus fruit purchased, and, as is alleged in the declaration, the purchaser, instead of using `standard field boxes' for the gathering of the fruit, used what are called `Jumbo boxes,' which it is alleged held 10 per cent. more fruit than the `standard field box,' and the sellers alleged that by reason of using the box known as the Jumbo box instead of the standard field box, the purchaser took 240 standard field boxes more fruit than was accounted for and owed the seller $180 for that fruit as well as for 800 boxes of fruit which the seller alleged were left on the trees unpicked and unpaid for.
"The contract in this case, except for the fact that there is not in this contract a specific time limit in which the fruit was to be gathered and packed, is not materially different from the contract which we had under consideration in the case of Metcalf v. R.D. Keene Co., 122 Fla. 27, 164 So. 704, 707. That contract was held to be an indivisible one and was held to bind the purchaser to take the entire crop of fruit at the price named in the contract. In that case Mr. Presiding Justice Ellis, concurring, said:
"`The title to the fruit was in the purchaser from the date of the contract. It was his duty to remove it when it became merchantable. As it became merchantable, the seller was entitled to receive a certain price per box for it. The contract did not secure to the purchaser the right to allow any fruit to become overripe and spoil so as not to be merchantable merely because the contract placed a limit of time upon him within which he should remove it. The reason for the limitation of time is apparent. It secured payment to the seller for all merchantable fruit within a definite time limit, and the prevention of possible infection of his grove by overripe, decaying, and falling fruit.'
"The real contention here is that the title to the citrus fruit which was the subject-matter of the contract did not pass from the seller to the purchaser before the purchaser took possession of the fruit.
"Under authority of the opinion and judgment in the case of Metcalf v. Keene Co., supra, the circuit judge was correct in holding that the title did pass and in effect that the purchaser was bound to take and pay for the fruit and that the seller was entitled to enforce payment from the purchaser of that fruit contemplated in the contract which was not picked and paid for within a reasonable time and when under prevailing practice in regard to such matters the fruit should have been picked, packed, and shipped."
We are of the opinion that the findings of the Commissioner that the parties had entered into a binding written contract is amply supported by the record and that, under the above authority, the Commissioner correctly ruled that the fruit crop was purchased by Townsend Fruit Co., Inc.
The appellants contend that under the decisions of the Florida Supreme Court in Mayo v. Market Fruit Co. of Sanford, Inc., Fla. 1949, 40 So.2d 555, 557, and Mayo v. Lent, Fla. 1950, 45 So.2d 879, the Commissioner did not have authority under the law to determine the validity of the contract and the amount of money due thereunder.
The Supreme Court in Mayo v. Market Fruit Co. of Sanford, Inc., supra, held that the term "account" in the Citrus Code means to pay as well as to furnish a statement showing what is due the grower by the dealer. The Court further held that the Commissioner of Agriculture had improperly ascertained the damages due the grower; and that the statute, making it unlawful for a citrus fruit dealer to fail to account promptly and giving the Commissioner of Agriculture the right to determine the amount of damages and to order dealer to pay such amount or have his license revoked, was not unconstitutional as depriving the dealer of trial by jury, since the Commissioner had no power to enforce collection of the amount of damages found by him to be due.
The above case was appealed to the Supreme Court from an order of the Circuit Judge, after a hearing on a petition for writ of certiorari, quashing an order of the Commissioner of Agriculture.
The Court, in its opinion by Justice Thomas, stated that the complaint against the Market Fruit Company alleged that the grower had sold to the company a crop of citrus fruit approximating 8,000 boxes, part of which was gathered and paid for, part picked and not paid for, and part left to be resold by the grower at a greatly reduced price; the Commissioner, at the conclusion of the testimony, entered an order that required the dealer to pay the grower, within 15 days, the sum of approximately $7,000 or, in default thereof, that his license would stand suspended. The Court stated further that it agreed with the procedure followed and sanctioned the authority invoked by the Commissioner, but that it did not concur in the manner of applying debits and credits in arriving at the amount which the dealer owed at the time. The Court then held that, therefore, such amount was improperly fixed.
The Court further commented that another provision of the contract provided that if the buyer refused to remove the fruit under conditions specified, the advance would be forfeited and no additional payment would be required.
The Court, in its opinion, said:
"The first question we must decide grows out of the construction placed by the Circuit Judge upon the language we have quoted from Section 596.11 — that is, what constitutes a failure or refusal to account in respect of a transaction. Does it mean that the dealer is required merely to furnish a statement showing what, according to his computation, is due by him to the grower, or does it mean that when he comes within the operation of the act by applying for and being awarded a license he is bound to pay as well?
"We take up this matter initially because it appears from the order entered by the Circuit Judge that he construed the language favorably to appellee and thus decided the case on the merits, thereby obviating a determination of `grave' constitutional questions which he thought would present themselves by the operation of relevant portions of the law were the requirement `to account' held to include an obligation also to pay a balance shown by the account to be due. * * *
"We do not agree that a dealer may comply with the law simply by furnishing to those from whom he purchases fruit statements of the dealings showing balances which result from his own computations; * * *
* * * * * *
"* * * It requires no strained definition to hold that he who accounts must pay. In view of the object sought to be accomplished by the legislature, we think this meaning is implicit in the phrase used."
The Court then stated:
"We do not feel obligated now to pass upon the validity of the provisions that if suit becomes necessary to adjudicate the claim, the party who was successful before the Commissioner shall not be liable for costs; that the findings and order of the Commissioner shall be prima facie evidence of the facts they contain, and the prevailing party shall recover his attorney's fee. The courts are chary of deciding constitutional questions where not absolutely necessary, and without appearing to beg the question, we hold that the appropriate occasion for determination of these matters is in a suit, if and when one is brought and the evidentiary value of the Commissioner's findings and order is challenged and the propriety of the assessment of costs and fees is questioned."
