State, Ex Rel. v. Gerrell , 137 Fla. 324 ( 1938 )

In our opinion filed December 1, 1938, we upheld Section Four of Chapter 18096, Acts of 1937, relating to the hours in which auction sales could be conducted but we held invalid all other provisions of this Act.

It is contended that since Section Eight exempting all merchants from the provisions of the Act who have been in business for more than five years was held bad, to uphold Section Four prohibiting auction sales after six o'clock P.M. and before eight o'clock A.M. would produce a situation never intended by the legislature and that such being the case, Section Four should now be held bad, making the entire Act invalid.

A majority of the Court agree to this contention which finds support in our decisions. State v. Patterson, 50 Fla. 127,39 So. 398; Ex Parte Smith, 100 Fla. 1, 128 So. 864. It follows that on rehearing, Section Four is held invalid but in all other respects our opinion of December 1st is reaffirmed. In other words, the entire Act is now held bad.

It is so ordered.

WHITFIELD, BROWN, BUFORD, CHAPMAN and THOMAS, J.J., concur.