
    Agnes P. SNEDEKER, Alvin H. Drake, and Edith Dearborn, as and constituting the Florida Board of Massage, Appellants, v. VERNMAR, LTD., a limited partnership under the laws of the State of Florida, et al., Appellees.
    No. 31412.
    Supreme Court of Florida.
    April 4, 1962.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellants.
    Simmonite, Budd & Walsh and Garland M. Budd, Miami, for appellees.
   O’CONNELL, Justice.

Plaintiffs in this cause all operate their businesses (for the avowed purpose of slenderizing the human body) under the franchises from the “Stauffer System.” They filed their complaint in July 1958 for declaratory decree and injunctive relief, naming as defendant the Florida Board of Massage.

Plaintiffs alleged that none of them and none of their employees hold certificates of registration issued by the defendant board as prescribed in Chapter 480, Fla.Statutes, 1957, F.S.A., none held any diploma or credential issued by any recognized School of Massage, none can furnish proof of experience or education consisting of a continuous course of study as outlined by Sec. 480.09, and none qualify under the exemptions listed in Sec. 480.03.

It should be noted that the complaint was filed in July 1958 and thus the provisions of Chapter 480 as amended in 1957 were applicable. However, the complaint applies equally to Chapter 480 as amended in 1959 and in 1961, for such amendments are basically immaterial to the issue involved.

Plaintiffs alleged that they operate Stauf-fer tables, electrically operated mechanical tables, which provide their customers with a course of passive exercise by moving certain portions of the body in relation to other portions and also vibrate the body, being designed to produce muscle relaxation, stimulation of the blood circulation, posture improvement, and reduction of the fatty tissues of the body, all of which have a tendency to result in slenderizing of the body of the user.

Further, they alleged:

“ * * * Plaintiffs say that when a customer comes to one of their places of business, the customer is assigned a certain period of ‘use time’ of the tables and equipment located in said place of business, under the franchise agreement and equipment-lease agreement between the respective Plaintiffs and Stauffer Reducing, Inc. That the time allocation is made by the business manager of the establishment and the customer is conducted to the first table and instructed in position by a technician, who, when the customer is in proper position on the table, activates the table by turning a switch and setting a time-clock, and thereafter, the customer, in ai like manner, is conducted from table to-table until the allocated time schedules are completed. The customer does not disrobe at any time and no employee manually manipulates the customer’s body. Plaintiffs say that by their franchise agreement they are required not to, and do not make any therapeutic claims whatsoever in behalf of the ‘Stauffer System’ of passive physical! exercise, but do state that the mechanical passive exercises transmitted to the-human body by the electrically operated: mechanical tables tend to relax the-muscles, stimulate blood circulation, improve posture, and reduce fatty tissue: in the body. Plaintiffs say that the machines owned by them do not rub, stroke or knead the body, nor do the Plaintiffs, by machine or otherwise, administer oil rubs, salt glows, hot or cold packs, any kind of steam bath, cabinet bath, sitz bath, colon irrigation, nor any manual manipulation whatsoever, and all customers prior to being permitted to use any of the equipment of Plaintiffs, are questioned as to whether they are suffering from any pathological! condition and if they are, Plaintiffs, as-they are required so to do by their franchise, refuse to permit any such customer to use any of their said tables- and equipment without first obtaining a doctor’s examination and a statement that the use of such machinery will not be harmful.”

Plaintiffs asserted that they were not in the business of massage as it is generally known but by reason of the language of the statute, Sec. 480.01, F.S.A., the defendant board claims they fall within the classification of masseurs or masseuses and threatens to arrest them for operating as masseurs in violation of Chapter 480. Plaintiffs alleged the provisions of Chapter 480 have no reasonable relation to their business and the requirements thereby imposed are arbitrary, and if enforced against them would deprive them of their property and liberty without due process of law and deny to them the equal protection of the law, contrary to the provisions of the state and federal constitutions.

Plaintiffs’ complaint concluded that unless the defendant was restrained from enforcing against them the provisions of Chapter 480 they would be compelled to either abandon their businesses or assume the risk of fine and imprisonment for violation of such provisions. They asked the court to determine the validity of the chapter, with particular attention to sections 480.01, 02, 03 and 09, as related to them, and to issue its injunction enjoining the defendant board from enforcing or attempting to enforce those provisions against them.