Subsequently, the Court said:
"In the final analysis the Commissioner's order in the instant case had only the effect of causing the appellee to forfeit its license in the event he elected not to pay what he owed the grower. We have said, and we reiterate, that a license is merely a privilege to do business and is not a contract between the authority granting it and the grantee, nor is it a property right, nor does it create a vested right. See syllabus by the court, No. 4, Prettyman, Inc., v. Florida Real Estate Commission ex rel. Branham, 92 Fla. 515, 109 So. 442."
At approximately the same time that the Commissioner of Agriculture was considering the case of Mayo v. Market Fruit Company of Sanford, Inc., supra, he also had before him the case of Mayo v. Lent, supra, which case was held in abeyance by the Circuit Court on certiorari until the Supreme Court decided the Mayo v. Market Fruit Company case. Subsequently the Supreme Court affirmed the order of the Circuit Judge quashing the order of the Commissioner. See Mayo v. Lent, supra.
Justice Thomas also wrote the opinion of the Supreme Court in Mayo v. Lent, supra [ 45 So.2d 879], and stated the facts as follows:
"The Commissioner of Agriculture received from the appellant-grower a complaint that appellees had entered into an agreement to purchase her oranges at $1.50 a box, had given her a check for $250 as a binder, and then had reneged, so that she was compelled to sell the fruit to some one else at one-third of that amount.
"When the complaint reached the commissioner he served notice on the appellees to reply to a formal charge that they had `failed and refused truly and correctly to account' for the fruit."
The Commissioner of Agriculture decided that a contract existed and entered an order that the appellees pay to the grower the sum of $2,985, or in default, that their license be suspended, which amount was computed by multiplying the number of boxes by one dollar and crediting the payment of $250.
The Court then said:
"* * * After the opinion in the cited case was rendered the circuit court quashed the order of the commissioner, having the view that we had definitely held `the Commissioner exceeded his authority in ascertaining and requiring payment by the packer of the loss sustained by the grower as a result of his breach of contract to harvest and pay for fruit, as distinguished from a failure to pay for fruit actually harvested and received by the packer.'
"We have re-examined the opinion and the original file in the case of Mayo v. Market Fruit Company, supra. Although such a distinction was drawn, we did not undertake to decide the commissioner's authority to discipline a dealer for breach of contract.
"About the only feature common to both cases seems to be the construction of the words `to account,' which we positively held to mean not only the furnishing of a statement but also the payment of the balance shown to be due. It will be recalled that the charge in the instant case was a failure of the packers `to account.' In the cited case we decided that the commissioner had the authority to require the payment for the fruit actually picked and to discipline the packers for their default in this regard. We took exception, however, to the manner of arriving at the amount due. * * *
* * * * * *
"In fine, the effect of that opinion was that the commissioner could discipline the buyer not only for failure to furnish a statement but also for failure to pay for the fruit shown by his own statement to have been received, and that the buyer was entitled to credits for the cash paid for fruit received and for the earned portion of the deposit.
"In the instant case we have different facts. As we have said, it is not very clear what the arrangement between the buyer and the seller was. About the only point in which they are in accord is that the check for $250 was delivered by the former to the latter. We can arrive at how this payment was to be applied only by conjecture. One fact seem clear, and that is that the buyer received no fruit whatever, therefore that he could not be penalized for failure to furnish a statement or to pay the amount indicated in such a statement to be due, under the interpretation of the cited case.
"Whether the Commissioner of Agriculture has the power to punish for a breach of a contract determined by him to have been committed is a point of law which we leave for the future, as that was not the specific charge here.
"In the instant case we are impelled to the view that the charge the appellees were required to meet did not furnish a basis for the order entered, and consequently we approve the circuit judge's order quashing it."
The case of Mayo v. Market Fruit Company of Sanford, Inc., supra, and the case of Mayo v. Lent, supra, were based on subject matter that took place before the passage of Chapter 25149, Acts of 1949, F.S.A. § 601.01 et seq., which act broadened the authority of the Commissioner of Agriculture to discipline citrus fruit dealers. Section 64 of Chapter 25149 (The Florida Citrus Code of 1949) provides:
"It is unlawful in, or in connection with, any transaction relative to the purchase, handling, sale, and accounting of sale of citrus fruit: * * *
"(4) For any citrus fruit dealer to make, for a fraudulent purpose, any false or misleading statement concerning the condition, quality, quantity, or disposition of, or the condition of the market for, any citrus fruit which is received by such citrus fruit dealer, or bought or sold or contracted to be bought or sold by such citrus fruit dealer; or the purchase or sale of which is negotiated by such citrus fruit dealer; or to fail or refuse truly and correctly to account and make full payment promptly in respect of any such transaction in any such citrus fruit to the person with whom such transaction is had, or to fail or refuse on such account to make full payment of such amounts as may be due thereon, or to fail without reasonable cause to perform any specifications or duty, express or implied arising out of any undertaking in connection with such transaction; (italics ours)."
The part above italicized of the Florida Citrus Code was added to Section 596.11 (4), which Statute was under discussion in the cases of Mayo v. Market Fruit Co., Inc., supra, and Mayo v. Lent, supra.
We have examined the transcript that was before the Judge of the lower court on certiorari to determine whether or not there was sufficient evidence before the Commissioner for the lower court Judge to sustain the Commissioner's order.
Ed Hudson, a witness for the grower (Conoley, the appellee here) identified the contract which has been signed by both Conoley and Driskell Townsend, the President of the Townsend Fruit Company. Hudson stated that he was present when the contract was signed by both parties, that after Townsend had signed it he delivered the contract to Conoley. On cross-examination by the attorney for Townsend, this question was asked:
"Q. Mr. Hudson, was the picking date of January 10, 1956 in that contract when Mr. Townsend signed it? A. No sir.
