text:
    ASKEW, Reubin O’D., et al., Appellants, v. GAME AND FRESH WATER FISH COMMISSION of the State of Florida, etc., et al., Appellees.
    No. 46583.
    Supreme Court of Florida.
    April 21, 1976.
    Rehearing Denied June 11, 1976.
    Robert L. Shevin, Atty. Gen., and Charles R. Ranson, Asst. Atty. Gen., for appellants.
    James F. McKenzie and D. L. Middle-brooks of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellees.
   BOYD, Justice.

In this proceeding we are reviewing by direct appeal an order from the Circuit Court of Leon County, Second Judicial Circuit of Florida, which initially and directly passed on the validity of several state statutes and construed a provision of the state Constitution. We have jurisdiction.

The cause arose when The Bream Fisherman’s Association sought to enjoin the Department of Natural Resources, State of Florida, from introducing a species of fish, the White Amur, into the waters of Deer Point Lake in Bay County. The Department acted under Sections 372.26, 372.-925, Florida Statutes (1973), and Section 372.931, as amended by Chapter 74-65, Laws of Florida, which collectively permit the Department to control aquatic weeds in Florida by means of introducing' fish into Florida waters without obtaining a permit from the Game and Fresh Water Fish Commission. The Commission, too, brought suit for a permanent injunction against the Department and the case was consolidated with the Association’s case.

As it existed on November 26, 1974, Article IV, Section 9 of the Florida Constitution stated:

“§ 9. Game and fresh water fish commission. There shall be a game and fresh water fish commission, composed of five members appointed by the governor for staggered terms of five years. The commission shall exercise the nonjudicial powers of the state with respect to wild animal life and fresh water aquatic life, except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the commission shall be prescribed by specific statute.”

The order of the Circuit Court construed the above constitutional provision to find the following unconstitutional: the exemption sentence of Section 372.26; Section 372.925 as it applies to fresh water aquatic life; and Section 372.931 as amended by Chapter 74-65, Laws of Florida, on its face.

We agree with the Circuit Court that, standing alone, the former Article IV, Section 9 of the Florida Constitution would require that the challenged statutes be held unconstitutional. However, there is another provision of the Constitution, not mentioned in the order of the Circuit Court, which must be considered. Article II, Section 7, Florida Constitution, states:

“§ 7. Natural resources and scenic beauty. It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise.”

In construing the Constitution every section should be considered so that the Constitution will be given effect as a harmonious whole. A construction which would leave without effect any part of the Constitution should be rejected. State v. Bryan, 50 Fla. 293, 39 So. 929 (Fla.1905). Were we to hold the challenged statutes unconstitutional the Legislature would be stripped of its power in many instances to carry out the policy of abatement of water pollution, as embodied in Article II, Section 7. Consequently we construe former Article IV, Section 9 and Article II, Section 7 together to hold the challenged statutes to be constitutional.

The order of the Circuit Court is reversed and the cause remanded for proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and ADKINS, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., concurs in result only.

      . Article V, Section 3(b)(1), Florida Constitution.

      . Imported fish. No person shall import into the state or place in any of the fresh waters of the state any fresh water fish of any species without having first obtained a permit from the game and fresh water fish commission. This restriction shall not apply to the department of natural resources, acting under authority of § 372.925(4).

      . Florida aquatic weed control act.

      (1) This act shall be known as the Florida aquatic weed control act.
      (2) The department of natural resources is vested with the authority to direct the control, eradication, and regulation of noxious aquatic weeds and the research and planning related to said activities, as provided by law, so as to protect human health, safety, and recreation and, to the greatest degree practicable, prevent injury to plant and animal life and property.
      (3) It shall be the duty of the department to guide and coordinate the activities of all public bodies, authorities, agencies, and special districts charged with the control or eradication of aquatic weeds and plants. It may delegate all or part of such functions to the division of game and fresh water fish.
      (4) The department shall also promote, develop, and support research activities directed toward the more effective and efficient control of aquatic plants. In the furtherance of this purpose, the division is authorized to:
      (a) Accept donations and grants of funds and services from both public and private sources;
      (b) Contract or enter into agreements with public or private agencies or corporations for research and development of aquatic plant control methods or for the performance of aquatic plant control activities;
      (c) Construct, acquire, operate, and maintain facilities and equipment; and
      (d) Enter upon, or authorize the entry upon, private property for purposes of making surveys and examinations and to engage in aquatic plant control activities, and such entry shall not be deemed a trespass.
      (5) The department of natural resources may disburse funds to any special district or other local authority charged with the responsibility of controlling or eradicating aquatic plants, upon:
      (a) Receipt of satisfactory proof that such district or authority has sufficient funds on hand to match the estate funds herein referred to on an equal basis ;
      (b) Appoval by the department of the control techniques to be used by the district or authority ; and
      (c) Review and approval of the program of the district or authority by the department to be in conformance with the state control plan.

      .Presently Section 372.932, Florida Statutes (1975) Nonindigenous aquatic plant control. — •
      (1) This section shall be known as the “Florida nonindigenous aquatic plant control act.”
      (2) For the purpose of this section, the following words and phrases shall have the following meanings:
      (a) “Department” means the department of natural resources.
      (b) “Aquatic plant” is any plant growing in, or closely associated with, the aquatic environment and includes “floating”, “em-ersed”, “submersed” and “ditch bank” species.
      (c) “Nonindigenous aquatic plant” is any aquatic plant that is nonnative to the state of Florida and has certain characteristics, such as massive productivity, choking density, or an obstructive nature, which render it detrimental, obnoxious, or unwanted in a particular location.
      (d) A “maintenance program” is a method for the control of nonindigenous aquatic plants in which control techniques are utilized in a coordinated manner on a continuous basis in order to maintain the plant population at the lowest feasible level as determined by the department.
      (e) An “eradication program” is a method for the control of nonindigenous aquatic plants in which control techniques are utilized in a coordinated manner in an attempt to kill all the aquatic plants on a permanent basis in a given geographical area.
      (f) A “complaint spray program” is a method for the control of nonindigenous aquatic plants in which weeds are allowed to grow unhindered to a given level of undesirability, at which point eradication techniques are applied in an effort to restore the area in question to a relatively low level of infestation.
      (g) “Waters” means rivers, streams, lakes, navigable waters and associated tributaries, canals, meandered lakes, enclosed water systems, and any other bodies of water.
      (h) “Intercounty waters” means any waters which lie in more than one county or form any part of the boundary between two or more counties, as determined by the department.
      (i) “Intracounty waters” means any waters which lie wholly within the boundaries of one county as determined by the department.
      (j) “Districts” means the six (6) water management districts created by law and named, respectively, the Northwest Florida Water Management District, the Suwannee River Water Management District, the St. Johns River Water Management District, the Southwest Florida Water Management District, the Central and Southern Florida Flood Control District, and the Ridge and and Lower Gulf Coast Water Management District; and on July 1, 1975, shall mean the five (5) water management districts created by Chapter 73-190, Laws of Florida, and named, respectively, the Northwest Florida Water Management District, the Suwan-nee River Water Management District, the St. Johns River Water Management District, the Southwest Florida Water Management District, and the South Florida Water Management District.
      (3)The Legislature recognizes that the uncontrolled growth of nonindigenous aquatic plants in the waters of Florida poses a variety of environmental, health, safety, and economic problems. The legislature acknowledges the responsibility of the state to cope with the uncontrolled and seemingly never ending growth of nonindigenous aquatic plants in the waters throughout Florida. It is, therefore,' the intent of the legislature that the state policy for the control of nonindigenous ac-quatic plants in waters of state responsibility are to be carried out under the general supervision and control of the department of natural resources, and that the state itself shall be responsible for the control of said plants in all intercounty waters but that control of said plants in intracounty waters be the designated responsibility of the appropriate unit of local or county government, special district, authority, or other public body. It is the intent of the legislature that the control of nonindigenous aquatic plants be carried out primarily by means of maintenance programs, rather than eradication or complaint spray programs, for the purpose of achieving more effective control at a lower long-range cost. It is also the intent of the legislature that the department shall guide, review, approve, and coordinate all nonindigenous aquatic plant control programs within each of the water management districts as defined in subsection (2) (j). It is the intent of the legislature to account for the costs of nonindigenous acquatic plant maintenance programs by watershed for comparison management purposes.
      (4) The department of natural resources is vested with the authority to supervise and direct all maintenance programs of control of nonindigenous aquatic plants, as provided by law, so as to protect human health, safety, and recreation and, to the greatest degree practicable, prevent injury to plant, fish, and animal life and property.
      (5) Where state funds are involved, or where waters of state responsibility are involved, it shall be the duty of the department to guide, review, approve, and coordinate the activities of all public bodies, authorities, state agencies, units of local or county government, commissions, districts, and special districts engaged in operations to maintain, control, or eradicate nonindigenous aquatic plants. It may delegate all or part of such functions to any appropriate state agency, special district, unit of local or county government, commission, authority, or other public body. However, special attention be given to the keeping of accounting and cost data in order to prepare the annual fiscal report as required in subsection (7).
      (6) The department may disburse funds to any district, special district, or other local authority for the purpose of operating a maintenance program for controlling nonin-digenous aquatic plants and other noxious aquatic plans in the waters of state responsibility upon:
      (a) Receipt of satisfactory proof that such district or authority has sufficient funds on hand to match the state funds, herein referred to on an equal basis;
      (b) Approval by the department of the maintenance control techniques to be used by the district or authority; and
      (c) Review and approval of the program of the district or authority by the department to be in conformance with the state maintenance control plan.
      (7) The department shall submit a fiscal year report on the status of the nonindigenous aquatic plant maintenance program to the president of the senate, the speaker of the house of representatives and the governor and cabinet by January 1 of the following year. This report shall include a statement of the degree of maintenance control achieved by individual nonindigenous aquatic plant species in the intercounty waters of each of the water management districts for the preceding calendar year together with an analysis of the costs of achieving this degree of control. This cost accounting shall include the expenditures by all governmental agencies in the waters of state responsibility. If the level of maintenance control achieved falls short of that which is deemed adequate by the department, then the report shall include an estimate of the additional funding that would have been required to achieve this level of maintenance control. All measures of maintenance program achievement and the related cost shall be presented by water management districts so that comparisons may be made among the water managements districts, as well as with the state as a whole. (8) The department shall have the authority to cooperate with the United States and to enter into such cooperative agreements or commitments as the department may determine necessary to carry out the maintenance, control, or eradication of water hyacinths, alligator weed, and other noxious aquatic plant growths from the waters of the state and to enter into contracts with the United States obligating the state to indemnify and save harmless the said United States from any and all claims and liability arising out of the initiation and prosecution of any project undertaken under this section. However, any claim or claims required to be paid under this section shall be paid from money appropriated to the nonindigenous aquatic plant control program. (9) The department may delegate various nonindigenous aquatic plant control and maintenance functions to the game and fresh water fish commission. The commission shall, in accepting commitments to engage in nonindigenous aquatic plant control and maintenance activities, be subject to the rules and regulations of the department. In addition, the commission shall render technical and other assistance to the department in order to carry out most effectively the purposes of § 872.925. However, nothing herein shall diminish or impair the regulatory authority of the commission with respect to the powers granted to it by § 9, Article IV of the state constitution.
      (10)The department is hereby directed to use biological agents for the control of non-indigenous aquatic plants.

