Merry-go-round, Inc. v. State Ex Rel. Jones

• Decision Date: 07 February 1939
• Citation: 136 Fla. 278,186 So. 538
• Parties: MERRY-GO-ROUND, Inc. v. STATE ex rel. JONES.
• Court: Florida Supreme Court

186 So. 538

136 Fla. 278

MERRY-GO-ROUND, Inc. v. STATE ex rel. JONES.

Florida Supreme Court

February 7, 1939

Suit by the State, on the relation of Vincent U. Jones, against the Merry-Go-Round, Inc., and others, to restrain operation of a place known as 'The Merry Go Round' on the ground that it was being used for gambling and constituted a nuisance. From a decree denying motion to dismiss bill of complaint, the defendants appeal.

Affirmed. Appeal from Circuit Court, Dade County; Arthur Gomez, Judge.

COUNSEL

J. H Swink, of Miami, for appellants.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for the State.

Ernest E. Roberts, of Miami, and Whitfield & Whitfield, of Tallahassee, for appellee.

OPINION

TERRELL Chief Justice.

In August, 1938, Vincent U. Jones filed his bill of complaint in the Circuit Court of Dade County pursuant to Section 5029 Compiled General Laws of 1927, praying that appellants as defendants, be restrained from operating that certain place known as 'The Merry Go Round', on the ground that it was being used for the purpose of gambling and constituted a nuisance. A Motion for temporary injunction and to dismiss the bill of complaint were denied and this appeal was prosecuted but limited to the decree refusing to dismiss the bill of complaint.

It is contended that the motion to dismiss should have been granted because the bill of complaint is devoid of equity and because Section 5029, Compiled General Laws of 1927, is unconstitutional and void.

Section 5029, Compiled General Laws of 1927, is as follows:

'Whenever any nuisance as defined in section 7832 is kept, maintained or exists the State's attorney, county solicitor, county prosecutor, or any citizen of the county through any attorney he may select, may maintain his action by bill in chancery in the proper court in the name of the State of Florida upon the relation of such attorneys or citizen to enjoin said nuisance, the person, or persons conducting or maintaining the same and the owner or agent of the building or ground upon which said nuisance exists.'

Appellants admit that the constitutional validity of this act was assailed and upheld in Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51, but they say the grounds on which it is now challenged were not raised in that case and therefore may be appropriately raised at this time. It is quite true that an act may be upheld at one time on a given state of facts and may at a later date be stricken down on a different state of facts that were not drawn to the attention of the Court in the first consideration.

The pith of appellant's contention on this consideration is that the trial of this case amounts to a judicial investigation and determination of the fact of whether or not defendants have committed a felony and being of that character, the investigation can only be instituted by information sworn to by the County Solicitor of Dade County; it can not be instituted legally by a private citizen as was done in this case.

If we admit appellants' premise, we would likely be driven to its conclusion. Section 7832, Compiled General Laws of 1927, defines as a nuisance any booth, house, tent, building or place where prostitution, assignation, lewdness, games of chance, or gambling are conducted in violation of the law, and Section 5029, Compiled General Laws of 1927, provides that any State Attorney, County Solicitor, County Prosecutor, or any citizen may maintain in the name of the State a bill in equity to enjoin such nuisances.

The fault with appellants' logic is that it does not distinguish between the felony and the place where the felony was committed. It may be that in some instances, the acts that aid in or constitute the nuisance will amount to a felony but the nuisance has reference to the place or rem used illegally rather than the act committed. The use of the place or rem illegally is the thing authorized to be enjoined under Section 5029, Compiled General Laws of 1927. If the act constituting the nuisance happened to be a felony and was being prosecuted, certainly that could only be reached by information sworn to by the County Solicitor, but when the purpose is to reach the rem or the place and suppress that, it may be done by bill in equity in the name of any one of the officers named or by a private citizen.

Suppressing the place constituting a nuisance is a very different matter from prosecuting criminally those who commit felonious acts contributory to it, but the fact that the nuisance is abated by bill in equity is no bar to prosecution of those guilty of a felony contributing to it. This question was conclusively settled in the well considered opinion in Pompano Horse Club v. State, supra, and while the questions raised here were not directly presented in that case, they were indirectly involved and were by inference settled by it.

In both the majority and the minority opinion in the last cited case, it was in terms announced that a bill in equity to suppress a nuisance was not a bar to prosecution for illegal acts appertaining to the nuisance. In an exhaustive note beginning on page 1474 of 5 A.L.R., it is pointed out that this rule prevails in every State in the union except perhaps New Jersey. The scope of the power of courts of equity to suppress nuisances both inherently and when conferred by statute is discussed at length in the note just cited. Unless conferred by statute, the exercise of that power has often been limited to cases of interference with property rights. Ex parte Edward T. Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764.

It would be a sad commentary on our system of jurisprudence to now hold that nuisances affecting the health, morals, welfare and manners of a community could not be suppressed at the instance of a private citizen when that very thing has been done under the common law for more than three hundred years and is approved by practically every State in the union. The State is a party to such proceedings, and they are recognized as being employed for a very wholesome purpose. They are conducted under different procedure from a criminal prosecution, are directed to the place rather than the perpetrator of the act, and are not conclusive as to individual guilt.

This holding does not do violence to the well settled equitable principle that injunction will not lie to enjoin...