"Q. Mr. Hudson, as a matter of fact, when you got Mr. Townsend to sign the contract it wasn't anything in that contract, was there, except Townsend's signature? A. Yes sir, the form was filled all except the date, picking date.
"Q. In other words, it is your testimony that it's just like it appears here when Mr. Townsend signed it, except the figures, January 10, 1956 was not there? A. Right, yes sir."
Later, on being recalled, Mr. Hudson testified as follows:
"Q. Mr. Hudson, is it your testimony that you don't know who you talked to that day on the telephone or you do not remember talking on the telephone? A. I do not remember talking on the phone. I remember Mr. Conoley getting a call and he and I discussed the call but I didn't — I don't remember talking on the phone.
"Q. What was the nature of the call? A. Mr. Conoley said there was someone on the phone. Townsend was the man, or somebody on the phone that wanted to know if it will be all right to pick the next day, start picking the next day.
"Q. What was your reply to that? A. I don't recollect having a reply. As to what it was I don't, to my knowledge I don't remember it, what the reply was.
"Q. Now, you have previously said that Mr. Townsend did sign the contract? A. That's right.
"Q. And the only thing left in blank was the picking date. Is that correct? A. That's correct.
"Q. And he delivered this contract to you for your accomodation or for you to purchase the fruit? A. How about stating that again.
"Q. Well, he let you use his contract to go out and purchase this fruit. Is that correct? A. I didn't say that.
"Q. Well, what did you have the contract for? A. To purchase that crop of fruit if a favorable picking date could be acquired.
"Q. Did you tell Mr. Conoley that there was any if about the contract? A. No.
"Q. But you had the contract executed by Mr. Townsend? A. Yes.
"Q. And you didn't disclose to Mr. Conoley anything about the picking date? A. The picking date was discussed. He wanted it picked by the 10th.
"Q. And you didn't tell Mr. Conoley then that Mr. Townsend wouldn't accept the contract unless a specific date was had for picking? A. No, I didn't tell him that.
"Q. Mr. Hudson, when did Mr. Hughes come into this particular transaction? A. You want the date?
"Q. Yes. A. I called Mr. Frasure Hull who is working in the capacity as a broker, in regard to the crop of fruit that was for sale and that's how Mr. Hughes got into it. He had been buying fruit for Mr. Hughes.
"Q. Mr. Hull had been buying fruit for Mr. Hughes? A. As a broker, yes sir.
"Q. As a broker, I don't believe, Mr. Hudson, I don't believe you really answered that last question. We asked you when Mr. Hughes came into the picture. Was it prior to the time the contract was signed? A. No, it was a couple of days afterwards.
"Q. Now, did you notify Mr. Townsend later that Mr. Hughes had entered the picture? A. What do you mean later?
"Q. After the contract was entered into and after the fruit was picked or at any time. A. He was notified after the fruit was picked.
"Q. Did you have any arrangement with Mr. Townsend that you could dispose of the fruit for him? A. You mean was I authorized to do that?
"Q. Yes. A. There was no conversation between Mr. Townsend and I as to who was actually to pick the fruit or who was to buy it.
"Q. But in general you were to dispose of the fruit. Is that correct? A. That was my intention, yes.
"Q. And that was your understanding with Mr. Townsend? A. It wasn't mentioned to him until a later date.
"Q. Well, isn't it true, Mr. Hudson, that Mr. Townsend allowed you to use his name so that you could buy fruit? A. He signed the contract for me to buy the crop."
Mr. E.B. Conoley testified that the fruit shown in the contract was picked, that they started on the 6th of January. He testified from tickets that he had that there was 4,118 boxes, and that he had been paid a deposit of $500, that he did not know who actually picked the fruit, as a grove man delivered to him some tickets that were from the Adams Fruit Company and some from the Hughes Fruit Company. Mr. Conoley was asked:
"Q. You sold your fruit to Ed Hudson, did you not? A. No sir.
"Q. He was the only man you ever talked to wasn't he? A. No sir.
"Q. Who else did you talk to? A. I talked to a man over the telephone, called himself Mr. Townsend, the same time Mr. Hudson was in my office, the same day I signed the contract.
"Q. Was that after the fruit was picked or before? A. That was the day the fruit was picked and the contract was delivered to me.
"Q. You talked to Mr. Townsend over the telephone? A. I said I talked to a man that said his name was Townsend, long distance.
"Q. You don't know whether it was this man or not? A. I couldn't swear it was that man because I didn't see him.
"Q. What was that conversation? A. He wanted to know if he could start picking that day. And I said, `Just a minute,' and Mr. Hughes and Mr. Hudson was standing right side of the desk. And in my little office.
"Q. Who placed that call? A. I don't know who placed the call. I received it at the other end.
"Q. How did you get on to the conversation, then? You didn't pick up the phone and the man on the other end said his name was Townsend, did he? A. Mister, I don't know how the telephone company operates but my telephone rang and I answered it. He said, `This is Mr. Townsend. Is it all right if we start picking your fruit today?' I says, `Mr. Townsend, your man is in here now; Mr. Hudson.' And we signed the contract. I said, `Go ahead and pick it. Go ahead and pick it.' I said, `Just a minute and I'll let you talk to Mr. Hudson,' I give the telephone to Mr. Hudson. Now, I don't know what they said.
"Q. And was that the date the contract was signed? A. That is the date I signed the contract.
"Q. What date was that? A. It was on January 6th, Friday."
Mr. Hudson subsequently stated that he made the $500 down payment that Conoley received.
Mr. Townsend denied making the telephone call and picking the fruit or authorizing it to be picked. Mr. Hughes testified that he bought the fruit through a Mr. Hull, a broker, and hired the fruit picked.