      . The date of the Circuit Court’s order. On November 5, 1974, by a resolution approved at a General Election, Article IV, Section 9 of the Florida Constitution was amended to take effect in January 1975: § 9. Game and fresh water fish commission. There shall be a game and fresh water fish commission, composed of five members appointed by the governor subject to confirmation by the senate for staggered terms of five years. The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the commission shall be prescribed by specific statute. The legislature may enact laws in aid of the commission, not inconsistent with this section. The commission’s exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law. Revenue derived from such license fees shall be appropriated to the commission by the legislature for the purpose of management, protection and conservation of wild animal life and fresh water aquatic life.


source: Caselaw Access Project

author: ENGLAND, Justice. ADKINS, C. J., and ROBERTS, J., ENGLAND, Justice

license: Public Domain

text:
    UNITED GAS PIPE LINE COMPANY, a Delaware Corporation, and Florida Gas Transmission Company, a Delaware Corporation, Appellants, v. William H. BEVIS, as Chairman, et al., Appellees.
    No. 46374.
    Supreme Court of Florida.
    Jan. 7, 1976.
    Rehearing Denied April 7, 1976.

      Patrick G. Emmanuel and Lawrence W. Oberhausen of Holsberry, Emmanuel, Sheppard, Mitchell & Condon, Pensacola, R. Y. Patterson, Jr., Winter Park, James D. Beasley, and D. Fred McMullen, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellants.
    Joseph A. McGlothlin, Tallahassee,'John W. McWhirter, Jr., of Cason, McWhirter, Henderson & Stokes, Tampa, Joseph C. Jacobs and Thomas M. Ervin, Jr., of Ervin, Varn, Jacobs & Odom, Tallahassee, John F. Healy and Richard Gray, Jr., Allentown, Pa., and Robert L. Shevin, Atty. Gen., and William R. Hanley, Asst. Atty. Gen., for appellees.
   ENGLAND, Justice.

This case is here on direct appeal from an order of the Leon County Circuit Court which upheld the constitutionality of Section 366.065, Florida Statutes (1973). We have jurisdiction pursuant to Article V, Section 3(b)(1) of the Florida Constitution.

Appellants own and operate interstate gas pipeline systems, selling natural gas to industrial customers and to certain resale distributors in Florida. Appellees Monsanto and Air Products purchase natural gas from appellant United pursuant to private, unregulated contracts. Sales to industrial customers in Florida are permitted only after certificates of public convenience and necessity have been obtained from the Federal Power Commission (“the FPC”). The price and terms of sales are not regulated to any extent, however, since federal law does not extend to direct industrial sales and the State of Florida, which could validly regulate these sales, has chosen to exempt them from the jurisdiction of the Public Service Commission (“the Commission”).

In 1973 the Florida Legislature enacted Chapter 73-289, Laws of Florida, to provide :

“In order to prevent discrimination or unreasonably high profits upon receipt of a consumer complaint alleging that;
(a) the consumer purchases energy from a company holding a certificate of public convenience and necessity from a state or federal agency authorizing it to sell energy; and
(b) the rates and charges of the company are either discriminatory or unreasonably high; and
(c) the energy product or an alternative energy product is not readily available to the consumer from a competitive supplier; and
(d) the price of energy sold by the company to the consumer is not regulated by a government agency:
the public service commission may assume jurisdiction to investigate the allegations and is authorized to exercise all of the powers and duties it is granted by law for the regulation of public utility rates and charges notwithstanding any exemptions or limitations otherwise placed upon the commission’s jurisdiction.”

Statutory revision personnel assigned this enactment (“the Act”) to Chapter 366 of the Florida Statutes, where it now appears as Section 366.065, Fla.Stat. (1973).

Pursuant to the Act, Monsanto, Air Products and another of United’s industrial customers filed complaints with the Commission in order to obtain approval for lower natural gas prices than are specified in their contracts with United. The Commission entertained the complaints despite appellants’ objections, and proceedings before the Commission are presently pending. To avert Commission action, United commenced this lawsuit in circuit court, seeking temporary injunctive relief against the Commission and a declaration that the Act is unconstitutional. Florida Gas Transmission Company intervened as a plaintiff in that suit, and Monsanto and Air Products intervened as defendants. The Attorney General of Florida was permitted to intervene in support of the validity of the statute. After initial pleadings framed the legal issues, and in the absence of any factual dispute, the circuit court granted defendants’ motion for a summary judgment and expressly upheld the validity of Section 366.065. This appeal followed.

Appellants make a number of constitutional assaults on the Act. They contend that the statute exceeds appropriate standards for the exercise of the police power of the State, that the absence of standards in the Act makes it an invalid delegation of legislative authority, that the title is defective, that it denies them equal protection of the law and deprives them of their property without due process of law, that it constitutes an impairment of their contracts, that it places an undue burden on interstate commerce, and that it conflicts with the federal Natural Gas Act in violation of the supremacy clause of the United States Constitution.

Notwithstanding that acts of the Legislature are presumptively valid, we agree with appellants that the statute is constitutionally defective.

Both sides agree that the Florida Legislature could repeal the exemption expressed in Section 366.02, Florida Statutes, and thereby extend the full jurisdiction of the Commission to direct industrial sales of natural gas by interstate pipe line transmission companies. Both sides also agree that the Legislature did not do that in this Act. Since the Legislature extended less than full regulatory authority to the Commission, the question for our resolution is whether this limited regulatory intrusion into an unregulated commercial activity is valid. At least three features of this intrusion compel our invalidation.

Our analysis of the Act persuades us that, no matter how beneficent the public purpose behind its enactment, the selective and unusual methodology for authorizing price-only regulation is an improper exercise of the state’s police power. Any statute enacted as an exercise of sovereign police power should, at a minimum, further a broad “public” interest.

“To be valid, [the police power] must apply to the general public as distinguished from a particular group or class.”

This Act has potential benefit for a limited class of natural gas users in Florida. Even that class is selectively protected, however, since the Act would require separate initiating complaints from every industrial user in Florida before its benefits could be extended to all of them. The public welfare for which the police power of the State has been invoked must be considered against the rights being affected by this considerable power.

A particularly invidious feature of the Act is its one-side operation. While individual customers of the appellants can invoke the jurisdiction of the Commission to reduce their contract rates for natural gas, the natural gas companies have no correlative right to seek Commission approval of higher contract rates, jurisdictional protection, or even enforced user continuance. The effect of this imbalance is the possibility that appellants could be ordered by the State’s regulatory agency to reduce gas charges, while being required by the federal regulatory agency to pay higher well-head prices and maintain contract deliveries. The State’s regulation of commercial enterprise is generally a bilateral bargain. The enterprise gives up an unlimited right to compete in the marketplace and relinquishes, among other business prerogatives, the freedom to set its own prices. In exchange, the State guarantees (among other things) at least an opportunity to earn a reasonable return on capital and a forum in which to seek price adjustments. Where the State attempts a limited form of regulation of existing commercial enterprises, it must give as much as it takes. The restrictive and one-sided application of the State’s action in this case operates to impair existing contracts.

We also agree with appellant’s contention that the title of the Act did not meet the mandate of our Constitution that the subject of all legislation “shall be briefly expressed in the title.” This provision assures adequate notice to legislators and to the public with respect to impending legislation. This Act contained insufficient warning that a statutory exemption contained in chapter 366 was being partially repealed. The title of Chapter 73-289 reads:

“An act relating to the Florida Public Service Commission authorizing it to assume jurisdiction over certain practices of companies selling energy, to prevent discrimination and unreasonable profits as a result of energy crises, and providing an effective date.”

It is apparent from the body of the Act that it cannot operate independently of the general regulatory authority conferred in Chapter 366, at least not without violating appellant’s right to due process of law in proceedings before the Commission. The title is also defective, therefore, because the Act’s dependency on other laws for effectiveness or for operation must give notice of that interrelationship.

The Legislature can validly regulate natural gas distributors as an exercise of the police power of the State if the public interest so requires, simply by repealing the exemption which now appears in Section 366.02, Florida Statutes (1973). It may not, however, authorize price ceilings through customer initiative while leaving all other aspects of the industry unregulated. The order of the circuit court is quashed, and this cause is remanded for entry of a summary judgment for appellants.

