Bechtol v. Lee

• Decision Date: 30 September 1937
• Citation: 176 So. 265,129 Fla. 374
• Parties: BECHTOL v. LEE, State Comptroller, et al.
• Court: Florida Supreme Court

176 So. 265

129 Fla. 374

BECHTOL v. LEE, State Comptroller, et al.

Florida Supreme Court

September 30, 1937

En Banc.

Suit by A. H. Bechtol, doing business as an individual and under the name of the Florida Coin Machines Exchange, against J. M Lee, as Comptroller of the State of Florida, and Frank Stoutamire, as Sheriff of Leon County, Florida, and others. From an order of dismissal of the bill of complaint, the plaintiff appeals. Pending appeal, a writ of injunction was issued under Const. art. 5, § 5, on the plaintiff's application, directing Frank Stoutamire, as Sheriff of Leon County, Florida, to refrain from any interference with or removal of the slot machines of the plaintiff until the further order of the court.

Reversed and remanded.

Appeal from Circuit Court, Leon County; J. B Johnson, Judge.

COUNSEL

H. H Wells, B. K. Roberts, and William K. Whitfield, all of Tallahassee, for appellant.

Walter & Meginniss and LeRoy Collins, all of Tallahassee, Emmet Safay, of Jacksonville, Cary D. Landis, Atty. Gen. W. P Allen, Asst. Atty. Gen., and Edward S. Hemphill, of Jacksonville, for appellees.

Nathan J. Roberts, of Jacksonville, amici curiae.

OPINION

Statement by CHAPMAN, Justice.

On September 21, 1937, plaintiff filed his bill of complaint in the circuit court of Leon county, Fla., against J. M. Lee, as comptroller of the state of Florida, and Frank Stoutamire, as sheriff of Leon county, Fla., and sheriffs of many other counties of Florida, seeking a restraining order against the defendants. It is alleged in the bill of complaint, among other things, that the plaintiff, subsequent to the enactment of chapter 17257, Acts of 1935, session of the Legislature, purchased and otherwise became the owner of 2,305 slot machines as defined in supra at an approximate cost of $150,550, and the machines are situated in the county of Leon and other counties of Florida; that a fair market value of said property is the sum of $56,300. The plaintiff has paid, or caused to be paid, state, county, and municipal operator's and occupational licenses and state ad valorem taxes required to be paid under the laws of Florida which permit and authorize the operation thereof, inclusive of the machines situated in Leon county, until October 1, 1937.

The plaintiff further alleges that the Legislature of the state of Florida, at its 1937 session, enacted Senate Bill No. 399, chapter 18143 and by section 1 thereof it was made unlawful:

'(a) To manufacture, own, store, keep, possess, sell, rent, lease, let on shares, lend or give away, transport, or expose for sale or lease, or to offer to sell, rent, lease, let on shares, lend or give away, or permit the operation of, or for any person to permit to be placed, maintained, or used or kept in any room, space, or building owned, leased or occupied by him or under his management or control, any slot machine or device or any part thereof as hereinafter defined; or

'(b) To make or to permit to be made with any person any agreement with reference to any slot machine or device as hereinafter defined, pursuant to which the user thereof, as a result of any element of chance or other outcome unpredictable to him, may become entitled to receive any money, credit, allowance, or thing of value or additional chance or right to use such machine or device, or to receive any check, slug, token or memorandum entitling the holder to receive any money, credit, allowance or thing of value.' And by section 2 thereof defines under the terms of said act a slot machine, section 2 being:

'Any machine or device is a slot machine or device within the provisions of this Act if it is one that is adapted, for use in such a way that, as a result of the insertion of any piece of money or coin or other object such machine or device is caused to operate or may be operated, and by reason of any element of chance or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, credit, allowance or thing of value, or any check, slug, token or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance or thing of value, or which may be given in trade, or the user may secure additional chances or rights to use such machine, appartus or device, even though it may, in addition to any element of chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise, indication of weight, entertainment or other thing of value.'