We are of the opinion that the Commissioner had sufficient evidence before him to determine that a valid contract had been entered into between the Townsend Fruit Company and Conoley, and that title to the fruit passed to the Townsend Fruit Company at the time of the execution of the contract. From this testimony the Commissioner could have determined that Townsend gave Hudson a completed, filled out contract on Townsend forms with nothing remaining in the contract to be completed except the picking date for the fruit; that Hudson contacted Conoley, at which time Conoley and Hudson, or one of them, filled in the blank places in the contract for the picking date to make it the 10th of January.
The Commissioner could also have determined from the evidence that Townsend owned the fruit and Hudson, as his agent, had contacted a broker, who in turn sold the fruit to Hughes, who had the fruit picked.
On certiorari, the lower court does not determine the weight of the evidence, but "the reviewing court does not reweigh or evaluate the evidence but merely examines the record to determine whether the tribunal or agency had before it competent substantial evidence to support its findings and judgment, which also must accord with the essential requirements of the law." DeGroot v. Sheffield, Fla., 1957, 95 So.2d 912.
The Supreme Court in Mayo v. Lent, supra, said:
"When the complaint reached the commissioner he served notice on the appellees to reply to a formal charge that they had `failed and refused truly and correctly to account' for the fruit."
The Court then held:
"In the instant case we are impelled to the view that the charge the appellees were required to meet did not furnish a basis for the order entered, and consequently we approve the circuit judge's order quashing it."
In the case now before this court the Commissioner notified Townsend Fruit Company that a complaint had been filed against it with the Commissioner, stating:
"This Complaint sets forth that: You have failed and refused truly and correctly to account and make full payment promptly for citrus fruit purchased from the petitioner during the 1955-1956 season.
"Pursuant to Chapter 601.66, Florida Statutes [F.S.A.], a copy of this complaint is hereby referred to you and you are called upon to satisfy the complaint or to answer the same in writing to the Commissioner of Agriculture not later than Feb. 4, 1956."
The complaint referred to and made a part of the notice stated:
"Dear Mr. Mayo:
"Mr. E.B. Conoley, as agent for the complainants, on January 3 entered into contract with Townsend Fruit Company, Inc. to sell 4,000 boxes of fruit at $1.60 per box on the tree. A copy of this contract is attached hereto and made a part hereof.
"Townsend Fruit Company picked 4,118 boxes of fruit between January 6, 1956 and January 16, 1956, and thereby became indebted to the complainants in the sum of $6,588.80, of which $500 was paid to the complainants when the contract was made. No further monies have been received by complainants. We will be glad to furnish you further information that you may request, but we wanted to make this complaint to your office so that you might take appropriate action. Yesterday we filed a complaint in the Orange County Circuit Court on this transaction and have voluntarily dismissed the same today so that you might have jurisdiction of the complaint."
So it will be seen that the complaint on which the defendant responded at the hearing before the Commissioner included not only a statement that the defendant, Townsend Fruit Company, had refused to make full payment for the citrus fruit purchased from petitioner, but it included the details of the contract.
The Lent case is easily distinguishable from the instant case. In the Lent case, the fruit had not been picked, while in the instant case, as determined by the Commissioner, it had. At the time of the Lent case, the broadened provisions of the statute quoted were not applicable to it, while in the instant case the broadened provisions apply. Moreover, in the instant case, Townsend Fruit Company was bound by the acts and conduct of its agent, Hudson, and his acts in the main produced the situation about which this controversy arose. To hold that Townsend should escape would penalize the innocent party to the contract who had not brought about such situation.
Townsend Fruit Company, Inc. and Driskell Townsend, its President, answered the complaint, and the hearing hereinabove referred to was conducted by the Commissioner. No objection was made to the notice by the defendants, nor to the form of the complaint at the hearing before the Commissioner or the procedure pursued, but rather the appellants, by their answer and actions, submitted the controversy outright for determination on its merits, and even so we are not called upon to determine at this late date the sufficiency of the complaint upon which the defendants were tried before the Commissioner. If the Commissioner had sufficient evidence before him to determine that the Townsend Fruit Company had purchased the fruit involved from Conoley, as trustee, and the amount due the trustee for this fruit, and we so hold, the question then arises whether or not the Commissioner had the authority under Section 64(4) of Chapter 25149, Acts of 1949 (Section 601.64(4), Florida Statutes 1955, F.S.A.), to order Townsend Fruit Company, as a citrus fruit dealer, to pay the said sum of money, or in default thereof, to have its license revoked. The record does not disclose any attack on the validity of the statute above mentioned. A reference to this section, which we have heretofore quoted in this opinion, convinces us that the Commissioner had such power. The referred to Section makes it unlawful in connection with the purchasing, handling or sale of citrus fruit "to fail or refuse truly and correctly to account and make full payment promptly in respect of any such transaction in any such citrus fruit to the person with whom such transaction is had, or to fail or refuse on such account to make full payment of such amounts as may be due thereon, or to fail without reasonable cause to perform any specification or duty express or implied arising out of any undertaking in connection with any such transaction;".
We are not concerned with that part of Section 601.66, which, in the event the citrus fruit dealer does not comply with the Commissioner's order to pay, authorizes a suit in the proper Circuit Court for the total sum of money found due by the Commissioner, and which makes such sum prima facie correct. Any question as to these provisions of the above section of the statute can only arise on proper appeal in a suit based on such provisions.
We, therefore, affirm the order of the lower court in quashing the writ of certiorari.
KANNER, C.J., concurs.
PLEUS, J., dissents.
On Petition for Rehearing
Rehearing denied.
I adhere to the views expressed in my dissenting opinion and therefore would grant the petition for rehearing.