BOYD and OVERTON, JJ., concur.

SUNDBERG, J., and MOORE, Circuit Judge, concur in result only.

ADKINS, C. J., and ROBERTS, J.,

dissent.

On consideration of the Petitions for Rehearing filed by attorneys for appellees and replies thereto,

IT IS ORDERED that said petitions are denied.

OVERTON, C. J., BOYD and SUND-BERG, JJ., and MOORE, Circuit Judge, concur.

ENGLAND, J., concurs with opinion, with OVERTON, C. J., concurring.

ROBERTS and ADKINS, JJ., dissent.

ON REHEARING

ENGLAND, Justice

(concurring in denial).

I would deny rehearing in this case in the face of the multi-page, argumentative rehearing petitions which have been filed, for the reasons set forth in Texas Co. v. Davidson, 76 Fla. 475, 478, 80 So. 558, 559 (1918). See also Florida Appellate Rule 3.14(b), which states that a petition for rehearing shall be “without argument”.

Counsel for Monsanto (7 page petition), Air Products (14 page petition), and the Public Service Commission (4 page petition) have essentially reargued the entire case, prompting counsel for United Gas Pipe Line and Florida Gas Transmission to file brief-like replies of 15 and 18 pages, respectively. This expenditure of counsels’ time, and the clients’ money, is completely unjustified. This case had been argued, briefed and fully considered by the Court when the decision was initially rendered. It is not the office of rehearing to invite a complete re-analysis of all that has gone before. See State ex rel. Jaytex Realty Co. v. Green, 105 So.2d 817, 818-19 (1st DCA Fla.1958).

OVERTON, C. J., concurs.

      . Sales by appellants for resale are regulated by the Federal Power Commission and are not involved in this proceeding.

      . 15Ü.S.C. § 717f(c).

      . See Natural Gas Act, 15 U.S.C. § 717(b); Panhandle Eastern Pipe Line Co. v. Public Svc. Comm’n of Indiana, 332 U.S. 507, 68 S.Ct. 190, 92 L.Ed. 128 (1947).

      . Section 366.02, Fla.Stat. (1973).

      . Art. Ill, § 1, Fla.Const. (1968).

      . Art. Ill, § 6, Fla.Const. (1968).

      . Amend. XIV, § 1 U.S.Const.

      . Art. I, § 10, Fla.Const. (1968) ; Art. I, § 10, U.S.Const.

      . Art. I, § 8, U.S.Const.

      . Art. VI, U.S.Const.

      . Hunter v. Mowers, 43 So.2d 435 (Fla.1949).

      . Appellees contend that the Act has a public purpose even though a limited number of commercial enterprises may benefit from its provisions. They concede that this legislation is not directed to the general public, and that the Act carries no guarantee that ultimate consumers of industrial users -will benefit from price reductions ordered by the Commission. Although legislation is not necessarily invalid because it benefits only a limited group, the class of “public” affected by the Act is relevant when we are weighing an exercise of the State’s police power against the impingement of contract rights. Town of Bay Harbor Islands v. Schlapik, 57 So.2d 855 (Fla.1952).

      . Liquor Store, Inc. v. Continental Distilling Corp., 40 So.2d 371, 374 (Fla.1949).

      . Appellees admit that one company may complain and invoke the jurisdiction of the Commission under the Act in order to secure a reduced fuel charge, while a non-complaining neighboring industrial user under an identical contract with the same supplier would continue to pay a different and higher price.

      . Section 366.01, Fla.Stat. (1973), declares the regulation of public utilities to be “an exercise of the police power of the state for the protection of the public welfare”.

      . The Act does not redefine “public utility” to include natural gas transmission companies, which would bring them within the regulatory jurisdiction of the Commission for all purposes. It does not even open the Commission’s doors to these companies for rates and charges matters. Thus, they are barred from initiating a rate reduction proceeding to prevent unreasonably low rates if the evidence warrants such a finding.

      . The FPC sets well-head purchase prices and prohibits a suspension of service. 15 U. S.C. § 717f.

      . We have generally prohibited all forms of contract impairment. E. g., Yamaha Parts Distr. Inc. v. Ehrman, Fla., 316 So.2d 557 (1975); Fort Lauderdale v. State ex rel. Elston Bank & Tr. Co., 125 Fla. 89, 169 So. 584 (1936). The Legislature’s enactment here is really designed to offer a form of relief which is similar to that historically provided by courts of equity for unconscionable contracts. See 1 Corbin on Contracts § 128 (1963). In those situations, however, courts will invalidate the entire contract rather than reform any particular contract term. It follows, therefore, that a legislative exercise, let alone delegation, of the power to modify “discriminatory” or “unreasonable” contract terms is doubly defective, being an impermissible impairment of contracts and an invalid intrusion into the powers of the judiciary.

      . Art. Ill, § 6, Fla.Const. (1968).

      . Appellees defend the Aet from due process attacks by asserting that the processes and safeguards of normal regulatory proceedings, as developed throughout Chapter 366, are incorporated by reference and available to appellants in Section 366.065 proceedings.

      . Auto Owners Ins. Co. v. Hillsborough Cty. Aviation Auth., 153 So.2d 722 (Fla.1963); Lipe v. Miami, 141 So.2d 738, 742-743 (Fla.1962).


author: HATCHETT, Justice.

text:
    Thomas G. GARRETT and Willie Mae Garrett, husband and wife, Petitioners, v. MORRIS KIRSCHMAN AND COMPANY, INC., a corporation, and Continental Assurance Company, a corporation, Respondents.
    No. 47236.
    Supreme Court of Florida.
    June 9, 1976.
    Rehearing Denied Sept. 21, 1976.

      Lefferts L. Mabie, Jr., of Levin, War-field, Middlebrooks, Graff, Mabie, Rosen-bloum & Magie, Pensacola, for petitioners.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for respondents.
   HATCHETT, Justice.

Petitioners were the plaintiffs in an action brought against respondents on account of an automobile accident in which Mr. Garrett was injured. Mrs. Garrett sought compensation for loss of “the services, society and consortium of her husband” (R 2) attributable to the accident. Because liability was conceded, the jury had only the question of damages to resolve. At the trial, petitioners’ counsel undertook to prove, inter alia, the extent of medical expenses incurred in consequence of the accident, and diminution of Mr. Garrett’s income as a result of his injuries. Judgment was entered in favor of each petitioner.

On appeal to the District Court of Appeal, First District, that court “remanded for a new trial on the issue of damages,” Morris Kirschman & Co. v. Garrett, 308 So.2d 575 (1975), with one judge concurring specially in the judgment. The majority concluded that copies of income tax forms which had been filled out by Mr. Garrett’s employer, should not have been used to refresh Mr. Garrett’s recollection, and should not have come into evidence. In addition, the District Court concluded that the burden of proving the necessity and reasonableness of Mr. Garrett’s medical expenses was not met. We granted certiorari on the basis of conflict between the District Court’s decision in this case and other Florida appellate decisions, among which are United Sand & Material Corp. v. Florida Indus. Com’n, 201 So.2d 451 (Fla.1967); Shaw v. Puleo, 159 So.2d 641 (Fla.1964); Lindberg v. State, 134 Fla. 786, 184 So. 662 (1938); Atlanta & St. A. B. Ry. Co. v. Ewing, 112 Fla. 483, 150 So. 586 (1933); Volusia County Bank v. Bigelow, 45 Fla. 638, 33 So. 704 (1903); Jenkins v. State, 31 Fla. 196, 12 So. 677 (1893); King v. Califano, 183 So.2d 719 (Fla.App. 1st, 1966); Lobree v. Caporossi, 139 So.2d 510 (Fla.App. 2nd, 1962); and Chaudoin v. State, 118 So.2d 569 (Fla.App. 2nd, 1960).

We agree with the District Court that the portion of the judgment based on the verdict in favor of Mr. Garrett must be reversed because of the admission into evidence, over objection on hearsay grounds, of copies of Mr. Garrett’s employer’s tax returns. There was no requirement to lay any predicate, however, for the use of those documents to revive present recollection. Before the papers were offered into evidence, plaintiffs’ counsel furnished them to Mr. Garrett while he was on the witness stand:

By Mr. Mabie:
Q. Would you tell us what your— first of all let me hand you this and ■ask you if this is a copy of your form 1099s, your United States Information Return for the calendar years nineteen seventy, and nineteen seventy-one, and nineteen seventy-two showing what your total income was for each of those respective years from ABC Auto Sales?
A. Yes, sir.
Q. And what was your income in nineteen seventy, the year before the accident ?
MR. GAINES: We object to that on this record, Your Honor, on the grounds that this is a self serving declaration which he filed with the United States Government, and if he is going to testify from the records, it should be the original records.
THE COURT: Objection overruled.
A. In nineteen seventy I made sixteen thousand two hundred and sixty-two dollars and seventy cents.
MR. MABIE:
Q. And what in nineteen seventy-one?
MR. GAINES: Same objection, Your Honor.
THE COURT: Objection overruled.
A. Seven thousand nine zero one forty-eight.
MR. MABIE:
Q. And what was your income in nineteen seventy-two?
MR. GAINES: Same objection, Your Honor.
THE COURT: Overruled.
A. Six thousand six hundred and thirty-six dollars and forty-three cents.

