Pasternack v. Bennett

• Court: United States State Supreme Court of Florida
• Citation: 190 So. 56,138 Fla. 663
• Parties: PASTERNACK v. BENNETT et al.
• Decision Date: 23 June 1939

190 So. 56

138 Fla. 663

PASTERNACK v. BENNETT et al.

Florida Supreme Court, Division A.

June 23, 1939

Error to Circuit Court, Broward County; George W. Tedder, Judge.

Suit for injunction by John Pasternack against E. R. Bennett and others. To review an order denying a temporary injunction the plaintiff brings error.

Affirmed.

COUNSEL Bart A. Riley, of Miami, and Wm. C. Mather, of Hollywood, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for defendants in error.

OPINION

BUFORD Justice.

The appeal brings for review order of the Circuit Court of Broward County, as follows:

'This cause came on this day to be heard before me upon bill for temporary injunction and the plaintiff and defendants were represented by their respective counsel and the Court having heard the argument of counsel, and counsel asserting that the only question involved at this stage of the proceedings is the question of the Constitutionality of Chapter 18143, Acts of 1937, both as to the insufficiency of the title of said Act and as to Section 6, and that the Act is invalid because it makes unlawful the mere possession of the machines described in the bill,

'It is, therefore, ordered and adjudged that the application for temporary injunction be and the same is hereby denied.

'It is further considered by the Court and agreed to by counsel that no other question except the Constitutionality of said Chapter 18143 will be raised in the Supreme Court.

'It is thereupon ordered, adjudged and decreed that the plaintiff be allowed Ten (10) days within which to apply to the Supreme Court of the State of Florida for a supersedeas.

'Done and ordered at Ft. Lauderdale the 7th day of April, 1939.

'George W. Tedder

'Judge.'

The Order was made in a suit for injunction seeking to restrain the forfeiture of certain slot machines and money and other things of value therein under authority of Section 6 of Chapter 18143, Acts of 1937.

The sole question presented to us is,

Whether or not the provisions of Section 6, supra, which reads as follows: 'Section 6. The right of property in and to any machine, apparatus or device as defined in Section 2 of this Act and to all money and other things of value therein, is hereby declared not to exist in any person, association of persons or corporations, and the same shall be forfeited and such money or other things of value shall be forfeited to the County in which the seizure was made and shall be delivered forthwith to the Clerk of the Circuit Court and shall by him be placed in the fine and forfeiture fund of said County', are within the purview of the title of the Act as required by Section 16 of Article III of our Constitution.

The title of the Act is as follows: 'An Act Making It Unlawful to Manufacture, Own, Store, Keep, Possess, Sell, Rent, Lease, Let, Lend, Give Away, Use or Operate Slot Machines or Similar Devices Operated By Coin or Otherwise; Defining Such Devices; Providing For Their Seizure and Destruction and Providing For the Forfeiture of Money and Other Things of Value Therein; Providing When Possession and Operation Shall Be a Nuisance; Providing Liens on Buildings and Property in or Upon which Said Devices Shall Be Possessed, Maintained or Operated; Providing For Injunctions Restraining Operation, Removal or Possession of Same and Prescribing the Penalties For the Violation of the Provisions of This Act.'

Section 16 of Article III of our Constitution is as follows: 'Section 16. Each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be amended or revised by reference to its title only; but in such case the act, as revised, or section, as amended, shall be re-enacted and published at length.'

The several provisions of the legislative Act here under consideration have heretofore been considered by this Court and the Act held valid and effective as against the challenges presented in those cases. See Weathers v. Williams, 133 Fla. 367, 182 So. 764; Bechtol v. Lee, 129 Fla. 374, 176 So. 265; Eccles v. Stone, Fla., 183 So. 628, 630.

It may not be necessary to repeat here that it is definitely settled in this jurisdiction that those devices commonly known as slot machines are gambling devices; that the use and operation of them has a baneful influence on the persons who indulge in playing them and that they constitute such a menace to public welfare and public morals as to be subject to the police power of the State to regulate, control, prohibit or destroy them.

In the Eccles case, supra, we quoted, inter alia, the following:

"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.'

And said:

'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.'

We also quoted with approval from the case of Bobel v. People, 173 Ill. 19, 50 N.E. 322, 64 Am.St.Rep. 64, saying:

"'And we are of the opinion that it was the purpose of the legislature in enacting this statute, not only to suppress the use of these gambling devices, or the keeping of them for gambling purposes, but also to prohibit the ownership or the keeping of them, whether for gambling purposes or not; otherwise, why make it a criminal offense to own or keep them, without qualification as to the purpose of such ownership or keeping, and why provide for their seizure and destruction?'

"That, we think, is what was intended by the language of our statute, whose words, in this connection, we have quoted. We think it is clear that for the purpose of preventing the use of a device for gambling the Legislature may prohibit its possession or ownership, when it is designed for that purpose. The statute does not make its intended use for gambling a prerequisite.'

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