Gillooley v. Vaughn

• Decision Date: 22 November 1926
• Citation: 110 So. 653,92 Fla. 943
• Parties: GILLOOLEY v. VAUGHN et al.
• Court: Florida Supreme Court

110 So. 653

92 Fla. 943

GILLOOLEY v. VAUGHN et al.

Florida Supreme Court, Division B.

November 22, 1926

Suit by J. J. Gillooley against E. D. Vaughn and others for an injunction. From a judgment sustaining a demurrer to the bill and dismissing it, complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Giving municipal corporations legislative power to prohibit and punish any act made penal by state laws is not improper; that ordinance prescribes same penalties as state law for commission of same act does not render it invalid; that offender may be punished for same act under both ordinance and state law does not render ordinance invalid; that conviction or acquittal under ordinance or state law is no bar to prosecution under other does not render ordinance invalid; that trial for violation of ordinance is without jury does not render it invalid (Declaration of Rights, § 12; Const. art. 3, § 1; St. Petersburg City Charter [Sp. Acts 1913, c. 6772, § 2, subd. f, and section 24]; Rev. Gen. St 1920, §§ 1839, 5491). There is no impropriety, from a constitutional standpoint, in clothing our municipal government with legislative power to prohibit and punish by ordinance any act made penal by the state laws, when perpetrated within municipal limits; and it is no objection to such an ordinance that it prescribes the same penalties as the state law for the commission or omission of the same act or that the offender may be tried and punished for the same act under both the ordinance and the state law, or that a conviction or acquittal under the one is no bar to prosecution under the other; and it is no objection to the municipal ordinance that the trial thereunder is without a jury. In avoidance of the theory that such a status of the law subjects the offender to the constitutionally inhibited second jeopardy and punishment for the same offense, the question is assimilated to the dual trials and punishments the one in the federal courts, the other in the state tribunals, that follow the same act when it infracts both a state law and congressional legislation.

Ordinance classifying moving picture shows with cabarets and dances for Sunday legislation held not unjust and unreasonable. The classification of moving picture shows with cabarets and dances held not to be unjust and unreasonable.

Appeal from Circuit Court, Pinellas County; Freeman P. Lane, judge.

COUNSEL

James F. Bickers, of St. Petersburg, for appellant.

Booth & Hobson and A. S. Bradley, all of St. Petersburg, and Mabry, Reaves & Carlton, of Tampa, for appellees.

OPINION

BUFORD J.

The appellant filed bill of complaint in the court below, seeking to restrain the appellee as chief of police of the city of St. Petersburg from enforcing against the appellant the provisions of Ordinance No. 422a of the city of St. Petersburg, which ordinance forbids any person, firm, or corporation, owner, lessee, manager, employee, or volunteer worker to carry on or participate in the business or occupation of a moving picture show, moving picture theater, cinema film display, theater, cabaret, or public dance on Sunday, and which ordinance also defines Sunday to mean from 12 o'clock midnight at the end of the calendar day Saturday, and extending through the 24-hour day Sunday, and ending at 12 o'clock midnight of the calendar day Sunday.

There was a demurrer interposed to the bill. The demurrer was sustained and the bill dismissed. The demurrer was general, but contained several grounds. The reason which prompted the court below to sustain the demurrer and dismiss the bill is not material here. The question here presented is whether or not the bill of complaint should have been held to be good against a general demurrer for want of equity. The allegations of the bill:

That the defendant in the court below would, 'unless restrained by this honorable court, arrest him, his employees, and close his place of business. That this threatened prosecution and arrest and interference with complainant's business is the beginning of numerous others that will follow at the instance of the defendant, and he had informed your orator that unless he desist from opening his said moving picture theater on Sunday, he will repeatedly arrest him and his employees and confine him to the city jail, and, unless enjoined by this honorable court, he will carry out his said threats and work irreparable injury upon the complainant and his property rights, in that he will lose a large income derived from carrying on the legitimate business of operating moving picture shows, and that he will have no adequate remedy at law, because the said defendant Vaughn is insolvent, and a judgment had against him cannot be collected.