Assuming for purposes of decision that the witness testified from present recollection, the trial court correctly overruled defense counsel’s objection. The use of copies of tax returns to stimulate and revive an independent recollection has been specifically approved by other courts, Freehill v. DeWitt County Service Co., 125 Ill.App.2d 306, 261 N.E.2d 52 (1970); J. A. Robinson Sons, Inc. v. Wigart, 420 S.W.2d 474 (Tex.Civ.App.1967), and is fully consistent with the general rules governing the revival of a recollection. See 3 Wigmore on Evidence § 758 et seq. (1970); Maguire & Quick, Testimony: Memory and Memo-randa, 3 How.L.J. 1 (1957). In requiring “a foundation” for such use, the District Court stated a rule contrary to the law of Florida as laid down in United Sand & Material Corp. v. Florida Indus. Com’n, supra; Atlanta & St. A. B. Ry. Co. v. Ewing, supra; Jenkins v. State, supra; King v. Calif ano, supra; and Chaudoin v. State, supra.

When a writing is used only to revive present recollection, it need not have been written by the witness himself. Chau-doin v. State, supra (“no rule of evidence . . . prohibits a witness from referring to notes made by another to refresh his memory.” At 571-572). A paper used to revive present recollection does not have to be an original. Davis v. State, 47 Fla. 26, 36 So. 170 (1904); King v. Califano, supra; State v. Liston, 18 Or.App. 26, 523 P.2d 609 (1974). In many jurisdictions it is immaterial when the writing was made, if it is used only to elicit present recollection. Gauthier v. State, 28 Wis.2d 412, 137 N.W. 2d 101 (1965) cert. den., 383 U.S. 916, 86 S.Ct. 910, 15 L.Ed.2d 671 (1966); Smith v. Bergmann, 377 S.W.2d 519 (Mo.App.1964); Carter v. Carter, 187 Kan. 74, 353 P.2d 499 (1960); Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959), cert. den. 361 U.S. 930, 80 S.Ct. 372, 4 L.Ed.2d 354 (1960). But cf. Great Atlantic & Pacific Tea Co. v. Nobles, 202 So.2d 603 (Fla.App. 1st Dist., 1967). As a corollary to the rules allowing such wide latitude in the choice of writings as mnemonic aids, the writings used to prompt recollection are not necessarily admissible in evidence themselves. If a writing is admissible independently, its use to spur a witness’memory does not disqualify it, but it cannot come into evidence on the coattails of the testimonial recollection it sparks.

It is the witness’ testimony as to the substance of his recollection which constitutes the evidence, when a writing revives present recollection. A writing may serve to jog a witness’ memory and also be admissible on some independent ground. But no such independent ground was established, in the present case, when the tax forms were physically introduced in evidence, over respondents’ hearsay objection. The writing on the tax forms was the work not of the witness but of another. Insofar as was shown at trial, the forms are simply a writing in which Mr. Garrett’s employer, Mr. Huggins, recites what he paid Mr. Garrett. The unverified writing of a third person, like the ordinary speech of a third person, is hearsay. Pickrell v. State, 301 So.2d 473 (Fla.App. 2nd, 1974); Bowen v. Seaward Dredging Corp., 242 So.2d 151 (Fla.App. 3rd, 1970); Smith v. Frisch’s Big Boy, Inc., 208 So.2d 310 (Fla. App. 2nd 1968).

In order to be admissible, such a writing must be shown to fall under an exception to the general rule excluding hearsay from evidence. Although the forms Mr. Huggins filled out were printed by the government, they are not official records for that reason. If these forms were filled out in the ordinary course of business, it was open to the plaintiffs’ counsel to establish that fact, if he could, and bring them within the business records exception. It is immaterial that the documents could have been shown to be within an exception to the rule disallowing hearsay, if no foundation was in fact made.

The petitioners cite Jenkins v. State, 31 Fla. 196, 12 So. 677 (1893) for the proposition that a writing is admissible in evidence where “[n]o other use appears to have been made of such a memorandum book at the trial but to refresh the memory of the witness to whom it belonged in giving his testimony.” 12 So. at 678. Unlike the tax forms in the present case, the writing in Jenkins was the work of the witness whose memory was refreshed. It is not clear in the Jenkins case whether an adequate foundation had been laid for the “memorandum book” at issue there, so as to qualify it as past recollection recorded. Assuming no such foundation was laid, the decision in Jenkins lends some support to petitioners’ contention, but has been implicitly overruled on this point by cases decided in this century. B. g., United Sand & Material Corp. v. Florida Indus. Com’n, supra (although “the original notes, memorandum or other document made' contemporaneously with or soon after a transaction or event may be used by a witness . [s]uch a memorandum is not admissible as substantive evidence.” At 453.) If counsel had only to show a writing to a witness, ostensibly in hopes of evoking some recollection, in order to render the writing admissible in evidence, the hearsay rule could be circumvented, simply by reducing hearsay to writing for tendering to the witness. In this fashion, hearsay could be hoisted by its own bootstraps to the status of competent evidence.

Conceding arguendo that the tax forms were hearsay and improperly admitted in evidence, petitioners argue that the error was harmless, because the forms were cumulative to Mr. Garrett’s testimony. We reject the contention that this error was harmless. In fixing damages, the jury very likely took into account the difference between Mr. Garrett’s earnings before the accident and his earnings afterwards. Aside from the forms, the only evidence as to Mr. Garrett’s income after the accident was his own testimony, which was prompted by the tax forms. Petitioners’ harmless error contention is nothing other than a variation on their bootstrap argument. Under the view petitioners urge, any writing would be admissible so long as a witness had consulted it in the course of his testimony.

In order to hold that it was harmless error to admit the forms themselves into evidence, because the forms were cumulative to testimony which they evoked, we would necessarily carve a broad exception to the hearsay rule, as a practical matter. We cannot approve an application of the harmless error statute which would have precisely the same effect as a new exception to the hearsay rule, permitting counsel to offer writings into evidence, merely because his witness had used them to revive present recollection.

As an additional ground for reversal, the District Court asserted that the plaintiffs, petitioners here, failed “to prove the necessity and reasonableness of medical bills,” citing Shaw v. Puleo, supra and Schmidt v. Tracey, 150 So.2d 275 (Fla.App. 2nd, 1963). In Schmidt v. Tracey, supra, the Second District upheld a jury’s award of damages, against the plaintiff’s argument on appeal that her judgment was less than what she was out of pocket for medical bills. In Shaw v. Puleo, supra, this Court quashed an opinion of the First District which had reversed the circuit court judgment for supposed inadequacy of the damages. These cases illustrate appellate courts’ traditional reluctance to overturn jury verdicts.

Here respondents’ two objections at trial were to the introduction, respectively, of a physician’s bill and of a pharmacist’s bill, totaling $132.60, on the ground that Mr. Garrett’s testimony alone could not suffice to show that they represented reasonable and necessary expenses. Expert testimony was not required in order to render these medical bills admissible in evidence. Mr. Garrett’s testimony made it a question for the jury to decide, under proper instructions, whether these bills represented reasonable and necessary medical expenses. Respondents made no objection to the jury charges as to reasonableness and necessity of medical expenses. A reversal of the portion of the judgment in favor of Mr. Garrett would not have been justified, if the hearsay rule had not been violated, when the tax forms were introduced.

Although a single judgment effectuated the verdict in favor of the Gar-retts, the elements of Mr. Garrett’s claim for damages are different from the elements of Mrs. Garrett’s claim. The trial judge drew this distinction by stating damages separately in the judgment, and when he instructed the jury, as follows:

[I]n connection with Mr. Garrett’s cases, you should take into consideration, the reasonable value of expense of medical treatment and care necessary or reasonably obtained by him in the past or to be so obtained in the future, any earnings or work time lost in the past or any loss of ability to earn money in the future should also be considered.
As to the wife’s claim, that is Mrs. Garrett, you should take into consideration any loss by reason of her husband’s injury of his services, comfort, society and attentions in the past and in the future.

The hearsay evidence which was improperly admitted went to the issue of “earnings or work time lost ... or ... . loss of ability to earn.” The inadmissible evidence pertained exclusively to Mr. Garrett’s claim. The District Court found no impropriety of any kind in the evidence supporting the judgment in favor of Mrs. Garrett, nor do we. Respondents do not argue that the verdict in favor of Mrs. Garrett rests on unlawful evidence, or that any procedural irregularity at trial affected it. Accordingly, there is no basis on which to disturb the trial court’s judgment as to Mrs. Garrett.

The decision of the District Court of Appeal, First District, is approved in part and quashed in part, and the cause is remanded to the District Court for further proceedings consistent with this opinion.

OVERTON, C. J., and ROBERTS, ADKINS, ENGLAND and SUNDBERG, JJ., concur.

BOYD, J., dissents.

      . Defendants on a separate claim tried at the same time did not appeal.

      . The tax forms were filled out not by the witness himself but by the witness’ employer.

      . Respondents maintain that the witness read from the forms at trial, which they assert to be equivalent to the introduction of the forms themselves into evidence. Petitioners, who do not specifically deny that the witness read his answers from the forms, argue that the record is insufficient to show that the witness did not testify on the basis of an independent recollection, revived by the forms. Petitioners take the position that this ambiguity in the record ought to be resolved against the party seeking to overturn the judgment. We need not decide the question, in light of the fact that the forms themselves were admitted into evidence, later in the trial.

      . (CONTINUED) DIRECT EXAMINATION BY MR. MABIE:
      Q. Mr. Garrett, I’m trying to recall exactly where we were when you came down from the stand to avoid repeating it. I had asked you about the figure which represented your earned income from the years nineteen seventy and nineteen seventy-one and nineteen seventy-two, but I haven’t asked you about nineteen seventy-three. Is that a copy of your W-2, form 1099 showing your income from ABC Motors, your employer, for this last year, nineteen seventy-three?
      A. Yes, sir.
      Q. And what is the amount that you earned in nineteen seventy-three?
      A. Sixty-nine sixty-six thirty.
      MR. MABIE: Your Honor, we offer all four of these into evidence.
      THE COURT: That will be Exhibit Ten.
      MR. GAINES: We have the same objection, Your Honor, that they are hearsay.
      THE COURT: Objection overruled.

