
    Doyle CONNER, As Commissioner of Agriculture of the State of Florida, Appellant, v. A. J. SULLIVAN, Appellee.
    No. E-38.
    District Court of Appeal of Florida. First District.
    July 25, 1963.
    On Rehearing Oct. 22, 1963.
    Richard W. Ervin, Atty. Gen., Joseph C. Jacobs, Asst. Atty. Gen., J. Ernest Webb, Tallahassee, Maguire, Voorhis & Wells, Orlando, for 'appellant.
    Ervin, Pennington & Varn, Tallahassee, for appellee.
   CARROLL, DONALD K., Judge.

The Commissioner of Agriculture of the State of Florida has appealed from an adverse declaratory decree entered by the Circuit Court for Leon County determining the status of the appellee as a celery producer under a marketing statute and rules promulgated pursuant thereto.

The main purposes of Chapter 573, Florida Statutes, F.S.A., known as “the Florida celery and sweet corn marketing law,” are to enable celery and sweet corn producers of this state, with the aid of the state, to correlate more effectively the marketing of their agricultural commodities, with market demands therefor; and to eliminate or reduce economic waste in the marketing of celery and sweet corn grown in Florida. Section 573.03. The term “producer” is defined in Section 573.04 as meaning “any person engaged within this state in a proprietary capacity in the business of producing, or causing to be producer, any celery or sweet corn for market.”

Among the duties and powers of the Commissioner of Agriculture, as provided in Section 573.22, are the duty to administer and enforce the provisions of this law, and the power, upon the recommendation of the advisory committee concerned, to establish certain administrative rules and regulations as may be necessary to facilitate the administration and enforcement of marketing orders and agreements, as well as the power, consistent with the provisions of Chapter 573, to issue and make effective seasonal marketing regulations.

Section 573.14 provides for advisory committees to assist the Commissioner in the administration of any marketing order.

In apparent conformity with his statutory authority the Commissioner on July 17, 1961, promulgated Marketing Order No. 2 for Florida celery, defining a “producer” as “any person engaged, during the 1960-61 season, within the production area in a proprietary capacity in the business of producing, or causing celery to be produced for market.” The marketing order further provides: “The base quantity for each producer shall be the average of the number of crates of celery he shipped in the two seasons of his highest production during the three seasons 1958-59, 1959-60 and 1960-61.”

The appellee-plaintiff, A. J. Sullivan, had been a producer of celery for many years, producing and marketing a substantial crop in each season from 1950-51 to and through 1959-60. Because of financial difficulties, however, he was unable to produce a crop of celery during either of the seasons 1960-61 or 1961-62. Subsequently he rehabilitated himself financially so that he was enabled to produce on leased land a substantial crop of celery for the 1962-63 season. He also has some $35,000 to $40,000 worth of farming equipment, much of which is peculiarly suited to the growing of celery. In the seasons of 1950-51 to 1959-60 Sullivan grew and shipped between 161,821 and 334,679 crates of celery in each season. In the last seasons of his production, he grew and shipped celery as follows: 1957-58— 321,260 crates, 1958-59 — 291,434, and 1959-60 — 168,372.

On May 12, 1962, Sullivan applied to the Florida Celery Advisory Committee, created by the said marketing order, for the establishment of a base quota of 250,000 crates, but the committee classified Sullivan as a “new producer” instead of a “producer” and established for him a base quota of 45,439. A rehearing was denied and the Commissioner, to whom Sullivan appealed, affirmed the said limited quota.

Sullivan then filed a complaint in the said Circuit Court seeking, among other things, a declaration concerning his rights under Chapter 573 and the said marketing order. Upon final hearing the court held that the classification of Sullivan as a “new producer” was unreasonable and that he was entitled to be classified as a “producer” and accorded a permanent base quantity of the average of his production during the 1958— 59 and 1959-60 seasons.