It is with the utmost reluctance that I find it necessary to render my first dissent. Were the matters involved not as fundamental as they appear to me to be, I would merely note such dissent. However, in view of what I conceive to be a further erosion upon the judicial power by an extension of the limits heretofore imposed upon administrative action by our Supreme Court, I feel constrained to note my reasons.
The importance of such administrative regulation as may be imposed by the legislature upon citrus fruit dealers for the benefit of this industry so vital to our state cannot be made to serve as the excuse for the exercise of so called quasi-judicial power in excess of valid grants by the legislature in accordance with organic restraint. Merely under the guise of protecting a segment of our economy we cannot justify unathorized administrative action.
The statutes involved are set forth in the majority opinion except for Section 601.65, Florida Statutes 1955 F.S.A., which is important as showing the intended scope of the administrative action which the Commissioner seeks to justify. This section reads as follows:
"If any citrus fruit dealer violates any provisions of this law he shall be liable to the person injured thereby for the full amount of damages sustained in consequence of such violation. Such liability may be enforced either (1) by complaint to the commissioner, as provided in § 601.66 or (2) by suit in any court of competent jurisdiction; but this section shall not in any way abridge or alter the remedies now existing at common law or by statute, and these provisions are in addition to such remedies."
Avowedly the above section attempts to make liability for all damages sustained enforceable either by the Commissioner or by a court of competent jurisdiction at the option of the complainant. That is exactly what was sought to be accomplished so far in these proceedings. In fact, a complaint had already been instituted in the Circuit Court of Orange County to obtain redress and it was dismissed by the plaintiff on the day the complaint was filed with the Commissioner so that the latter "might have jurisdiction of the complaint."
Such complaint as set forth in full in the majority opinion was filed January 27, 1956 and alleges that a contract had been entered into on January 3, 1956 by the complainant and the appellant here, a copy of such contract being attached to the complaint. This was the first error in the complaint because according to the "meager record" before the "duly designated officer" of the Commissioner of Agriculture, the contract was actually entered into on January 6, 1956. The complaint further recites that the appellant "picked 4,118 boxes of fruit between January 6, 1956 and January 16, 1956, and thereby became indebted to the complainants in the sum of $6588.80 of which $500 was paid to the complainants when the contract was made." The "meager record" does show conclusively that Townsend Fruit Company neither picked any of the fruit nor did it make the $500 down payment to the complainant.
Just exactly what kind of "officer" of the Department of Agriculture there is beside the Commissioner himself is not made to appear except as he is self-styled in the notice served. Actually the notice is on the letterhead of the Department of Agriculture showing it to have come from "Citrus Vegetable Inspection Division, J.F. Mays, Assistant Director Bond License Department." It is signed by the said Mays as the "duly designated officer" and the same individual presided at the hearing, rendering the so-called findings to the Commissioner. Cf, Article III, § 27, Constitution of Florida F.S.A. This constitutional restriction is further apparently disregarded in § 601.71, Florida Statutes 1955, F.S.A. which refers to "officers" of the Commissioner.
Based upon this complaint (which was merely in the form of a letter from complainant's counsel to the Commissioner) and, on the letterhead of the Citrus and Vegetable Inspection Division signed by the so-called "duly designated officer", Townsend Fruit Company was transmitted a copy of such complaint and notified that the sole specific charge against which it was called upon to defend was:
"You have failed and refused truly and correctly to account and make full payment promptly for citrus fruit purchased from the petitioner during the 1955-1956 season."
Townsend was also advised in the same notice that it was called upon to satisfy the complaint or answer the same in writing not later than February 4, 1956 — approximately seven days after the complaint and notice were mailed to Townsend. Upon answer by way of denial having been filed by Townsend the matter then came on for hearing before the said Mays on March 2, 1956, the transcript of which recites him to be an "officer of the Department of Agriculture heretofore designated by the Honorable Nathan Mayo, Commissioner of Agriculture, * * *."
My evaluation of the admittedly "meager record" indicates the following to be the facts:
1. That on or about January 3, 1956 Driskell Townsend, the president of Townsend Fruit Co. signed a Townsend Fruit Company's contract form for the purchase of an estimated 4000 boxes of oranges at $1.60 per box on the tree from E.B. Conoley, as trustee. At the time it was signed it was completely filled out showing the name of the grower as seller and Townsend as buyer; the price per box; the estimated volume of fruit and a statement acknowledging receipt of $500. However, the picking date was left blank and the contract delivered to Hudson, a broker, or in the language of the trade, a "bird dog", with specific instructions to secure a January 15, 1956 picking date. Upon Conoley's agreeing to such date it was to be inserted in the contract, the same was then to be signed by Conoley and returned to Townsend and the required deposit would then be provided by Townsend. It was clear that Townsend agreed to buy, and Hudson understood this fact fully, only if the specific picking date could be obtained. The contract, after acknowledging receipt of the part payment of $500, provided that the balance should be paid "when fruit is gathered". It was provided that at time of delivery of fruit it would be merchantable, free of frost and dryness and of the maturity required for frozen concentrate. It was warranted against a prior sale and any existing liens or contracts.
2. Three days later and on January 6, 1956 Hudson took this contract form so signed by Townsend to Conoley but did not disclose his instructions regarding the picking date. On the other hand Hudson inserted the date of January 10, 1956 as the picking date. Conoley signed the contract on January 6, 1956.
3. The facts are not clear from the record as to actually what occurred when Hudson was dealing with Conoley. According to Hudson, when he was unable to get Conoley to agree to the January 15 date he then contacted another broker named Hull who in turn contacted a licensed and bonded dealer named Hughes who agreed to buy the crop at $1.65 per box and begin picking immediately. Hughes testified that he had purchased the crop through Hull without any knowledge that Townsend was involved. Hudson further testified that through Hull, Hughes had agreed he could pick the fruit by January 10 and that he had been reimbursed the $500 part payment by Hughes. Hughes corroborated this and stated that he had harvested the entire crop and was liable for the purchase price.