      . Because the contents of a writing which is consulted during testimony bears on the witness’ credibility, opposing counsel may “examine the notes to which the witness referred in giving his testimony so that ... repeated reference ... to purported recorded notes is not a device employed to deceive the jury,” Allen v. State, 243 So.2d 448, 450 (Fla.App. 1st Dist., 1971), and it is open to opposing counsel to introduce such notes. Notes relied on to revive present recollection are not admissible, however, for the purpose of bolstering the credibility of the recollection they spark.

      . When a witness identifies as such a writing made contemporaneously (or nearly so) with events as to which testimony is elicited, and testifies that he knew at the time it was written that it was accurate, he incorporates into his testimony by reference the record of past recollection. On this basis, the writing becomes admissible since it is supported by the witness’ oath, and he is available for cross examination. If the writing is by another, it may be admitted notwithstanding the rule against hearsay. As with any other exception to the hearsay rule, however, it is necessary that the predicate be established for exemption from the rule.

      . The respondents’ entire argument on this point, as set forth in their brief at pp. 11 and 12, is, as follows:
      Dr. Olsen [a treating physician] was not called as a witness. There was no testimony from anyone else as to the reasonableness of his bill. The only testimony which related it to the collision was that of Mr. Garrett. There was no authentication of the charges shown on the bill from the pharmacy as being reasonable or related to the accident except the testimony of Mr. Garrett.
      In admitting these documents into evidence as plaintiff’s exhibit 2 (R 45) and exhibit 8 (R 51), the trial judge was apparently following the same rule he applied in admitting plaintiff’s exhibit 10 — any document is admissible into evidence if it appears to have some relevance to the case. For the reasons stated in our argument of points 1 and 2, the admission of these doeu-ments into evidence was error. The District Court of Appeal, First District, was correct in so holding.

      . At p. 12 of respondents’ brief counsel argues: The only testimony which related [Dr. Olsen’s bill] to the collision was that of Mr. Garrett [who also testified that the bill had been paid.] There was no authentication of the charges shown on the bill from the pharmacy as being reasonable or related to the accident except the testimony of Mr. Garrett.

      . In this Court, respondents’ only argument that the verdict in favor of Mrs. Garrett should not stand is that the verdict in her favor, as well as the verdict in favor of her husband “are clearly grossly excessive.” Brief of Respondents, p. 13. We are unwilling to reweigh the evidence and substitute for the jury’s verdict our own monetary estimate as to Mrs. Garrett’s damages. Shaw v. Puleo, supra; Schmidt v. Tracey, supra.


author: PER CURIAM. ENGLAND, Justice BOYD, Justice

text:
    Ray SANDSTROM, Petitioner, v. STATE of Florida, Respondent.
    Nos. 47201, 47450.
    Supreme Court of Florida.
    June 30, 1976.
    Rehearing Denied Sept. 23, 1976.
    Ray Sandstrom, pro se.
    Robert L. Shevin, Atty. Gen., and C. Marie Bernard, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected probable jurisdiction in this Court. We issued the writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the writ of certiorari must be and is hereby discharged.

It is so ordered.

OVERTON, C. J., and ROBERTS, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., dissents with an opinion.

BOYD, J., dissents with an opinion, and concurs with ENGLAND, J.

ADKINS, J., dissents and concurs with ENGLAND, J.

ENGLAND, Justice

(dissenting).

By petitions for writs of certiorari directed to the Third and Fourth District Courts of Appeal, we have been asked by-Ray Sandstrom, a member of the Florida Bar, to review appellate decisions upholding his two convictions of criminal contempt entered in the trial courts of Dade and Broward County. His first conviction, in Broward County, was affirmed by the Fourth District Court of Appeal in an opinion reported at 309 So.2d 17. His later Dade County conviction was affirmed by the Third District Court of Appeal, on the authority of the earlier case, in a decision reported at 311 So.2d 804. We tentatively granted certiorari to resolve an apparent conflict between these decisions and earlier Florida precedents. As will be developed more fully below, I believe that the conflict of decisions is direct, and that we have jurisdiction to review these two district court decisions.

The conduct of Sandstrom which was found to be contemptuous in each case was for all practical purposes identical. He appeared before a trial court judge, in his capacity as an attorney representing defendants in criminal causes, without a fabric necktie. His personal appearance and attire, which included a suit, clean and pressed shirt, and a hanging gold medallion, were otherwise neat, attractive, and proper. In each case the circuit judge ordered him to don a fabric necktie and recessed the court in order to give him time to comply. In each case Sandstrom refused to alter his attire, and when court reconvened he was cited for contempt and refused permission to represent his clients. The sole reason for the finding of contempt in each case was Sandstrom’s refusal to wear a fabric necktie. In Broward County Sandstrom was sentenced to three days in jail. In Dade County he was fined $500.

The Fourth District Court of Appeal affirmed Sandstrom’s first conviction after finding that the only issue which could be raised on appeal was whether the Broward County Circuit Court had jurisdiction to order Sandstrom to wear a necktie. Inasmuch as the Third District affirmed the Dade County conviction without explanation and on the authority of the Fourth District’s decision, it obviously adopted the same view of its review authority. The determinations of these courts as to the form of appellate review in contempt cases creates the direct conflict with earlier decisions of this Court which requires our clarification.

A first step is to explore whether the district courts had jurisdiction to entertain direct appeals of the contempt citations, and if so whether the appropriate standard of review was applied in these cases. No uniform procedure for reviewing contempt citations has been followed in Florida. In early cases it was held, due principally to statutory limitations on contempt powers, that review could only be had by writ of habeas corpus, and in those cases the only cognizable issue was whether the order of contempt was within the power of the court. In 1931, this Court held -in Seaboard Air Line Ry. v. Tampa Southern R. R. that a civil contempt citation would be reviewed on appeal, although criminal contempt remained reviewable only by habeas corpus. Later in Pennekamp v. Circuit Court, the Court expanded the right of appeal to indirect criminal contempt where a fine was levied, as opposed to confinement in jail. Still later, in Clein v. State, we reviewed by appeal an indirect criminal contempt punishable by detention. Habeas corpus, however, was permitted as an alternative means of relief.

The Florida district courts of appeal were created in 1957. From their inception, a diversity of review procedures were permitted. In 1959 the Second District Court of Appeal held that appeal was proper in all contempt cases. Less than four years later the same court held that direct contempt was reviewable by writ of habeas corpus. In 1962 the First District Court of Appeal concluded that appeal was generally unavailable for contempt, but that on consideration of all of the facts in the case before it there were equitable grounds to consider an appeal and alleviate a harsh punishment for indirect criminal contempt. In 1972, the Third District Court of Appeal reviewed by appeal an attorney’s citation for direct criminal contempt.

Now, in the two cases before us, the Third and Fourth District Courts have accepted without comment appeals of Sand-strom’s convictions of direct contempt. Because Sandstrom has been punished by the levy of a fine in one case and by detention in jail in the other, I feel compelled to clarify the earlier dichotomies and to determine the proper scope and manner of reviewing adjudications of direct contempt.

The availability and scope of appellate review of these identical contempt charges should not depend upon the degree of punishment or coercion which the trial judge elected to impose. To insure that the summary power of contempt is not abused, and to prevent possible inequities on review which could result from the application of different standards, I would hold that direct contempt cases are reviewable in the district courts whether they are brought by appeal or petition for writ of habeas corpus. Indeed, this result seems to be required by the constitutional directive adopted in 1972 that “no cause shall be dismissed because an improper remedy has been sought.” It would follow that both district courts were correct in accepting the appeals below.

The more difficult issue in this case is the appropriate scope of review. Florida Appellate Rule 6.16 requires an appellate court to review

“all rulings and orders appearing in the appeal record insofar as it is necessary to do so in order to pass upon the grounds of appeal.”

Sandstrom argues that this rule required the district courts to pass on the propriety of the trial courts’ first orders, requiring him to appear in court wearing a fabric necktie. The state argues that those orders are not subject to collateral attack on appeal of the direct contempt orders, and that Sandstrom should have appealed the first orders rather than defy them. I agree with the state as a general matter, but I also agree with Sandstrom’s assertion that orders which can generate a contempt citation must always be tested for inherent invalidity.

The orders appealed to the district courts were those which declared that Sandstrom had disobeyed an earlier court order in the presence of the court, and summarily adjudicated him guilty of contempt. It has always been the law that knowing and voluntary disobedience of a valid court order is contemptuous. Since the circuit judges had jurisdiction over Sandstrom and he willfully disobeyed their orders, the district courts properly found the contempt citations to be supported in the record. Sandstrom does not dispute their factual foundation. This would end the matter if the underlying court orders, in these cases prescribing Sandstrom’s attire, were either unchallenged or unassailable. For example, a general order preventing the possession of loaded firearms in a courtroom would generally be valid and present no question on review if disobeyed.

The district courts here, however, had also to determine whether the orders which Sandstrom disobeyed were valid orders of the trial courts, for if they were not he obviously could not be punished for disobeying them. Neither order directing him to wear a necktie in court was published or-rendered, in the approved sense, so as to be generally known and applicable to all attorneys in the respective circuits. Nonetheless, both district courts concluded that trial courts have the power to regulate the attire of attorneys in judicial proceedings, and that the orders requiring Sandstrom to wear a fabric necktie were not void. On the latter point I disagree with the district courts.

Under the Constitution of this state the people of Florida have sought to guarantee to every individual the basic right to choose his or her own lifestyle without undue governmental interference.

“All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property . . . .”

It falls to the courts to guard against improper attempts to exercise governmental authority, whether legislatively, by executive directive or judicially, in areas touched by these guarantees. The fundamental principles are well-established.