Part of the court’s “ratio decidendi” in reaching this conclusion was thus expressed n its findings of fact and law:

“If a three year period is to be the representative period of time for determining the amount of allotment to each producer, there is no good reason why the same period of time should not he used in determining those who are producers and, therefore, entitled to allotments. The record shows that two parties granted allotments had not produced during the full three year period —produced only in 1960-61 and one produced only in 1959-60 and 1960-61. The record shows that the original base quantity allotted to at least ten producers was higher than their production during the 1960-61 season.
“It is the opinion of the Court that the statute contemplates that the Commissioner shall fix a reasonable period of time as the ‘representative period’ to be used in making allotments to producers ; that the Commissioner has exercised his discretion in fixing the period of time specified in the marketing order for this purpose; that the Commissioner does not have authority under the statute to establish one period of time as the ‘representative period’ for fixing the amount of allotments and then use an entirely different period of time as that to be considered in determining who is entitled to receive allotments.”

The unreasonableness of the said marketing order’s definition of “producer” as a person engaged during the 1960-61 season in the business of producing celery for market, is clearly apparent from comparing the status of Sullivan with that of persons who meet the requirements for classification as producers. While this is an extreme example, a person who produced for market but one crate of celery during the 1960-61 season would qualify as a producer, while Sullivan, who had produced and marketed celery in Florida since 1939, and through the 1959-60 season, producing large numbers of crates during the later years, would be and was classified as a “new producer” simply because he did not happen to produce celery in the 1960-61 season.

Despite many inroads during recent years on the people’s economic freedoms throughout the country on both state and federal levels, the principle still stands that the exercise of the police power cannot extend beyond reasonable interferences with the liberty of action of individuals as are-really necessary to preserve and protect the public health and welfare. See Florida Citrus Commission v. Golden Gift, Inc., 91 So.2d 657 (Fla.1956), Eelbeck Milling Co. v. Mayo, 86 So.2d 438 (Fla.1956), Larson v. Lesser, 106 So.2d 188 (Fla.1958), and State v. Leone, 118 So.2d 781 (Fla.1960).

We concur with the Circuit Court’s conclusion that the subject marketing order is unreasonable in its application to Sullivan, but we think that the court exceeded its authority in holding that Sullivan is a producer. While that may well be a logical conclusion, still the legislature vested' in the Commissioner the power to make rules and regulations to carry out the purposes of the celery and sweet corn marketing law. The courts should not exercise that power even when the person entrusted with that power by the legislature has made an unreasonable regulation. We think that the more appropriate procedure is to refer the matter back to the Commissioner so that he may revise the marketing order in such a way as to make it reasonable in its application to Sullivan.

We reverse that part of the final decree appealed from declaring Sullivan to be a producer, and otherwise affirm the decree. The cause is remanded for further proceedings consistent with the views herein set forth.

Affirmed in part and reversed in part, and. remanded with directions.

'STURGIS, C. J., concurs.

RAWLS, J., concurs in part and dissents in part.

RAWLS, Judge

(concurring in part and ■dissenting in part).

I am in accord with that part of the majority’s opinion which holds that the subject ■marketing order is unreasonable in its ■application to Sullivan. However, I cannot ■agree to that part of the opinion which liolds that Sullivan is not a producer.

It is significant that Sullivan did not press his challenge to the entire marketing ■order as exceeding the authority granted by statute nor his challenge to the constitutionality of the statute. As the chancellor astutely noted, Sullivan was even eager “to forget the alleged constitutional invalidity ■of the statute if he can he one of the chosen few who come within the small class protected.”

