State Ex Rel. Arthur Kudner, Inc. v. Lee , 150 Fla. 35 ( 1942 )

This case grows out of a contract between Arthur Kudner, Inc., and a New York company for lithographing some booklets to be used for advertising citrus fruits. The question raised turns on whether or not the booklets were "printing" as contemplated by Chapter 14824, Acts of 1931. The majority opinion answers this question in the affirmative which requires that such contracts be let to firms within the State.

I do not think this conclusion is warranted by reason, law, or morals. Chapter 14824, Acts of 1931, is limited in application to certain printing contracts. The Florida Citrus Commission was created and its powers defined by Chapter 16854, Acts of 1935, and amendatory Acts and provides a complete scheme for inspecting, marketing, and advertising citrus fruits. As to advertising them, the Act lays no restriction on the Commission except to require that it be done through an advertising agency within the State. Arthur Kudner, Inc., is such an agency and contracted for the booklets in question to be lithographed in New York with the view of circularizing the markets with them. It is contended that this contract violates Chapter 14824, Acts of 1931.

On the facts, an examination of the booklets shows them to be composed of illustrated recipes for the use of citrus fruits. It also shows that approximately fifty per cent of their contents is lithographed and as to the balance, there is a question as to whether it should be construed as lithographing or printing. Actually the record discloses that the entire booklet was lithographed but on this point, if there had been reason for doubt, the Florida Citrus Commission settled the question and its judgment should prevail. It certainly should not be set at naught by the mere fiat of the Comptroller who has produced nothing to overcome the ruling of the Commission as required by Clark Printing and Binding Company v. Lee,117 Fla. 779, 158 So. 461, 121 Fla. 320, 163 So. 702.

The Florida Citrus Commission approved the contract and considered the booklets advertising material to be used as directed in the Act. Advertising the sale and use of citrus fruits was vested exclusively in the Commission and they saw fit to do it by means of these booklets. If so much space had been taken in the Saturday Evening Post, the Ladies Home Journal, or some other publication to spread the benefits to be derived from more general use of citrus fruits, no question could have properly been raised as to the legality of the claim. The Citrus Commission evidently proceeded on the theory that the preparation and circularization of the booklets constituted "advertising" and I don't think they should be held in error for doing so.

On the ground of reason, there is not the semblance of a basis to extend the application of Chapter 14824, Acts of 1931, to the contract in question. Growing citrus fruits is one of Florida's chief businesses and like the tourist business, the winter vegetable business, the fish business, and every other business that brings business to the people of the State, depends on outside patronage for its support. If no one used citrus fruits but Florida people, the citrus business would not be catalogued as one of our chief businesses. Neither would the tourist business or the winter vegetable business.

It is quite as important to encourage New York printers to buy Florida oranges as it is to encourage Florida printers to buy them but if it is to be the policy of this State to deliberately preclude the former from a chance at a contract like that in question, it is contrary to all human experience to say that they won't buy oranges from Texas, California, or even Palestine. If the use of citrus fruits is going to be increased, it will be done through the good neighbor policy; it will never be done through a "gimme" policy. I think the Legislature was conscious of this and intended Chapter 16854, Acts of 1935, to be all inclusive. I find no basis whatever to hamstring it by implication as proposed in the majority opinion.

Chapter 14824, Acts of 1931, has no place in a world committed to the good neighbor policy. It should under no circumstances be extended to doubtful cases. It is about as congenial to the good neighbor policy as a brace of tom cats would be to each other if thrown over the clothes line with their tails tied together. In fact the Florida orange grower of the good neighbor era arises in the morning to the chant of Old Domineck who was imported from Missouri as a day old chick, he dons a shirt made in New Jersey, slips into a pair of overalls made in North Carolina of Alabama cotton, and a pair of shoes made in St. Louis from the hide of a Texas steer; he turns on his radio made in New York and listens to a Columbia announcer tell the world how his own boys are saluting Japs in Java with machine guns and how his neighbor's boys are saluting the Feuhrer from Iceland with bombing planes. If the price of oranges is looking up, his wife greets him at dinner with a Kansas City steak broiled in a Pittsburg skillet, flanked with Georgia grits lubricated with ham gravy from an Iowa pig, tapered off with a cut of apple pie made of Virginia apples embroidered with Wisconsin cheese and a cup of coffee from Brazil, sweetened with Cuban sugar and stirred with a silver spoon from Nevada. He drives to work in an automobile made in Detroit, cultivates his grove with a Chicago plow, hauls his oranges in a Michigan truck empowered by Oklahoma gas, and hopes that people from everywhere even California, will drink his orange juice. He sleeps on a Grand Rapids bed, sits on a High Point chair, cooks on a General Electric stove, and gets his religion and code of morals from the Bible that came from Egypt, Babylon, and Israel and is governed by the Common Law of England after being tinctured with the civil law from Rome; in fine, he patronizes the four points of the compass and is such an embodiment of the good neighbor philosophy that the cackle of his hens is about the only homespun product on the grove.

How it can be said that he smacks of the isolationist or cannot prepare a dodger outside the State to proclaim the virtues and vitamins in orange juice is beyond me when in the very nature of the industry, it must have outside patronage to survive. Chapter 14824, Acts of 1931, erects a trade barrier that should not be extended to the citrus business by implication. Such barriers are becoming very embarrassing to interstate and intersectional relations, each state may retaliate in kind, they engender local hatreds, they react badly on the general welfare and are out of harmony with the spirit of our democracy.

On the morals of the issue, it is sufficient to say that the contract for the booklets was made and executed in good faith, the Citrus Commission used them to advertise Florida citrus fruits, the citrus industry got the benefit of the advertising, and as a matter of common honesty, the bill should be paid.

I therefore dissent.