“When appealed to in a proper case, the judiciary can render no greater service toward the perpetuation of free government than to accord to an individual litigant before it, however humble his station in society may be, the just protection of our fundamental law, when that protection is sought as a means to forestall aggressive combinations bent on employing the power of statutes to penalize the citizen for his rugged individuality in refusing to surrender his constitutional rights to what may be a contrary minded political majority.”

At least one appellate court in this state has recognized that personal grooming and appearance can be an integral part of a person’s chosen lifestyle. An individual’s manner of dress expresses and reflects ideals personal to him. I do not doubt that in many cases a sense of well-being is derived from an individual’s knowledge that he is attired in a manner which is in harmony with his personal views of life, or that the opposite sense of confinement and restriction may attend required adherence to dress codes which the individual finds abhorrent. As petty as clothing might be to some, the individual liberty and free choice which our Constitution recognizes is not dependent upon either a majority or unanimous view as to the significance of any particular right.

This is not to say, of course, that the multitude of rights exercisable in the name of personal liberty are absolute. They can be limited if, taking into account the rights of others or the requirements of a smooth functioning society, substantial justification is shown. The state here argues that control of the judicial process is a substantial, traditional and legitimate justification for restrictions on attire, and that a trial judge must be accorded complete freedom, even in the form of a dress code, to maintain the dignity of the judicial process. The state also argues that the erosion of liberty at stake here, forced fabric neckwear, is a negligible burden on practicing attorneys which is and has been borne by the vast majority of practitioners without complaint. As to the latter assertion, we have previously stated that the suppression of individual liberty frequently takes unobtrusive forms. Consequently, the slight degree of impairment may be a factor to be considered in determining whether the limitation is sufficiently justified, but it does not dispose of the issue.

I agree with the state that control over the administration of justice must include the inherent right to control the courtroom. I do not agree that the power inherent in the right is unlimited.

“Judicial wisdom and the experiences of the past would seem to demand that the extraordinary powers given to courts to punish for contempt be not used except to prevent actual and direct obstruction or interference with the administration of justice.”

The only legitimate interest of the courts in requiring attorneys to dress in a particular way is the preservation of the dignity of the judiciary and judicial proceedings. Attire worn by officers of the court must be in harmony with the seriousness of the search for truth and justice. Distracting or bizarre dress, any more than bizarre or distracting behavior, should never be permitted to detract from the attainment of these high goals. When such instances occur it is the duty of the courts to take remedial action. Where those interests are not threatened, however, judicial infringement on personal liberty is just as noxious to our Constitution as any other form of unwarranted governmental intrusion.

“The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. ‘Trial courts . . . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.’ ” (citations omitted)

The predicate for remedial or punitive contempt in matters of dress must be a factual basis from which it can be reasonably concluded that the operation of the judicial process is in imminent peril. In the cases before us, there was no factual basis on which the trial judges could conclude that the mission of the judiciary was threatened by the absence of a tie around Sandstrom’s neck. Indeed, both trial courts expressly acknowledged as much. The orders lacked a proper foundation and for that reason must be considered beyond the power of the judges to enter and void.

There are those who will fear that small incursions on the formality of courtroom attire might lead to an erosion of our ability to perform important public work, and in time contribute to a wholly unacceptable courtroom atmosphere. This case does not in fact present an incremental change, let alone one which would inevitably lead to that situation. It is not unusual in the contemporary governmental world for men of high purpose to go about their affairs without-a necktie, and it can pose no threat to our judicial system to permit attorneys freedom to adopt the reasonable clothing 'styles of the time. I reject any inference that respect for the judicial system is dependent upon male attorneys wearing neckties. Surely the dignity of the judiciary rests on more substantial ground.

I would quash the decisions of the Third and Fourth District Courts of Appeal and remand these cases with directions to vacate the contempt citations of the Dade County and Broward County circuit courts.

ADKINS and BOYD, JJ., concur.

BOYD, Justice

(dissenting).

I respectfully dissent to the majority opinion and agree fully with the views expressed by Mr. Justice England.

Prior to the second World War both male and female attorneys were expected to wear dark, conservative clothing when appearing in Court, with men usually attired in white shirts and dark ties. During the War the need for women in military service and in defense plants caused a general relaxation of dress codes among women, and the men, including President Harry Truman, began wearing sport shirts in public places. The dress codes for the past thirty years have been so relaxed that it is often difficult to discern whether a person is a man or a woman, especially with the long hair worn by many men. It is common practice for attorneys to appear in courts with bright colored clothing and to demonstrate a relaxed attitude which would have been shocking to courts forty years ago.

For more than twenty-five years men have appeared in public wearing string ties with medal ornaments identical to that worn by petitioner in his court appearances. It is common knowledge that petitioner has appeared in both Federal and State courts on countless occasions dressed in the same kind of tie worn by him on the occasions in which he was cited for contempt. Other judges, including the Supreme Court of Florida, have not been offended by the wearing of the tie and I am totally unable to understand why the wearing of a string tie should offend the trial judges on the occasions resulting in these charges of contempt.

It is interesting to observe that the female Assistant Attorney General who appeared before this Court against petitioner was wearing an attractive coat, shirt and tie which would have been considered extremely unorthodox forty years ago. Apparently if the male petitioner in this instance had been wearing the same coat, shirt and tie worn by the female Assistant Attorney General the trial courts would not have cited him for contempt. The irony of the situation is further illustrated by the fact that if petitioner should become a judge and should determine it proper for all male attorneys to wear string ties when appearing before him, he might well cite all non-conforming members of the Bar for contempt. If trial judges can require male attorneys to wear ties preferred by said judges then those who wear bow ties may require the wearing of bow ties and those who wear blue ties may be offended by those who wear red ties.

Specifically, it is my opinion that judges are not permitted by the Federal or State Constitutions, statutes or rules of court, to hold an attorney in contempt for wearing any type of clothing in courtrooms so long as such clothing does not interfere with the proper administration of justice or demonstrate disrespect for the court or judicial proceedings.

      . Fla.Const. art. V, § 3(b)(3).

      . In each case Sandstrom filed a motion at the time of his reappearance without a fabric tie, in proper form, asking the trial judge to disqualify himself. Each motion was denied. Although Sandstrom argues the impropriety of those actions, it is not essential to pass judgment on those rulings.

      . In both cases Sandstrom did later appear before the same trial judge, wearing a fabric necktie, in order to represent his clients.

      . He was originally fined $500 for each day of non-compliance failing payment of which he would be confined for five days in jail, but without explanation the penalty later became a one-time fine of $500.

      . Our review of the Third District Court’s decision is complicated by a feature of the proceeding in that court which is not present in the other case. The record reflects that when Sandstrom appeared for his scheduled oral argument before the Third District Court he was not wearing a fabric necktie, and for that reason alone the court denied him the right to argue. The panel sitting that day announced it would consider his ease on the briefs alone. Sandstrom promptly filed a motion, in proper form, to disqualify the panel on the grounds of obvious prejudice against the merits of his cause. The motion was denied by the panel, and Sandstrom has assigned that denial as error here. Sand-strom’s contempt was described in the case as “direct criminal contempt”, and he argues that Rule 3.230(d), Fla.Rules Crim.Proc., both operates to restrict a judge’s consideration of a disqualification motion to the legal sufficiency of the motion and bars his own adjudication of the question of disqualification. The disposition of these matters I would make precludes the necessity of ruling on Sand-strom’s contentions regarding disqualification.

      .The power to hold persons in contempt is inherent in courts as a necessary element of judicial authority to maintain the dignity of the judiciary and obedience of the law. State etc rel. Giblin v. Sullivan, 157 Fla. 496, 26 So.2d 509 (1946); In Re Hapes, 72 Fla. 558, 73 So. 362 (1916); Ex parte Beville, 58 Fla. 170, 50 So. 685 (1909). “Contempt” is generally classified, to delineate the procedures which may be required, as being “direct” (where the act is committed in the presence of the court and summary adjudication is permissible) or “indirect” (where the act is committed outside the presence of the court and more due process is required). Contempt is also classified, to delineate its purposes, as “civil”, (where the goal is to compel or coerce particular conduct) or “criminal” (where the goal is to punish). As an example of a civil contempt case, see Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966) (“In short, if the petitioners had chosen to obey the order they would not have faced jail.”). And see Ex-Parte Terry, 128 U.S. 289, 98 S.Ct. 77, 32 L.Ed. 405 (1888); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); In re S. L. T., 180 So.2d 374 (Fla.App.2d 1965). I would characterize Sandstrom’s convictions as “direct”, which eliminates from consideration the due process issues Sandstrom has raised, but it is not clear whether the punishments prescribed are better labeled “criminal” or “civil”. See n. 4, above, regarding the coercive nature of the original Dade County punishment. Since I do not deem the characterization controlling as to the consequences, I would not here decide whether it is one, the other, or a hybrid.

      . Ex parte Edwards, 11 Fla. 174 (1867); Caro v. Maxwell, 20 Fla. 17 (1883). An exception existed for “remedial” rather than “punitive” orders, but no clear statement of how to classify such orders was ever given and apparently the exception was not consistently followed. See Sanchez v. Sanchez, 21 Fla. 346 (1885); Florida Central & Peninsular R. R. v. Williams, 45 Fla. 295, 33 So. 991 (1903); Miller v. Miller, 91 Fla. 82, 107 So. 251 (1926).

      . 101 Fla. 468, 134 So. 529 (1931). Drawing on the “remedial-punitive” distinction of earlier cases, it was suggested that criminal contempt, being “punitive”, was subject only to the limited form of review given petitions for habeas corpus.

      . 155 Fla. 589, 21 So.2d 41 (1945). This decision implied that habeas corpus was inappropriate because the parties did not request release from improper detention.

      . 52 So.2d 117 (Fla.1950). See also Fisher v. State, 248 So.2d 479 (Fla.1971).