Plearings were held before the chancellor at which he heard the testimony of six different doctors and of an operator of a Stauffer salon. The medical testimony was conflicting as to whether or not the operation of the subject machines could be detrimental to the health of any user and as to whether or not it would be of benefit to the users of the machines if the operators thereof took the course of study prescribed for masseurs in Sec. 480.09.

Thereafter the chancellor entered his first decree and the appellant board took this appeal directly to this Court.

The first problem presented for decision involves our jurisdiction to entertain this appeal.

In his decree the chancellor recited that the appellees, as plaintiffs below, had asked for a construction of F.S. Chapter 480, F.S.A. and particularly Sections 480.01, 02, 03 and 09 and “in particular, whether the above Statutes are constitutional.”

While the decree states that to require them to comply with F.S. Chapter 480, F.S.A. “would deprive the plaintiffs of their constitutional rights of due process and equal protection of the laws, and deprive the plaintiffs of their property without due process of law, contrary to the Constitution of the State of Florida and the Constitution of the United States”, the chancellor did not in specific words find any of the sections of said statute unconstitutional and invalid. Nor did the decree construe any controlling provision of either the state or federal constitution

The question then arises as to whether the decree did in effect hold the subject act, or portions thereof, to be invalid or merely held them to be invalid as applied to the plaintiffs under the facts of this case.

The appellant board contends that the decree construed provisions of the constitutions, state and federal, and therefore this Court has jurisdiction of this appeal.

On the other hand the appellees state in their brief that they “do not contend that the Chancellor’s decree has such a broad scope.” They seem to be of the view that the decree merely held the act unconstitutional, as applied to them, rather than striking down the act, or portions thereof, because it was invalid.

If the decree merely held the statute unconstitutional as applied to the ap-pellees-plaintiffs under the facts of this case rather than invalid per se, then we do not have jurisdiction of this appeal. See Stein v. Darby, Fla.1961, 134 So.2d 232.

Despite appellants’ contention on the point we find no place in the decree in which it can be said that the chancellor undertook to “explain, define or otherwise eliminate existing doubts arising from the language or terms” of any constitutional provision. See Armstrong v. City of Tampa, Fla., 1958, 106 So.2d 407, 409. If we have jurisdiction of this cause it can only be because the decree passed directly upon the validity of F.S. Chapter 480, F.S.A., or some section thereof.

However it is not clear that the effect of the decree is to merely hold the statute, or portions thereof, unconstitutional only as applied to the appellees-plaintiffs under the facts of this case.

The validity of Sections 480.01, 02, 03 and 09 was placed in issue and statements in the decree would indicate that the chancellor determined that portions thereof were invalid, yet he did not so state. The decretal part of the order under attack merely enjoined the appellant board from enforcing the penal provisions of Chapter 480 against these appellees-plaintiffs.

The matter is further complicated by the fact that at one place in the decree the chancellor stated that “ * * * it is clear that the Legislature did not intend to include the use of electrical equipment here involved in its definition of a masseur or masseuse.” Such was the decision of this Court in Florida Board of Massage v. Underwood, Fla.1950, 45 So.2d 184, 17 A.L.R.2d 1181. However the statute as amended in 1957 clearly indicates that the legislature intended to subject the appellees-plaintiffs, and operators of similar devices, to the provisions of the statute.

Sec. 480.01(1), as amended in 1957, read:

“(a) For the purpose of this chapter the term masseur or masseuse shall he deemed to be a person who practices, administers or teaches all or any one or more of the following subjects and methods of treatments, viz: who administers or teaches treatments with any mechanical or electrical apparatus for the purpose of body slenderising, body reducing or body contouring.
“(b) Further, a person who has studied the underlying principles of anatomy and physiology and administers or teaches all or any one or more of the following subjects and methods of treatments, viz: oil rubs, salt glows, hot or cold packs, all kinds of baths including steam rooms, cabinet baths, sitz baths, colon irrigations, body massage either by hand or by any mechanical or electrical apparaHts or device (excluding fever therapy), applying such movements as stroking, friction, rolling, vibration, kneading, cupping, pettrasage, rubbing, effleurage, tapotment.
“(c) * * *.” (Emphasis supplied.)