The telephone call which Conoley testified about from the mysterious person whom he could not identify was obviously incompetent under any rule of evidence.
Following the hearing and on May 28, 1956 the Commissioner entered his order as copied in full in the majority opinion. He finds that complainant and Townsend had entered into a written contract on January 3, 1956 which was an erroneous date under the uncontradicted testimony before him; he leaves the inference that the down payment was made by Townsend which likewise is untrue under the uncontradicted evidence. He finds from what he terms the "rather meager record of testimony" that D.R. Hughes got the fruit from the petitioner's grove. There is no question that Hughes did so. He specifically admitted that he did, that he had actually advanced the down payment and that he was liable for the value of the fruit, having purchased the same through a broker named Hull who in turn had dealt through Hudson. But then the finding engages in speculation and therein, without any predicate in the testimony, it is announced that "the fruit undoubtedly was picked pursuant to and by virtue of, the contract aforesaid." This deduction is then followed by a frank admission that "Just what the hook-up between Townsend Fruit Company, Inc., and D.R. Hughes was, is not very clear from the record, but the undersigned Commissioner is satisfied from what does appear in the record that the fruit in question was picked because of the contract of sale signed by petitioner and Townsend Fruit Company, Inc." Thus it is that without even enough evidence to satisfy an administrative officer and in the face of his own inability to find such predicate, he resorts to pyramiding an inference on an inference and thus sustains the complainant's claim. This should be sufficient to reverse the court below on no other rule than that even the action of an administrative official must be supported by competent substantial evidence to justify such action.
See De Groot v. Sheffield, Fla. 1957, 95 So.2d 912; Kashin v. Food Fair, Inc., Fla., 97 So.2d 609; Tropical Park Inc., v. Ratliff, Fla., 97 So.2d 169; Parsons, The Substantial Evidence Rule in Florida Administrative Law, VI U.Fla. L.Rev. 481 (1953).
We may assume that by applying the principles of an agency by estoppel or a principal being bound by the acts of his agent within the apparent scope of the agent's authority, there was a subsisting contract between Townsend and Conoley. That this contract was executory and never performed by Townsend is beyond peradventure of doubt. Nor does it make any difference whether title to the fruit passed at the time of its execution. The majority opinion holds that it did. It is the writer's opinion that it did not. The fact is that Townsend did not gather the fruit and thus the petitioner had no cause against Townsend except for breach of contract in which his damages would be the difference between what Townsend had agreed to pay and what petitioner had otherwise realized from a sale of the fruit; or assuming, which was not proved in the record, that the action by Townsend placed it in the hands of Hudson to work some kind of fraud upon complainant there might have been an action sounding in tort for deceit. The majority opinion ties to this latter theory and holds that the acts of Hudson "produced the situation about which this controversy arose." This is conclusively answered by merely going back to the complaint and notice to show that no such issues were before the Commissioner and it is extremely doubtful even under his "broadened" powers that he would have authority to adjudicate liability in the face of such issues; and thus we conclude that the maxim concerning one of two innocent parties is wholly inapplicable.
The following cases are cited solely for the purpose of showing how an unwarranted statement by way of dictum in a mere concurring opinion by a single judge can later become the predicate of erroneous decision: Bowers v. Dr. P. Phillips Co., 1930, 100 Fla. 695, 129 So. 850; Roe v. Winter Haven Co., 1932, 104 Fla. 317, 140 So. 463; Metcalf v. R.D. Keene Co., 1935, 122 Fla. 27, 164 So. 704 (The dictum occurred in the concurring opinion of Ellis, P.J.); Gregg Maxcy Inc., v. Bateman, 1937, 126 Fla. 747, 171 So. 811 (The dissenting opinion of Mr. Justice Brown is unanswerable); Winter Haven Fruit Sales Corporation v. C.L. Bundy Sons, Inc., 1937, 128 Fla. 324, 174 So. 726; Givens v. Vaughn-Griffin Packing Co., 1941, 146 Fla. 575, 1 So.2d 714.
Nor do we think that there was any basis for Townsend to object to "the form of the complaint" nor did it have much option except to submit the controversy for determination on its merits. But that is not to say that the Commissioner may then go far and beyond the issues and as I see it, far and beyond his authority as limited by prior decisions of the Supreme Court, and thus bind Townsend.
We then come to the crux of this matter and that is whether the case of Mayo v. Lent, Fla. 1950, 45 So.2d 879 is controlling.
Approximately one year before Lent and on May 6, 1949 the Supreme Court decided the two cases of Mayo v. Market Fruit Co. of Sanford, Inc., Fla., 40 So.2d 555, rehearing denied June 9, 1949; and Mayo v. New, Fla., 40 So.2d 365. The opinions in these cases, as definitely construed in the later decision in Lent, supra, go no further than to hold that where there is a contract for the purchase and sale of citrus fruit and the contract is breached by nonperformance on the part of the purchaser, the limit and extent to which the Commissioner could go under the then statutory authority was to require the purchaser to account and pay for the fruit actually picked by the purchaser and discipline him for his default in that regard. As stated in Market Fruit Co., supra [40 So.2d 558]:
"Of course if actual damage is shown to have grown out of the contract because of his failure to take the remainder of the crop, that could be determined in a proper proceeding in a court of competent jurisdiction."