      . State ex rel. Mitchell v. Kelly, 71 So.2d 887 (Fla.1954). See also Mitchell v. Parrish, 58 So.2d 683 (Fla.1952), in which a habeas corpus proceeding before the circuit court was reviewed by appeal.

      . Puleo v. State, 109 So.2d 39, 44 (Fla.App. 2d 1959).

      . State ex rel. Laramie v. Boggs, 151 So.2d 456 (Fla.App.2d 1963).

      . Neering v. State, 141 So.2d 615 (Fla.App. 1st 1962), cert. disch’gd, 155 So.2d 874 (Fla.1963).

      . Kleinfeld v. State, 270 So.2d 22 (Fla.App. 3d 1972), cert. denied, 275 So.2d 251 (Fla.1973).

      . Fla.Const. art. V, § 2(a).

      . See Seaboard Air Line Ry. v. Tampa Southern R. R., 101 Fla. 468, 134 So. 529 (1931).

      . State ex rel. Everette v. Petteway, 131 Fla. 516, 179 So. 666 (1938). See also State ex rel. Nuveen v. Geer, 88 Fla. 249, 102 So. 789 (1924), holding an official act violating the constitution is void at its inception.

      . Rule 1.020(e), Fla.Rules Civ.Proe., provides that local rules must be approved by the supreme court. Rule 1.3, Fla.App.Rules, provides that orders are “rendered” when reduced to writing, signed and made a matter of public record by recording or filing. See Barry v. Robson, 65 So.2d 739 (Fla.1953).

      . Fla.Const. art. I, § 2.

      . L. Maxcy, Inc. v. Mayo, 103 Fla. 552, 139 So. 121, 131 (1932) (on rehearing).

        . Conyers v. Glenn, 243 So.2d 204 (Fla.App. 2d 1971) (hair length of students). To the same effect see Johnson v. Joint School District No. 60, 95 Idaho 317, 508 P.2d 547 (1973); Wallace v. Ford, 346 F.Supp. 156 (E.D.Ark.1972); Dawson v. Hillsborough County School Board, 322 F.Supp. 286 (M.D.Fla.), aff’d, 445 F.2d 308 (5th Cir. 1971); Hunt v. Board of Fire Commissioners, 68 Misc.2d 261, 327 N.Y.S.2d 36 (1971). Decisions under the United States Constitution provide some guidance to the interpretation of the Florida Constitution. However, the rights guaranteed by the Florida Constitution are not precisely parallel to those protected by the federal constitution and I do not deal with the federal aspects of Sandstrom’s rights in these eases.

      . See L. Maxcy, Inc. v. Mayo, n. 21 above.

      . General custom is not proof that neckties have always been worn in courts or that they are uniformly worn in courts today. Informal proceedings, especially in the rural counties of this state and in other forums earlier in our history, are not unknown. With respect to neckties specifically, the state does not contest Sandstrom’s unverified statement that he has appeared without a necktie in several federal and Florida courts. It could not, of course, since we have allowed Sand-strom to appear and argue in our Court on more than one occasion in the attire which the lower courts found contemptuous.

      . See L. Matvey, Inc. v. Mayo, n. 21 above.

      . Some of the federal courts addressing the issue of whether schools could regulate the length of hair on males have decided that the right to choose hair length is too insubstantial to support federal jurisdiction. See, for example, Freeman v. Flake, 448 F.2d 258 (10th Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1292, 31 U.Ed.2d 489 (1972). Other federal courts have refused to accept that reasoning because “To say that the issue is not ‘substantial’ turns a deaf ear to the basic values of individual privacy and the freedom to caricature one’s own image.” Bishop v. Colaw, 450 F.2d 1069, 1078 (8th Cir. 1971) (concurrence). See also, Stull v. School Board, 459 F.2d 339 (3d Cir. 1972); Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970).

      . State ex rel. Giblin v. Sullivan, n. 6 above, 26 So.2d at 516.

      . In re Dellinger, 370 F.Supp. 1304, 1315 (N.D.Ill.1973).

      . In re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708 (1972).

      .In both cases the matters under court consideration were addressed to the trial judge alone, acting without a jury. No one but the judges themselves evinced offense or pled distraction from the seriousness of the matters being litigated.

      . Another obvious problem with the orders of the trial courts is their limited application to males, since female attorneys are not prohibited from wearing open-neck dresses or pantsuits.

      . See, Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 201 (1971).


author: OVERTON, Chief Justice.

text:
    Ray G. BEHM and Frances K. Behm, Petitioners, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.
    No. 45431.
    Supreme Court of Florida.
    July 8, 1976.
    Rehearing Denied Sept. 21, 1976.

      James J. Richardson, of Henderson, Richardson, Henry, Buchanan, Munroe & Rodman, Tallahassee, for petitioners.
    Geoffrey B. Dobson, Tallahassee, Barbara Dell McPherson, Jacksonville, and Winifred Sheridan Smallwood, Tallahassee, for respondent.
   OVERTON, Chief Justice.

This cause is before the Court upon petition for writ of certiorari to review the decision of the Fourth District Court of Appeal reported at 292 So.2d 437 (Fla.4th DCA 1974). The decision sought to be reviewed acknowledges direct conflict with City of Jacksonville v. Yerkes, 282 So.2d (645 Fla. 1st DCA 1973), cert. den. 291 So.2d 9 (Fla.1974). We have jurisdiction. The First District Court of Appeal by another panel in Tuttle v. Division of Administration, State of Florida Department of Transportation, Fla.App., 327 So.2d 841, (1976), reaffirmed but qualified the decision in City of Jacksonville v. Yerkes, supra. The Tuttle decision is now before this Court upon the asserted contention that it conflicts with the Y erkes decision and a certification of the First District that it passed upon a question of great public interest.

The issue before this Court concerns the latitude an eminent domain jury has in awarding compensation when the only evidence on an element of compensation is the testimony of one expert witness.

The petitioners were the property owners in an eminent domain proceeding below, and challenge the jury’s verdict of $9,500 for business damages. Evidence offered by the property owners’ expert at trial valued the business damages at $19,500. The property owners assert that-the jury was without authority to award them less than the sum of $19,500. The specific facts were well summarized by Judge Walden in his decision for the Fourth District:

“The owners of a hardware store claim business damages because the taking prevented the display of sales merchandise outside the building out in front of the store. The property owner’s expert witness testified that in order to cure the lack of display space it would be necessary as a substitute for the store to advertise in some way somewhere to the tune of $100 to $150 per month. More specifically, he testified:
'A I started an investigation, and what I did is I went to other hardware stores, Singer Hardware, Park Center Hardware, Sewell Hardware, Mower and Engine Repair, Hall Hardware, Ace Hardware, and asked them what they throught (sic) this area in front of their store where they put their merchandise was worth to them.
“ ‘Q Mr. Holden, please don’t testify as to what they told you. Now, did you find that they characteristically put items out front of the same nature that we have here ?
“ ‘A They use it exactly the same and the first thing any one of these stores did was put their merchandise out in the morning because that to them was their most valuable asset and the best way of displaying their merchandise for sale.
‘Q Based on your investigation did ■ you arrive at an opinion of what this is worth as advertising to a business, this area in front where you display your wares ?
‘A On acquiring these facts from these different people, they estimated that to take up the loss, if they lost that area, they would have to advertise $100 to $150 a month some place to regain what they are losing in that advertising space and this was what my investigation showed.
‘So that I decided then I would use the in between figure of $125 a month, which is what a person would pay then for advertisement they had in front of their store.
‘Q In connection with this did you make an examination of Mr. Behm’s advertising, did you see some of the bills, what he ordinarily spends for advertising?
‘A I did. I then took the $125 which they would spend per month, multiplied it by 12 and arrived at $1,500 a year, which would be an additional advertising campaign that they would, one would put on, due to the lack of that space he had.
‘Taking that amount for 25 years at 6 per cent, which gave me a figure of 12,783, that’s what it would be worth if someone handed it to you today, it gave me $19,175.
“‘That $19,175 is estimated business loss due to this loss in advertising space. To show you what I mean, if someone was given $1,-500 a year for 25 years they would arrive at $37,500. But you would have to wait the 25 years to get all that money, so this is what we would do to find out what it’s worth if it was given to you today.’ (Emphasis supplied.)
“In summary, the witness picked the figure of $125 per month, based on what somebody told him, multiplied it by 12 to reach the yearly figure of $1,500. He then multiplied this yearly figure by 25 years to reach a total of $37,500, which he reduced to a present value of $19,175. Thus, the witness in his tenuous equation necessarily relied upon the premise that the building had yet a life of 25 years. It is not shown where or how he obtained this critical ingredient of 25 years to structure his hypothetical workup. But this overlooks other testimony adduced. Furthermore, the witness himself, and properly so, termed the fruit of his calculations as being only an estimate.”

The Fourth District Court of Appeal held the verdict was within the proper range for the compensation of business loss. We agree and affirm.

The petitioner property owners contend that the jury was without authority to award them less than the figure testified to by their expert witness since the state failed to present any expert testimony on the element of business loss compensation. This contention is predicated upon their interpretation of this Court’s decisions in Meyers v. City of Daytona Beach, 158 Fla. 859, 30 So.2d 354 (1947), and Dade County v. Renedo, 147 So.2d 313 (Fla.1962). These decisions established a rule of law in condemnation proceedings requiring that “the jury verdict must be not less than the lowest estimates nor more than the highest.” Dade County v. Renedo, supra at 316. This rule was necessitated by the uniqueness of condemnation proceedings, and is expressed in instructions to the jury as “your verdict shall not be less than the lowest value testified to by any witness nor shall it be higher than the highest value testified to by any witness.” See Florida Eminent Domain Practice and Procedure, Section 8.13, Instruction No. 11 (2d ed. 1970).