'Furthermore, he would have no adequate redress at law, because of the fact that the damages recoverable in a trespass of such character would be the profits arising from conduct of such business, and such profits would be so speculative and conjectural as not to be ascertainable or allowed in a court of law,'

--are sufficient to differentiate this case from that of Rawis v. City of Miami et al., 82 Fla. 65, 89 So. 351, and to give the appellant the right to have his complaint heard by a court of equity.

Validity of the ordinance is challenged on eight grounds, as follows:

'(a) Said alleged ordinance or by-law is violative of section 12 of the declaration of rights adopted by the convention of 1885, providing that no person shall be ' * * * deprived of life, liberty or property without due process of law; nor shall private property be taken without just compensation.'

'Your orator would show that the closing of his moving picture show and his arrest is a deprivation of his liberty and of his property without due process of law, and is a taking of his private property without compensation.

'(b) Said alleged by-law or ordinance is violative of section 1 of article 3 of the Constitution of the state of Florida, providing that the 'legislative authority of this state shall be vested in a Senate and a House of Representatives, which shall be designated, 'the Legislature of the State of Florida,' and the sessions thereof shall be held at the seat of government of the state.'

'Said alleged by-law or ordinance is invalid in this respect, because it seeks to set up as an offense an act permitted under the state law.

'(c) Said alleged by-law or ordinance is invalid in that the said alleged by-law or ordinance is arbitrary discrimination between the inhabitants of this city, in that in said alleged ordinance it is sought to prohibit moving picture theaters, cinema film display, theaters, cabarets, or public dances on Sunday, when other businesses or professions are not prohibited or interfered with.

'(d) Said alleged ordinance or by-law is illegal and void in that the city of St. Petersburg, acting through its commissioners or legislative authority is not authorized to pass such an ordinance. In said legislative act creating the charther of the city of St. Petersburg there is no express authority to pass any laws with respect to business or professions on Sunday, and the operation of moving picture shows on Sunday is not within the general or implied powers granted by the Legislature to the municipalities.

'(e) Said alleged ordinance or by-law is illegal and void, in that said ordinance or by-law seeks to alter or change a well-settled principle of the common law and law of this state, as established by the Supreme Court, and to establish a rule interfering with the rights of the individual and the public, in that the common law and the law of this state, as construed by the Supreme Court, has defined Sunday in the sense in prohibitory acts to be from sunrise to sunset, whereas the said alleged by-law or ordinance seeks to establish Sunday as from 12 o'clock Saturday night until 12 o'clock Sunday night.

'(f) Said alleged by-law or ordinance is invalid and void, in that under the charter of the city of St. Petersburg it is provided that the title of every ordinance shall be clearly set out, and no ordinance except one making appropriations shall contain more than one subject, whereas the said alleged ordinance is not one making appropriations, and does contain more than one subject, to wit, moving picture shows, moving picture theaters, cinema film displays, theaters, cabarets, or public dances on Sunday.

'(g) Said alleged by-law or ordinance is invalid in that it is an unjust, unreasonable classification of the moving picture show with the cabarets and dance halls.

'(h) Said alleged by-law or ordinance is void, in that it is provided in said charter, section 69 thereof, that the board of commissioners shall pass ordinances or resolutions only by taking the ayes and noes, which shall be entered in its minute book, and your orator avers that said ordinance was not passed by the taking of the ayes and noes, but, on the contrary, by a viva voce vote.'

The appellant alleged in his bill that:

'He is the owner of a certain moving picture theater and showhouse, including the property thereof, located on lot 140, First Street North, in the city of St. Petersburg, in Pinellas county, Fla. He has owned the said building for years, and has and is engaged in exhibiting pictures, known as moving pictures, regularly at night to a large patronage. He has a large amount of money invested in said property site, and equipment, and is expending large sums in pursuit of his using and displaying instructive moving pictures, and it is necessary to keep said house running continuously in order to reap a reasonable profit from the ownership and use of said property. Anything that deprives him of the use thereof is a deprivation and denial of valuable rights of...