I think that the act of the Legislature under consideration in these proceedings and particularly Section 1 Chapter 14485 Laws 1929 is invalid, not only because considered as a criminal statute its operation is made to depend upon the non-action of the Federal Government or the State Plant Board when either agency *Page 579 may deem it inopportune to begin operations to destroy the "Mediterranean fruit fly", but because the use of arsenical sprays is forbidden upon any citrus groves or trees.

"Bearing citrus trees" is a term which may include not only trees which produce citrus fruits that are actually in fruit as well as those which may come into fruit although not yet in bloom, but it embraces many species of fruits varying in shape, flavor, color and the uses to which they may be applied. The orange, lemon, lime, grapefruit, kumquat, pompelmous, shaddock, bergamot, citron and many other such fruits, embracing more than a hundred varieties, are citrus fruits and produced upon trees that come within the class designated by the statute. Many of these varieties, indigenous to tropical and semi-tropical climates or exotic, are produced or may be produced in this State. Some species of the citrus fruits the pulp and juice only are used while in others the rind only is used and is edible either as preserves or in the natural state, while the juice of others is used only for flavoring. The statute applies alike to all of them. The statute is not a health measure but is admittedly a regulatory measure designed to protect not the citrus fruit industry as it may be affected by marketing conditions but the industry as it relates only to oranges and possibly a limited variety of that fruit. As to grapefruit it is not apparent from the record that such fruit is affected in any appreciable degree from the use of arsenical sprays upon the trees at any time or in any quantity, nor is it shown by evidence nor is it a matter of judicial notice that the use of arsenical sprays upon lemon, lime. kumquat or citron trees in any quantity affects the marketability of the fruit or the quality of their content.

The act in question seems to have been enacted without any adequate knowledge of the effects of arsenical sprays upon many varieties of citrus fruits and in the apparently *Page 580 mistaken thought that its terms applied only to orange trees. That the terms of the act apply only to orange trees and possibly grapefruit trees but to no other variety or species of citrus fruit trees seems to be the thought which pervades the act but on what theory such loosely constructed statutes may find a valid place in the body of the criminal law of the State the learned discourse in the majority opinion does not make clear.

Assuming that the use of arsenical sprays at any time and in great quantity may affect the sugar content and color of the fruit and its juice it is by no means apparent nor is it a matter of judicial knowledge that such results would affect the marketability or sugar content or flavor of hundreds of varieties of citrus fruits. Yet the owner of a grove of lime, lemon, or citrus trees or perhaps grapefruit trees who used an arsenical spray upon his trees would transgress the law.

I think the act is vague, indefinite and not capable of enforcement because its terms are inclusive of a great variety of citrus fruits to which there could not be any reasonable application of the act.