Under the limited issues urged on appeal I am forced to agree with the chancellor. Section 573.04(5) defines “producer” as “any person engaged within this state in a •proprietary capacity in the business of producing, or causing to be produced, any ■celery * * * for market.” [Emphasis supplied.] This subsection was abrogated “by the marketing order definition to mean ■only those persons so engaged in the year 1960-61. The learned chancellor held that ■where the statutory definition is not sufficiently specific to be capable of practical application, the Commissioner, under his authority to promulgate rules and regulations necessary for the enforcement and regulation of the law, may supplement same provided the regulation is reasonable, not .arbitrary or discriminatory. The statutory -use of the past tense “engaged” indicated previous production of celery but was indefinite as to period of time and/therefore, subject to administrative regulation which is authorized by Section 573.22, Florida Statutes, F.S.A. The chancellor determined that the one season selected was arbitrary and unreasonable particularly in view of the fact that for the purpose of fixing quotas for producers, the Commissioner was authorized to determine a “representative” period of time, and in doing so set “the two seasons of his highest production during the three seasons 1958-59, 1959-60 and 1960-61.” The chancellor then reasoned, “If’ a three year period is to be the representative period of time for determining the amount of allotment to each producer, there is no good reason why the same period of time should not be used in determining those who are producers and, therefore, entitled to allotments.”

The majority opinion concludes that the chancellor erred in holding that Stdlivan is a producer, but that the Commissioner should revise his marketing order in such a way as to make it reasonable in its application to Sullivan. Under the marketing order as promulgated, Sullivan is either a “producer” or a “new producer.” If the Commissioner’s order under which it was found that Sullivan was a new producer is unreasonable and arbitrary in its application to him, then it must be that the Commissioner was erroneous in defining a producer. Seemingly, the majority opinion is directing the Commissioner to define Sullivan as half producer and half new producer, or promulgate some other form of order. This, in my opinion, constitutes a promulgation of a new marketing order by the court.

Assuming that the marketing order is otherwise valid, I agree with the chancellor in his conclusion that if the three year period is a “representative” period of time for purposes of determining quotas for producers, something less than a representative period would be arbitrary and discriminatory in determining who are producers.

I would affirm.

ON REHEARING

CARROLL, DONALD K., Justice.

Both the appellant and appellee have timely filed petitions seeking our rehearing and reconsideration of the opinion and judgment which we entered in this appeal on July 25, 1963. Accordingly, we granted these petitions and set them down for oral argument of counsel for both parties.

We have carefully reconsidered our said opinion and judgment in the light of the contentions made and authorities cited in the said petitions and oral argument, and have decided to adhere to the said opinion and judgment except in one particular strongly stressed by the appellee in his petition for rehearing.

In this petition the appellee contends that, in holding that the chancellor correctly ruled that the marketing order involved was unreasonable but that he exceeded his authority in declaring that the appel-lee is a “producer”, we overlooked the powers granted to circuit courts in the Florida Declaratory Judgments Act. In the perspective that comes in the consideration of petitions for rehearing, we are now of the opinion that we somehow overlooked the effect of that statute.

Section 87.01, Florida Statutes, F.S.A., provides, among other things, that the circuit courts of this state shall have the authority, original jurisdiction, and power, upon a filed complaint, “to declare rights, status and other equitable or legal relations * * More specifically, Section 87.02 provides that such a declaration may be obtained by any person “whose rights, status or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority * *

In the case before us the appellee sought the declaration of the Circuit Court that he was a “producer” under the celery and sweet corn marketing law, and that court so declared. Such a declaration, we now think, is dearly within the court’s authority under the Declaratory Judgments Act.

Consequently, our opinion and judgment filed herein on July 25, 1963, are adhered to, except that the last three paragraphs thereof (beginning “We concur with the Circuit Court’s conclusion * * *.”) are withdrawn and set aside; and the following substituted in lieu thereof:

“We conclude that the Circuit Court correctly ruled that the subject marketing order is unreasonable in its application to Sullivan and that he is a producer within the meaning of the celery and sweet corn marketing law. The final decree appealed from, therefore, must be and it is
“Affirmed.”

STURGIS, C. J., and RAWLS, J., concur. 
      
      . The Marketing Order provides: “The base quantity for each producer shall be the average of the number of crates of celery he shipped in the two seasons of his highest production during the three seasons 1958-59, 1959-60 and 1960-61.”
     