Section 6 of this act provides for a forfeiture of the said property described in section supra, and otherwise provides for the seizure of such money, if any, appearing therein at the time of seizure.

Section 12 thereof being: 'This Act shall take effect and become operative on the 1st day of October, A. D. 1937.' It is alleged that the sheriff of Leon county, and other officers, unless restrained under Senate Bill No. 399 enacted by the 1937 session of the Legislature, will seize and confiscate the machines of the plaintiff situated in Leon county immediately upon October 1, 1937, the plaintiff will not have an opportunity to move or transport the machines to other sections of the United States prior to the contemplated seizure by the sheriff under the acts supra; that it is not the intention of the plaintiff to operate or display said machines but in each particular to comply with Senate Bill No. 399.

The plaintiff upon notice applied for writs of injunction against said defendant and upon a hearing before the lower court an order was made sustaining a motion to dismiss as to the Comptroller J. M. Lee. Likewise, the court sustained and did enter an order of dismissal of the bill of complaint in behalf of Frank Stoutamire, as sheriff of Leon county, Fla. An appeal was taken from the order of dismissal and the cause is here for a review of the order of dismissal entered by the lower court. An application of plaintiff for a constitutional writ of injunction was issued pursuant to article 5 of section 5 of the Constitution of Florida, directed to Frank Stoutamire, as sheriff of Leon county, Fla., restraining and enjoining him from any interference with or the removal of said machines until the further order of the court.

WHITFIELD Justice.

The first provision in the State Constitution is that: 'All men are equal before the law, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing happiness and obtaining safety.' Section 1, Declaration of Rights.

Section 4 of the Declaration of Rights provides that:

'All courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay.'

Chapter 17257, Acts of 1935, commonly known as the Slot Machine Act, made it unlawful to 'set up for operation, operate, lease, or distribute for the purpose of operating, any coin-operating device as defined in the Act, [Section Two of this Act] without first having obtained a license therefor.' Section 1. The 'Act, however, does not apply to machines or devices being displayed or demonstrated by manufacturers, distributors, salesmen and agents for sales purposes.' Other provisions of the act prescribe the method of obtaining a license for the operation of the described machines or devices and the amounts to be paid for the operation of the machines or devices. A violation of any of the provisions of the act is made a criminal offense punishable by a fine or imprisonment in the county jail or by both fine and imprisonment.

In this case the machines are by the state, under chapter 17257, licensed to be operated until midnight of September 30, 1937, and the tax for that period was exacted by the state.

An injunction was sought in the trial court to restrain the threatened seizure by the sheriff of the machines immediately upon the expiration of the license period at 12 o'clock p. m., September 30, 1937, under the provisions of the act of 1937, Senate Bill No. 399, approved by the Governor, May 29, 1937, to become effective 'on the 1st day of October, A. D. 1937,' which act is sufficiently set out in the statement.

The principal question presented is whether the sheriff may lawfully seize the slot machines, as for a violation of chapter 18143, Acts of 1937, Senate Bill No. 399, immediately at the expiration of the license period at 12 o'clock p. m., September 30, 1937, without giving a reasonable opportunity to remove the machines from the state, when no unlawful use of the machines in the state is threatened.

The act of 1935 authorized the licensing of the machines upon the payment of the license taxes, thereby recognizing them as private property and authorizing their possession and operation in this state. The act of 1937 does not expressly repeal the act of 1935, but does provide that 'the right of property in and to any machine, apparatus or device as defined' in the act of 1935, 'is hereby declared not to exist in any person, association of persons, or corporations, and the same shall be forfeited.' There is no express or fairly implied provision in the act of 1937 that seizures of the machines shall be made immediately if the possession of the machines continues after midnight September 30, 1937, without giving a reasonable opportunity to bona fide remove the machines from the state after the hour the licenses expire. Criminal prosecutions follow the seizure of the slot machines after September 30, 1937. The statute contemplates the removal of the machines from the state after the...