Lee v. City of Birmingham, 6 Div. 866.

• Decision Date: 11 June 1931
• Docket Number: 6 Div. 866.
• Citation: 135 So. 314,223 Ala. 196
• Parties: LEE ET AL. v. CITY OF BIRMINGHAM.
• Court: Alabama Supreme Court

135 So. 314

223 Ala. 196

LEE ET AL. v. CITY OF BIRMINGHAM.

6 Div. 866.

Supreme Court of Alabama

June 11, 1931

Appeal from Circuit Court, Jefferson County; Rodger Snyder, Judge.

Suit for condemnation of slot machines by the City of Birmingham against Robert E. Lee and another. From a decree overruling a demurrer to the bill, respondents appeal.

Reversed rendered, and remanded.

See also, 221 Ala. 419, 128 So. 902.

Chas W. Greer, of Birmingham, for appellants.

Wilkinson Burton & Wilkinson, of Birmingham, for appellee.

FOSTER J.

The bill in equity was filed by the city of Birmingham to condemn as contraband certain slot machines alleged to be gambling devices seized by the police department of the city under authority of its ordinances, and for the recovery of which the respondents had begun separate actions at law. The bill alleges that they were kept or operated in violation of Ordinance No. 1104-C of the city of Birmingham. The particular description of the machines is somewhat confused, and does not correspond in some detail with that set out in the ordinance, but they are alleged to be machines operated as gambling devices. The ordinance in question prohibits the operation of "any automatic merchandise or commodity vending or dispensing machine so designed or constructed that there shall be an element of chance," etc.

By state law it is made a criminal offense to set up or operate a wheel of fortune, slot machine, or device of chance (section 4248), also any gift enterprise. Section 4247. Slot machines by which goods are distributed in amounts or values determined by chance, and therefore gambling devices, are prohibited by those statutes. Loiseau v. State, 114 Ala. 34, 22 So. 138, 62 Am. St. Rep. 84; State v. Shugart, 138 Ala. 86, 92, 93, 35 So. 28, 100 Am. St. Rep. 17.

The city had the undoubted right to enact similar ordinances. Mitchell v. City of Birmingham (Ala. Sup.) 133 So. 13; Acts 1915, p. 296, § 6; Code, § 1992.

Section 2049, Code, enacts that cities may restrain and prohibit gaming, and by ordinance provide for the seizure of gambling instruments on certain conditions. They are also given authority to enjoin and abate public nuisances injurious to health, morals, comfort, or welfare of the people. Sections 2055, 9298.

Places where devices are kept for the purpose of permitting persons to gamble with them are declared by statute to be common nuisances, and may be abated in equity by the state. Section 4281, Code.

It is held by respectable authority that, if a gambling device is prohibited by statute, its operation may be considered a nuisance, and abated upon proper proceedings. 46 Corpus Juris, 707; Stanley-Thompson Liquor Co. v. People, 63 Colo. 456, 168 P. 750; Mullen & Co. v. Moseley, 13 Idaho, 457, 90 P. 986, 12 L. R. A. (N. S.) 394, 121 Am. St. Rep. 277, 13 Ann. Cas. 450; Lang v. Merwin, 99 Me. 486, 59 A. 1021, 105 Am. St. Rep. 293.

It is our opinion that the statutes and principles to which we have referred clearly intend to authorize a proceeding in equity to abate and condemn as contraband machines whose nature is such that they were intended to be and are used as gambling devices or gift enterprises.

It may be conceded that the chief of police of the city could set up in defense of the detinue suit the matters alleged in the bill, and thereby defeat a recovery. Stanley-Thompson Liquor Co. v. People, supra.

But the bill has independent equity to the extent that it seeks to declare the gambling devices contraband and abate their use and to have them destroyed, as nuisances in violation of laws and ordinances enacted for the benefit of the morals of the people. With such independent equity, and in order that full relief may be decreed, it is quite appropriate to enjoin the action at law for the recovery of the property. Elliott v. Kyle, 176 Ala. 167, 57 So. 752; Rosebrook v. Baker, 151 Ala. 180, 183, 44 So. 198; 32 Corpus Juris, 63.

The question of multifariousness is presented by the demurrer in this case. There are two individuals with no connection in respect to their transactions. Each is alleged to have operated machines alleged to be gambling devices. The machines have different names, are not alleged to have any similarity except that they are both gambling devices. Those of one were seized January 12, 1929, and of the other November 1, 1929. Each defendant has filed a separate suit in detinue for the recovery of his alleged property. The injunction bonds and writs are each separate, as though there was no connection. In fact, no connection is alleged or shown, except that each is charged with operating at a different time and place a nuisance consisting of a machine which is a gambling device. They are both controlled by the same principles of law. But the facts and transactions are not the same, and have no connection with each other. The machines of one may be shown by the proof to constitute a nuisance, and those of the other may not. Each is an entirely separate, distinct transaction between different parti...