There appears to be no doubt that the plaintiffs administer “treatments with * * * electrical apparatus for the purpose of body slenderizing, body reducing or body contouring” as specified in Sec. 480.01(1) (a), F.S.A. Further, it is difficult to find that Sec. 480.01(1) (b) does not also include them, for it would appear that the subject tables do “massage” the body by applying such movements as friction, rolling, or vibration, each of which is mentioned therein and were not specified in the statute as it existed when the Court considered it in Florida Board of Massage v. Underwood, 45 So.2d 184, supra. Furthermore, at the hearing before the chancellor one medical expert testified that the tables do “massage” the body, and at oral argument counsel for plaintiffs acknowledged that they are now included within the purview of Chapter 480, although he contended that to so include them violates the plaintiffs’ constitutional rights.

The fact that the appellees-plaintiffs are clearly included within those regulated by the statute, and that all other persons who operate similar devices are also included, makes it unlikely that the chancellor merely determined that the statute, or portions thereof, was unconstitutional only as to ap-pellees-plaintiffs under the facts of this case rather than invalid per se. If invalid as to these appellees-plaintiffs, it would seem that the statute would also be invalid as to all other operators of Stauffer system tables as well as the operators of all similar devices.

Rather than speculate as to whether the decree did or did not in effect hold portions of F.S. Chapter 480, F.S.A. to be unconstitutional and whether we do or do not have jurisdiction of this cause, we have determined that we should not now decide the question of jurisdiction but rather, without acting thereon, we should temporarily relinquish control of this cause to the chancellor who entered the decree here involved for the sole and only purpose of having the chancellor enter an order setting forth whether he directly passed upon the validity of F.S. Chapter 480, F.S.A., or any portion thereof, and if so what portions were held valid or invalid.

Upon receipt of a copy of this order the chancellor is requested to forthwith enter such an order nunc pro tunc.

Upon entry of such order the clerk of the trial court in which said order is filed is requested to forward a certified copy thereof to this Court and to counsel of record for each of the parties hereto.

Thereafter the parties hereto may request leave to file additional briefs if they so determine.

This Court will thereafter determine its jurisdiction in this cause and either retain and decide it or transfer it to the appropriate district court of appeal.

It is so ordered.

TERRELL, THOMAS and THORNAL, JJ., concur.

ROBERTS, C. J., and DREW and HOB-SON (Ret.), JJ., dissent.

DREW, Justice

(dissenting).

It is indisputable that the decree in this case permanently enjoined the enforcement of portions of F.S. Chapter 480, F.S.A., against the plaintiffs, appellees in this Court, and that such equitable relief must be predicated on a decision, one, that the statute did not in terms apply to plaintiffs, or, two, that insofar as it did so apply it was unconstitutional and invalid. In the face of the plain words of the law, involving no ambiguity susceptible of construction, and the recognition of same by the parties implicit in their exclusive reliance on constitutional infirmities, the decision cannot in my opinion be regarded as one construing the statute to be inapplicable and must, therefore, constitute a direct ruling on the validity of the controverted provisions, regardless of confusion in the language used by the court.

The real confusion, I think, lies in the attempt to distinguish the legal effect of a decision holding a statute unconstitutional as applied to specific facts from that of a decision holding a statute unconstitutional vel non. Historical limitations on judicial power to nullify legislative acts for constitutional transgression would not in any case I can foresee permit a decision upon statutory validity in the abstract or upon any consideration other than its application in a certain case. Courts can pass on the constitutionality of a statute “only as it applies and. is sought to be enforced in the determination of a particular case before the court, for the power to revoke or repeal a statute is not judicial in its character.” A decision that a statute in particular circumstances collides with constitutional inhibitions may, of course, deprive it of all or only part of its effect, depending on issues of separability, etc., and the collision or violation may be plain from the terms of the law in controversy or from such terms only as they operate or apply in the particular case. The adjudication, however, of validity or invalidity in every such case is a decision passing upon the validity of the statute as applied to the facts at bar, unless of course, the court ultimately concludes that the terms of the law can be construed as inapplicable to such facts, in which event the constitutional issue is not decided.

While the language of the opinion in Stein v. Darby, Fla.1961, 134 So.2d 232, purports to make the distinction for which it is cited in the majority opinion, the decision itself can be explained as one merely determining district court jurisdiction to entertain an appeal from a trial court order not actually passing on a constitutional issue, raised by motion to dismiss, but dismissing the complaint in a situation where the controverted statute might have been construed as insufficient to support the action because of the potential constitutional objection. The district court in that case did treat the constitutional issue and reverse on that ground, hut upon certification here for review by certiorari the only issue actually decided was, as stated, the district court’s jurisdiction to review the trial court ruling.