I interpret this to mean that it could be determined only in a court of competent jurisdiction. If such damage arising by failure to take part of the crop can be determined only in a court of competent jurisdiction, a fortiori, damage for failure to take any of the crop can be determined only in such court. Further, in Lent, [45 So.2d 881] the Supreme Court announces that the sole effect of its decision in Market Fruit, supra, was that the Commissioner "could discipline the buyer not only for failure to furnish a statement but also for failure to pay for the fruit shown by his own statement to have been received, * * *"; and that its decision was merely that the Commissioner "had the authority to require the payment for the fruit actually picked and to discipline the packers for their default in this regard." (Emphasis supplied.) Obviously the court meant actually picked by the person sought to be disciplined.
In Lent, supra, there was a contract of purchase and sale whereby the dealers had agreed to purchase the crop for $1.50 per box with a $250 down payment having been made. The dealers did not perform and the entire crop was then sold to a third party at $.50 per box. The notice served on the dealers charged them with having "failed and refused truly and correctly to account" for the fruit. This, of course, could refer only to the fruit purchased under the contract. The Commissioner entered his order awarding damages to the complainant and requiring the dealers to pay the sum of $2,985 and upon failure so to do advising them their license would be suspended. This amount was arrived at by multiplying the number of boxes by $1.50 per box, the contract price, deducting therefrom the $.50 per box for which the grower had sold to the third party and crediting the initial payment of $250.
Nor was the Supreme Court at all concerned with the question of whether the contract involved had brought about an immediate passage of title to the crop.
After reviewing, interpreting and definitely defining the limits of its prior decision in Market Fruit as above indicated, the Supreme Court without hesitation affirmed the Circuit Court in quashing the order of the Commissioner as being beyond his authority. The court predicated its decision upon the fact the buyer had received no fruit whatever and could not be penalized for failure to furnish a statement or to pay the amount indicated in such a statement to be due. It specifically held in Lent that in Market Fruit it had had no occasion "to determine the commissioner's authority with reference to the fruit not gathered" and then held:
"Whether the Commissioner of Agriculture has the power to punish for a breach of a contract determined by him to have been committed is a point of law which we leave for the future, as that was not the specific charge here."
The Court then concluded its opinion by holding that the charge the appellees were required to meet did not furnish a basis for the order entered.
Unless we resort to distinctions without differences Lent is, to my mind, absolutely indistinguishable from the case at bar. The alleged bases upon which the majority opinion finds Lent to be "easily distinguishable" are not valid. The first one is the statement that the fruit had not been picked in Lent whereas in our case it had been picked. The fact is that in both cases the fruit had been picked by persons other than the purchaser. The second basis is the "broadened provisions of the statute". The provisions so referred to are those which the writer assumes were probably enacted by the 1949 session of the legislature to bridge the gap in the delegated quasi-judicial power found to exist in Market Fruit and New. These provisions were added to § 596.11(4), now § 601.64, Florida Statutes 1955, F.S.A., by Chapter 25149, Laws of Florida Acts of 1949 and purport to make it unlawful for any citrus fruit dealer "to fail without reasonable cause to perform any specification or duty express or implied arising out of any undertaking in connection with any such transaction; * * *"
It is recalled that Lent was held in abeyance by agreement of counsel in the Circuit Court pending the decision in Market Fruit.
We dispose of the applicability of this 1949 provision by holding that the Commissioner did not proceed thereunder but filed his formal notice and "charge" by setting forth a failure and refusal truly and correctly to account and make full payment for the fruit purchased. Secondly, if the Commissioner had attempted to proceed under the broadened provisions we would then have been met, as would have counsel in the court below, with the question, and grave indeed it is, of the constitutional validity of such delegation of real judicial power. Therefore it is no answer to say, as does the majority opinion, that the validity of the statute was not questioned because counsel was entitled to rely upon the prior decisions holding that under a charge of failure to account and pay for fruit purchased, the citrus dealer could not be penalized or damages awarded against him on account of breach of contract.
That this is the sole theory on which the Commissioner proceeded is conclusively made to appear by the following language from the return of the Commissioner to the writ of certiorari issued by the court below:
"* * * (A)nd further avers that the issue before this respondent in said administrative proceeding did involve a charge that petitioners herein had violated a provision of the Florida Citrus Code applicable to citrus fruit dealers, namely, the failure or refusal truly and correctly to account and make full payment of such amounts as may be due by the petitioners upon a transaction for the purchase by petitioners of citrus fruit, which said charges are made a violation of the Florida Citrus Code by the provisions of Section 601.64, Florida Statutes, 1955 [F.S.A.]."
The last basis for distinction which the majority opinion advances was that Townsend was bound by the acts and conduct of its agent, Hudson, and his acts "in the main produced the situation about which this controversy arose." This is indeed a novel predicate for legal liability for breach of contract. Regardless of the "meager record" I am willing to concede, arguendo, that there was a subsisting contract between Townsend and Conoley effected by the act of Hudson acting within the apparent scope of his authority as agent for Townsend. But on a charge of failure to account and pay for the fruit this is as far as the agency is relevant; and because of actions by the agent after the signing of the contract, we cannot hold Townsend responsible in a proceeding such as was had before the Commissioner's agent as approved by the court below. It is interesting to note that the majority opinion feels that "we are not called upon to determine at this late date the sufficiency of the complaint upon which the defendants were tried before the Commissioner." To be sure, from the record produced and the action taken by the Commissioner, the appellants here were in truth and in fact "defendants" who were being "tried" before the Commissioner. It is not a question of the "sufficiency" of the complaint or the notice or the charge; rather it is that neither the complaint, the notice, or the charge contemplated the action taken by the Commissioner nor justified it under the aforementioned "broadened provisions" inserted in 1949.
Thus it is that appellants here did not have to attack the validity of the added provisions for the simple reason that the Commissioner was not proceeding thereunder. When however the Commissioner and the complainant come before this court and for the first time invoke and rely upon the "broadened provisions" of the statute — which to the writer's mind are bedecked completely with red flags of invalidity — in their joint attempt to sustain the Commissioner's action favorable to the complainant, we cannot sanction such action by holding that no question of validity was theretofore raised. To do so, the court would have to overlook the fact that such provisions are for the first time invoked here.