The issue before this Court evolves from an interpretation of this rule. The law of this state requires a condemning authority to establish what it believes to be just compensation for the land taken. The condemning authority thus admits damages in this amount, and requires the jury to find that amount as the minimum award. The property owner on the other hand may rebut that evidence and, moreover, may come forward with evidence of additional elements of damages as provided by statute. The maximum total amount of compensation presented in evidence for each element of damage by the property owner establishes the maximum amount of compensation. By the proper application of the rule adversaries admit the value of the property interest taken is neither less nor more than their respective claims. We agree with Judge Walden that the property owners’ expert testimony was the maximum amount requested, not a minimum amount admitted. The case of Meyers v. City of Daytona Beach, supra, is an instance where the jury awarded less than the minimum amount admitted by the evidence presented by the condemning authority.

In considering an expert’s testimony the jury must be guided by the greater weight of the evidence, and it remains the jury’s province to determine the weight and credibility to be given an expert’s testimony. Guidelines for this evaluation were established by Mr. Justice Drew in Dade County v. Rene do, supra, where he stated:

“ . . .It then becomes the province of the jury to render its verdict as in other cases upon the evidence that has been produced for its consideration. Knowledge which may be gained by the jury from a view of the property being condemned may be utilized by the jury— not for the purpose of arriving at an independent determination of their own as to value and damages — but for the purpose of assisting them in understanding, interpreting and weighing the evidence which has been produced for their consideration. As in all other cases where the evidence is conflicting, it is within their province to resolve such conflicts but the results reached in such process must be within the evidence and supported by it. Where expert witnesses are produced and testify as to the value and such testimony is not in itself, or in relation to other evidence, properly susceptible of different interpretation as in this case, then the jury verdict must be not less than the lowest estimates nor more than the highest. Otherwise, as pointed out in the Doty case, ‘the jury’s verdict should not be reviewed, even when clearly contrary to the most reasonable and convincing testimony.’ ” Id. at 316.

The jury in a condemnation proceeding may not make an independent determination of the value of the property. But in evaluating, interpreting, and weighing the credibility of the testimony of an expert witness they may apply to the expert testimony their knowledge and experience, view of the property, as well as other evidence in the case to determine its reasonableness. The opinion of an expert is worth no more than the reasons on which it is based, and if properly susceptible to differing interpretations the jury is at liberty to make such intrepretations. Dade County v. Renedo, supra. See generally Elston v. York, 77 So.2d 856 (Fla.1955); Wynne v. Adside, 163 So.2d 760 (Fla. 1st DCA 1964); Fekany v. State Road Department, 115 So.2d 418 (Fla.2d DCA 1959); Robertson v. Robertson, 106 So.2d 590 (Fla.2d DCA 1958); and Millar v. Tropical Gables Corp., 99 So.2d 589 (Fla. 3d DCA 1958). Compensation in an eminent domain case is by our constitution committed for final determination to the jury, not to an expert.

We reject the reasoning of City of Jacksonville v. Y erkes, supra. Judge Walden stated in his opinion the Y erkes view would,

“ . . . work basic injustices and unduly restrict and bind the fact finding function. As experienced triers know, there are experts with differing degrees of qualifications and subjects who lend themselves in varying degrees to the employment of opinion testimony. Some experts, although able to recite at least enough background and experience to mount the witness stand and give voice to their hypothesis and end opinion, are unworthy of belief, their opinions being against every understanding of common sense and everyday experience. It would be unthinkable to tell a trial court that, faced with this circumstance, it would have no alternative but to adopt as an established fact the opinion of such a witness when the other side failed to counter it with another expert.”

We fully agree.

The expert testimony in the instant case has been erroneously characterized by the petitioner as uncontroverted. The record reflects that the testimony was assailed on both cross and recross examination, and the jury’s award suggests that this impeachment was to an extent effective. But even if there had been no such cross-examination, we would not reverse the judgment. In the instant case the testimony concerning business loss was in itself susceptible to differing interpretations and the jury was well within its authority to establish the value of losses attributable to business damage to be $9,500. We find no error in that verdict.

We approve the decision of the Fourth District Court of Appeal and discharge the petition for certiorari.

It is so ordered.

ROBERTS, BOYD and ENGLAND, JJ., concur.

ADKINS, J., dissents.

      . Art. V, § 3(b)(3), Fla.Const.


text:
    Robert TUTTLE and Loretta Tuttle, his wife, d/b/a Triple S. Beachwear, Petitioners, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.
    No. 49252.
    Supreme Court of Florida.
    July 8, 1976.
    Rehearing Denied Sept. 24, 1976.
    Nicholas A. Caputo, Holly Hill, for petitioners.
    Winifred Sheridan Smallwood, Tallahassee, for respondent.

      L. William Graham, Dell, Graham, Will-cox, Barber, Rappehecker, Ryals & Henderson, Gainesville, for amicus curiae.
   OVERTON, Chief Justice.

This cause is before us on petition for writ of certiorari to review the decision of the First District Court of Appeal in Tuttle v. Division 'of Administration, State of Florida Department of Transportation, 327 So.2d 841, Opinion filed February 5, 1976. The First District, upon denial of petition for rehearing, certified that its decision in Tuttle, supra, passed upon a question of great public interest. We have jurisdiction.

In Tuttle, the First District reaffirmed its previous decision in City of Jacksonville v. Yerkes, 282 So.2d 645 (Fla.App. 1st, 1973), holding that in an eminent domain proceeding:

“. . . [T]he condemnor must pay the lowest estimate of severance damage given by any expert witness even if the condemnor offers no such testimony of its own . . . .” Tuttle, supra, at 842.

The District Court nevertheless qualified the Yerkes rule by holding it inapplicable to business damages:

“. . . [A] business damage verdict supported by a defensible view of the evidence may be sustained in an amount less than the owner’s demand when the condemnor offers no opinion testimony fixing the base of a range of estimates.”

The issue concerns the latitude an eminent domain jury has in awarding compensation when the only evidence on an element of compensation is the testimony of one expert witness. We have today answered that question in Behm v. Division of Administration, State of Florida Department of Transportation, 336 So.2d 579 (Fla.1976).

We approve the result reached by the First District in the instant case, but to the extent the decision below reaffirms Yerkes, supra, it is disapproved.

It is so ordered.

ROBERTS, BOYD and ENGLAND, JJ., concur.

ADKINS, J., dissents.

      . Art. V, § 3(b)(3), Fla.Const.


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re CODE OF JUDICIAL CONDUCT STATUS OF JUDGES’ SPOUSES.
    No. 49906.
    Supreme Court of Florida.
    Aug. 3, 1976.
   PER CURIAM.

At the request of the Dade County Commission on Status of Women, the Court formed a committee to study the status of judges’ spouses in political activities. Justice James C. Adkins served as Chairman of the Committee. The members are: Judge Tyrie A. Boyer, First District Court of Appeal; Judge Edward F. Boardman, Second District Court of Appeal; Circuit Judge Rhea P. Grossman, Member of the Executive Committee of Florida Conference of Circuit Judges; Dr. Freddie Groomes, Assistant to the President, Florida State University and Member of the Governor’s Commission on the Status of Women; and Mr. Stephen D. Busey, Jacksonville, Florida, who was selected by The Florida Bar. The Committee communicated with more than twenty judges’ spouses and prepared the attached changes in the Code of Judicial Conduct. The proposal was submitted to and approved by the Executive Committee of the Florida Conference of Circuit Judges, who determined that the proposal was “in the best interest of the administration of justice and more consistent than the present Canons with the First Amendment to the Constitution of the United States.” The proposal was also submitted to and approved by the Florida Conference of County Judges and the Board of Governors of The Florida Bar.

The attached amendments and additions to the Code of Judicial Conduct, Canons 2B, 3C(2), 5C(4) and adding 5C(5) and renumbering in sequence the balance of Canon 5, amending Canon 7B(l)(a), and adding a Commentary after Canon 7, are adopted by the Court to be effective upon the filing of this order.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, SUNDBERG and HATCH-ETT, JJ., concur.

CODE OF JUDICIAL CONDUCT

Canon 2

B. A judge should not allow his personal relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or authorize others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.

Canon 3

C(2) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the social and personal financial interests of his spouse and minor children residing in his household such as would require him to disqualify himself under the provisions of this Canon.

Canon 5

C(4) A judge should not accept a gift, bequest, favor, or loan from anyone except as follows:

(a) a judge may accept a gift incident to a public testimonial to him; books supplied by publishers on a complimentary basis for official use; or an invitation to the judge and his spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;
(b) a judge may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a wedding or engagement gift; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;
(c) a judge may accept any other gift, bequest, favor, or loan only if the donor is a relative or is not a party or other person whose interests have recently come or may likely come before him, in the immediate future, and, if its value exceeds $100, the judge reports it in the same manner as he reports compensation in Canon 6.

(5) A judge should make a reasonable effort to inform himself about the personal financial interests of members of his family residing in his household and shall report any gift, bequest, favor, or loan received thereby of which he has knowledge and which tends to reflect adversely on his impartiality, in the same manner as he reports compensation in Canon 6.

(6) For the purposes of this section “member of his family residing in his household” means any relative of a judge by blood or marriage, or a person treated by a judge as a member of his family, who resides in his household.

(7) A judge is not required by this Code to disclose his income, debts, or investments, except as provided in this Canon and Canons 3 and 6.

(8) Information acquired by a judge in his judicial capacity should not be used or disclosed by him in financial dealings or for any other purpose not related to his judicial duties.

Canon 7

B(l) A candidate, including an incumbent judge, for a judicial office that is filled either by public election between competing candidates or on the basis of a merit system election:

(a) should maintain the dignity appropriate to judicial office;

Commentary (To appear after Canon 7)

Any political activity engaged in by members of a judge's family should be conducted in the name of the individual family member, entirely independent of the judge and without reference to the judge or to his office.