The decision in the instant case, for reasons above, is not one construing the statute to be inapplicable, and the record does not, as it has in previous cases, indicate alternative theories upon which the case could have been decided so as to authorize remand for clarification. Moreover, the Constitution, Article V, Sec. 4, F.S.A., provides that “appeals * * * may be taken directly to the supreme court as a matter of right * * * from final judgments or decrees directly passing upon the validity of a state statute * * The test is the effect of the decree of the trial court. The effect of the decree with respect to the pertinent inquiry under the Constitution must be determined by this Court. This is the plain requirement of the Constitution and any other construction would lead to a strange situation indeed. It was never intended that a trial court could alter the effect of a final judgment or decree with respect to this jurisdictional question merely by a statement that he did or did not directly pass on the validity of a pertinent statute. A certificate from the trial court to the effect that the trial judge did not in this case pass upon the validity of the statute would not in any respect alter my views that this was the direct effect of his decree. How it could possibly do so escapes me.

The Bar of the State should not be faced with the constant dilemma of trying to determine which of the appellate courts has jurisdiction to review a judgment or decree of this nature. Each litigant has the constitutional right to invoke this Court’s jurisdiction “as a matter of right” when a trial court passes on the validity of a state statute either affirmatively or negatively; that is to say, when the inquiry in the litigation is pertinent and he rules that it is either valid or invalid.

I, therefore, respectfully dissent and would dispose of this case forthwith on the merits.

ROBERTS, C. J., and HOBSON (Ret.), J., concur. 
      
      . 11 Am.Jur. 753, Const.Law, See. 111, citing Bandini Petroleum Co. v. Superior Ct., 284 U.S. 8, 52 S.Ct. 103, 76 L.Ed. 136, 78 A.L.R. 826; White v. Johnson, 282 U.S. 367, 51 S.Ct. 115, 75 L.Ed. 388; People ex rel. Rusch v. White, 334 Ill. 465, 166 N.E. 100, 64 A.L.R. 1006; Boyd v. Johnson, 212 Iowa 1201, 238 N.W. 61; State ex rel. Linde v. Packard, 35 N.D. 298, 160 N.W. 150, L.R.A.1917B, 710; Insurance Co. of North America v. Welch, 49 Okl. 620, 154 P. 48, Ann.Cas.1918E, 471; Knowle’s Estate, 295 Pa. 571, 145 A. 797, 63 A.L.R. 1086; State v. Heffernan. 40 R.I. 121, 100 A. 55, citing R.C.L.; St. Louis South Western R. Co. v. State, 113 Tex. 570, 261 S.W. 996, 33 A.L.R. 367. Accord State ex rel. Crim v. Juvenal (1935), 118 Fla. 487, 159 So. 663.
     
      
      . Florida cases collected 6 Fla.Jur. 330, Const.Law Sec. 72.
     
      
      . Cooley, Const.Limitations, 2nd ed., Vol. 1, 366, 383.
     
      
      . The principle that rulings on constitutional issues will be made or implied only when truly essential, or when the cause cannot be properly disposed of on any other theory, would bolster this interpretation of the trial court ruling considered in the Stein case. Restriction of the issues in the case in this Court was also fully justified by their premature status in litigation still pending below.
     
      
      . In State v. Bruno, Fla.1958, 104 So.2d 588, there was a motion to quash an information on five grounds, only one of which asserted the unconstitutionality of a pertinent statute. The trial court sustained the motion to quash but gave no reasons for doing so. Under these circumstances, it could not be determined whether the trial court had directly passed upon the validity of the questioned statute. This Court commented upon the firmly imbedded principle that a court should not pass upon the validity of a statute if the case could be determined on any other grounds and then stated: “This leads to the conclusion that we cannot and must not assume that the trial court in this case directly passed upon the validity of [the questioned statute].” Under such circumstances this Court then ordered the case returned to the trial court “for the sole and only purpose of having the trial court enter an order setting forth therein the grounds upon which it granted the motion to quash the information.”
     
      
      .In Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, Fla. 1959, 111 So.2d 439, this Court said: “this fact [that the trial court did not expressly rule on the validity of the act] does not alter the effect of the decree as a negative disposition of all pertinent questions properly raised.” To the same effect see Evans v. Carroll, Fla.1958, 104 So.2d 375.
     