Thus by grounding the authority of the Commissioner on the broadened provisions, when those were not invoked in the first instance by him, as the predicate for his authority, we ourselves are injecting the grave constitutional question which the writer prefers not to do.
While frankly admitting that the prior decisions in New and Market Fruit, supra, sustain the procedure whereby in one fell swoop the Commissioner may adjudicate liability, make a money award in an adversary proceeding and enforce it by requiring payment within a specified period or the dealer's license would be suspended and he would no longer be entitled to engage in a lawful calling, we believe that such proceedure cannot be sustained on the theory that it is a mere act of "discipline" or "punishment". As a matter of fact, as we all know, such action would in many instances be far more effective than a common-law execution. Nowhere in this record is the writer able to find the slightest semblance of a notice that Townsend's license was in jeopardy until it was served with the final order of the Commissioner giving it fifteen days to pay up or quit business. Every element of fair play, if not mandatory requirements of due process, require otherwise. Our statute is specific and by § 601.67 the authority of the Commissioner to revoke or suspend a license is dependent upon the fundamental basic requirements of due process, namely, notice and hearing — and that notice must at least by implication if not express words let the licensee know that his license is in jeopardy. Prior decisions of the Supreme Court justify this view and we may confidently affirm that such license whether a right or a privilege or a privilege in the nature of a right, vested or otherwise, is of substantial and in many instances, indispensable value to the holder which cannot be capriciously or arbitrarily revoked or suspended; but the deprivation thereof must take place only in the manner and on the grounds provided by law. Carnegie v. Department of Public Safety, Fla. 1952, 60 So.2d 728; State ex rel. Paoli v. Baldwin, 1947, 159 Fla. 165, 31 So.2d 627. Surely the license of one to engage in the lawful business of dealing in citrus fruit is entitled to as much protection as the license of one authorized to train horses on the racetracks in this state or of the license of one to drive an automobile on the highways of this state. Surely, too, the need for regulation in the latter two instances is far greater than the need for regulation of citrus dealers to protect the growers of this state whom this writer has observed during his thirty years of residence in the heart of the citrus belt to be thoroughly capable in every respect of exercising sound business judgment and protecting themselves in their contractual dealing without the need of administrative paternalism. Cf. the language of Justice Buford in Bowers v. Dr. P. Phillips Co. cited in footnote 4, supra.
And finally, the majority opinion has now, in effect, made available to the complainant as prima facie evidence the findings and orders of the Commissioner for use in an action in a court of competent jurisdiction seeking to obtain a money judgment. Thus, based upon a record devoid of competent substantial evidence, based upon false issues and a resultant void order beyond the authority of the Commissioner, the majority opinion is content to beg the question and blind itself to what every lawyer knows will be the result in the courtroom when the findings and order are introduced in evidence by saying that we are not concerned with that part of the statute which gives to such findings and order virtually impregnable verity.
Now to recapitulate:
1. Under the notice and charge served upon Townsend and the section of the statute invoked, Lent is controlling and indistinguishable on the facts; and instantly it was shown that the purchaser under the contract did not harvest the crop but that someone else did, the Commissioner had no authority to devise a theory of vicarious liability based upon his speculation that the fruit, although harvested by someone else, was "picked pursuant to, and by virtue of," such contract or "because" of the contract — whatever that may mean.
2. If the Commissioner proceeded under the "broadened provisions" or "broadened authority" of the amendments added in 1949 to § 601.64(4), Florida Statutes, F.S.A., then Townsend had a right to be notified and charged accordingly. Had such been done the grave constitutional questions raised thereby would have been brought to light immediately instead of being covered by a basket until judicial review is sought — thus resulting (as I conceive the majority opinion to do) in our implied approval of the validity of such sections.
3. Regardless of the above, the record made is hopelessly insufficient to constitute competent substantial evidence to sustain the Commissioner's action; and our authority to review and reverse on appeal from certiorari in the lower court is unquestioned.
Section 601.68, Fla.Statutes 1955, F.S.A.; and footnote 69 to Rogers and Baxter, Certiorari in Florida, IV U.Fla.L.Rev. 477, 493-494 (1951) where it is stated:
"* * * (W)henever quasi-judicial actions of boards, bodies, officers, and commissions are reviewed by certiorari, the Supreme Court has said that the scope of review is not limited to questions of jurisdiction and regularity of procedure but extends to all questions of law, and that `simple errors' will be corrected. (Citations omitted.) Between 1930, when the rule was first announced and applied, and 1950, when it was reiterated, the Supreme Court has repeatedly reviewed commission orders, in line with the doctrine announced, thus applying and tacitly reaffirming the rule. It has not discussed the rationale of the distinction, and some lawyers doubt the validity of making a distinction between the scope of the review of judicial and quasi-judicial action; however, the distinction is now well settled."
4. We must be concerned with the provisions of the statutes which now, under the majority opinion, will make the findings and order of the Commissioner prima facie evidence of the facts — thus obviating the necessity of competent substantial proof sufficient to sustain a proper complaint in an action in a court of competent jurisdiction. The result, as every lawyer must know, is a foregone conclusion and we should not blind ourselves to established fact.
5. Under no circumstances should we extend or enlarge the power to deprive one of a license to engage in a lawful or legitimate calling or undertaking; and we cannot justify such action by engaging in a useless battle of semantics by referring to such license as "merely a privilege" which is neither a contract, nor a property right. The deprivation or suspension thereof can only be effected by due and proper notice in accordance with the basic elements of due process.
I would therefore reverse with direction to quash the order of the Commissioner.