Eccles v. Stone

• Decision Date: 20 September 1938
• Citation: 134 Fla. 113,183 So. 628
• Parties: ECCLES v. STONE, Sheriff.
• Court: Florida Supreme Court

183 So. 628

134 Fla. 113

ECCLES v. STONE, Sheriff.

Florida Supreme Court, Division A.

September 20, 1938

Suit by Byron J. Eccles against S.E. Stone, as Sheriff of Volusia County, to restrain the defendant from seizing certain machines which the defendant proposed to seize as unlawful coin-operated devices. From an order denying temporary restraining order, the plaintiff appeals.

Affirmed. Appeal from Circuit Court, Volusia County; Geo Wm. Jackson, judge.

COUNSEL

Walter A. Shelley and Grant & Luther, all of Daytona Beach, and Talbot Whitfield, Jr., of Tallahassee, for appellant.

George Couper Gibbs, Atty. Gen., Tyrus A. Norwood, Asst. Atty. Gen and Murray Sams, State Atty., of De Land, for appellee.

Hyman B. Sobol, of Gainesville, amicus curiae.

OPINION

BUFORD Justice.

The appeal brings for review order of Circuit Judge denying temporary restraining order sought to restrain Stone as Sheriff from seizing certain coin-operated machines which the Sheriff proposed to seize as unlawful coin-operated devices denounced by Chapter 18143, Acts of 1937.

It is first contended that the machines are not such as to fall within that class of coin-operated machines condemned and prohibited by Chapter 18143, supra. The machines involved in this case are described in the bill of complaint as follows:

'That said machines consist of a rectangular box with a glass top and are operated in the following manner: a coin is deposited by the player, which releases the operating mechanism so that small balls or marbles are made available for playing at the lower end of the table; one ball or marble at a time is deposited in front of a plunger, the plunger is pulled back by the player and upon being released strikes against the marble or ball in the same manner as a billiard cue strikes a billiard ball; the marble or ball, upon being propelled by the plunger, travels around the face of the machine; the direction and speed of the marble is determined by the skill of the player in operating the plunger; the object of the game is to cause the marble or ball to roll into holes or to strike bumpers with the highest numbers, which are distributed over the face of the machine, so as to run up a high score, which score increases relative to the skill of the player; hazards also appear on the face of the machine in the form of small nails, springs and resilient rails; that said machines emit no money or slugs or any articles of any kind, nor do they pay off in any manner.'

Then follows the further allegation:

'Nor are they adapted for use in such way that as a result of the insertion of any piece of money or coin such machine or game 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 or value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value, or which may be given in trade, nor may the user secure additional chances or rights to use such machine; that said Plaintiff does not allow, permit or suffer said machines to be played for gaming or gambling purposes by any person or persons, for money or other valuable consideration; that there is no unpredictable outcome or element of chance involved in the Plaintiff's machines so far as the return of value for the coin inserted therein is concerned, for the reason that, for each insertion of a coin, each user receives identically the same thing and knows in advance what he is to receive, to-wit: an opportunity to try his skill for a certain amount of amusement.'

The first quoted allegations show that the machines are of the same class and character as the 'marble pin games' which we had under consideration in the case of Weathers v. Williams, as Sheriff, 182 So. 764, and as to which we said [page 769]:

'Now, if the machine is adapted for use in such a way that by reason of the result of the operation as hereinbefore mentioned involving the element of chance and an unpredictable result, the user may become entitled to receive any money, thing of value or other things mentioned in the section, then the machine falls within the purview of section 2 of the Act. The meaning of the word 'adapted' is important. Webster's New International Dictionary defines 'adapt' to mean 'to make suitable; to fit or suit; to adjust; to alter so as to fit for a new use; to render fit by changing, to meet the demands of a new environment.'

'So, if we transpose the statute eliminating the word 'adapt' and insert 'to render fit' the language used would be: 'any machine or device is a slot machine or device within the provisions of this Act if it is one that is fit or rendered fit 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' etc. It appears to us that there can be no serious question but that the machines described are by the operation thereof rendered fit for the determination by the element of chance and unpredictable result to entitle the player to receive a pay-off or wager and that, therefore, the third element exists in the machine which brings it within the purview of the statute and makes it obnoxious to paragraph (a) of Section 1 of the statute. So operating the machine would bring the operation within purview of paragraph (b) of Section 1 of the statute and would bring those participating in such operating within the purview of that paragraph of Section 1.'

The latter quoted allegations which are mere conclusions not in harmony with the description of the operation of the machine are not sufficient to show that the machines are not such as are 'adapted for use in such a way that by reason of the result of the operation as hereinbefore mentioned involving the element of chance and an unpredictable result, the user may become entitled to receive any money, thing of value or other things mentioned in the section', or that they are not 'by the operation thereof rendered fit for the determination by the element of chance and unpredictable result to entitle the player to receive a pay-off or wager'. These elements are clearly shown to exist by the allegations describing the operation and the registration of the score automatically resulting from the operation, which score is largely, if not entirely, the result of chance and absolutely unpredictable by the player or anyone else.

So we hold that the machines involved come within those prescribed by Chapter 18143, supra.

It is next contended that if the provisions of Chapter 18143, Acts of 1937, are applicable to the machines involved in this case the Act insofar as it applies to such machines is null and void because it violates the provisions of Sections 1 and 12 of the Declaration of Rights of the Constitution of Florida and the Fourteenth Amendment of the Federal Constitution, U.S.C.A.Const. Amend. 14.

The validity of the Act rests upon the prerogative of the legislature to enact laws in the exercise of the police power of the State.

'The police power of the state inheres in its sovereignty, and is subject only to applicable provisions of the federal and state Constitutions designed to protect private rights from arbitrary and oppressive governmental action.' Everglades Sugar & Land Co., etc. v. Bryan et al., 81 Fla. 75, 87 So. 68.

'The possession and enjoyment of all rights are subject to the police power, and property of every kind, including contract rights, and rights in things intangible as well as tangible, is held subject to general regulations which are necessary for the common good and general welfare.' State ex rel. Davis v. Rose et al., 97 Fla. 710, 122 So. 225, 226. See, also, Whitaker v. Parsons, 80 Fla. 352, 86 So. 247.

There are two rules which must be observed when courts are called upon to determine the constitutionality of statutes. The first is that if there is any doubt as to the constitutionality of the act such doubt must be resolved in favor of its validity. The second rule is that in the exercise of the police power the sovereignty may enact such laws as are needful to protect certain inalienable rights of the public among others that are of good morals.

In arriving at a conclusion as to whether or not legislation enacted in the exercise of police power is needful for the protection of the moral welfare of the community, the courts should look to the history back of the legislation and should take notice of those things which are of common knowledge throughout the country. A short bit of history behind the enactment of Chapter 18143, supra, is that in recent years legislation in Florida is tended toward the relaxation of statutes prohibiting gambling. That tendency reached its peak when the legislature of 1935 legalized the operation of all sorts of slot machines or coin-operated gambling devices. Acts 1935, c. 17257. The act provided that the operation of such devices could be stopped in any county by a majority vote of the electors under prescribed conditions. Within two years the operation of slot machines in Florida had become so obnoxious to the citizens of this State that the people of a great majority of the counties in the State had voted overwhelmingly to prohibit the operation of all slot machine devices licensed under the 1935 Act being operated thereafter in their respective counties, and a great majority of the members of the legislature of 1937 were pledged to their constituency to enact laws which would abolish the operation of slot machines in Florida. The opposition to slot machines was the direct...