Pompano Horse Club, Inc. v. State

• Citation: 111 So. 801,93 Fla. 415
• Parties: POMPANO HORSE CLUB, Inc., et al. v. STATE ex rel. BRYAN.
• Decision Date: 09 March 1927
• Court: United States State Supreme Court of Florida

111 So. 801

93 Fla. 415

POMPANO HORSE CLUB, Inc., et al. v. STATE ex rel. BRYAN.

Florida Supreme Court

March 9, 1927

En Banc.

Suit by the State, on the relation of John M. Bryan, against the Pompano Horse Club, Incorporated, and others, for an injunction to abate a public gambling nuisance. From an order overruling a demurrer to the complaint and granting a temporary injunction, defendants appeal.

Affirmed.

Ellis C.J., and Buford, J., dissenting.

Syllabus by the Court

SYLLABUS

Employed between two terms describing different subjects of power 'or' usually implies discretion if it occurs in directory provision, and choice between two alternatives if it occurs in permissive provision. Employed between two terms which describe different subjects of a power, the word 'or' usually implies a discretion when it occurs in a directory provision, and a choice between two alternatives when it occurs in a permissive provision.

State in suppressing what it is free to regard as public evil may adopt reasonable measures deemed necessary. When a state exerting its recognized authority, undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective.

Public is complainant in suit by private citizen in name of state to enjoin public nuisance. When authority is properly conferred upon a private citizen to bring a suit in equity, in the name of the state, for the purpose of suppressing by injunction a public nuisance, the suit is in effect one instituted in behalf of the public, and in which the public is the real complainant, to the same extent as though the suit was brought by the Attorney General or public prosecutor.

Citizen affected may sue in state's name to enjoin public nuisance without first requesting officers to sue and showing refusal (Rev. Gen. St. 1920, § 3223). Under the provisions of section 3223, Rev. Gen. Stats. 1920, a private citizen of the county affected may institute a suit in equity, in the name of the state, to suppress a public nuisance, without first requesting the public officers therein named to bring the suit, and without showing a refusal on the part of such officers so to do.

Suit to enjoin as public nuisance operation or maintenance of premises for gambling or games of chance does not deprive of right to jury trial (Rev. Gen. St. 1920, § 3223; Declaration of Rights, § 3). A proceeding by suit in equity, pursuant to section 3223, Rev. Gen. Stats. 1920, to suppress by injunction, as a public nuisance, the operation or maintenance of premises where gambling or games of chance are engaged in in violation of law, does not deprive the defendant in such suit of a right to trial by jury as secured by the Constitution.

Enjoining operation or maintenance of premises for gambling or games of chance does not deprive of property without due process of law (Rev. Gen. St. 1920, § 3223). The rendition of a decree against the defendant in a proceeding, pursuant to section 3223, Rev. Gen. Stats. 1920, to suppress by injunction as a public nuisance the operation or maintenance of premises where gambling or games of chance are engaged in in violation of law, does not operate to deprive the defendant of property without due process of law.

Enjoining operation or maintenance of premises for gambling or games of chance does not take private property for public use without just compensation (Rev. Gen. St. 1920, § 3223). The rendition of a decree against the defendant in a proceeding by suit in equity, pursuant to section 3223, Rev. Gen. Stats. 1920, to suppress by injunction, as a public nuisance, the operation or maintenance of premises where gambling or games of chance are engaged in in violation of law, does not constitute a taking of private property for public use without just compensation.

Enjoining operation or maintenance of premises for gambling or games of chance does not deprive of equal protection of law (Rev. Gen St. 1920, § 3223 et seq., 5499, 5500, 5514, 5624, 5639). A proceeding by suit in equity, pursuant to section 3223, Rev. Gen. Stats. 1920, to suppress by injunction, as a public nuisance, the operation or maintenance of premises where gambling or games of chance are engaged in in violation of law, does not deprive the defendant in such cases of the equal protection of the law.

Statute authorizing enjoining operation or maintenance of premises for gambling or games of chance does not subject one to jeopardy twice for same offense (Rev. Gen. St. 1920, § 3223 et seq.; Declaration of Rights, § 12). The provisions in section 3223 et seq., Rev. Gen. Stats. 1920, authorizing a proceeding to suppress by injunction, as a public nuisance, the operation or maintenance of premises where gambling or games of chance are engaged in in violation of law, does not violate the constitutional guaranty that 'no person shall be subject to be twice put in jeopardy for the same offense.'

Equity may not enjoin commission of crime, nor will equity prevent act merely for illegality. In this state, courts of equity have no jurisdiction to enjoin the commission of crime, nor will equity act to prevent an illegal act merely because it is illegal. In such cases resort must be had to the criminal courts, which possess ample power to punish the wrongdoer.

Enjoining operation or maintenance of premises for gambling is subject of equity jurisdiction, though to irreparable damage to property right is involved (Rev. Gen. St. 1920, § 3223 et seq.; Const. art. 5, § 11). The proceeding by suit in equity, authorized by section 3223 et seq., Rev. Gen. Stats. 1920, to suppress by injunction, as a public nuisance, the operation or maintenance of premises where gambling or games of chance are engaged in in violation of law, is a proper and legitimate subject of equity jurisdiction in this state, even though no irreparable damage to a property right of the complainant is involved. The real complainant in such a suit being the state, the presence of actual injury is not an essential element of, nor a prerequisite to, chancery jurisdiction.

There is distinction between enjoining commission of crime and enjoining public nuisance. There is a manifest distinction between enjoining an individual from committing a crime and enjoining the owner of property, or its possessor, from using his property in a manner or for a purpose which is duly declared to constitute a public nuisance because such use is subversive of the public peace or morals.

State may enjoin public nuisance, though it could resort to criminal prosecution, and may resort to either method or both (Rev. Gen. St. 1920, § 3223 et seq.). When a statute has properly declared the premises where gambling or games of chance are carried on to be a public nuisance, the state may suppress that nuisance by a suit in equity, notwithstanding it at the same time could also resort to criminal prosecution. The state may resort to either method, or both.

Legislature may not arbitrarily declare act nuisance, but in defining nuisances, may exercise broad discretion. It does not lie within the legislative power to arbitrarily or capriciously declare any or every act a nuisance, but in defining nuisances the Legislature may rightfully exercise a broad and extended discretion.

The case of Johns v. Smith, 77 Fla. 398, 81 So. 514, is distinguishable from this case in that the transaction involved in Johns v. Smith possessed none of the essentials of a 'pool' of money, in which some of the donors (depending upon the result of a horse race) would receive back from the 'pool' more than they contributed thereto, while others would lose their entire contribution.

Keeping premises where gambling is practiced is abatable by injunction (Rev. Gen. St. 1920, §§ 3223 et seq., 5499, 5514, 5639). The keeping of premises where gambling is practiced in violation of section 5499 or of section 5514, Rev. Gen. Stats. 1920, is abatable by injunction under the provisions of section 3223 et seq., and section 5639, Rev. Gen. Stat. 1920.

Ejusdem generis rule of construction applies to general provisions of statute for abatement of public nuisance (Rev. Gen. St. 1920, § 3223 et seq., and § 5639). Construed ejusdem generis, the general provision of section 5639, Rev. Gen. Stat. 1920, 'or any place where any law of the state of Florida is violated,' should be construed as if it had been written: 'Or any place where any law of the state of Florida, of the same kind or species as those specifically mentioned, is violated.'

Appeal from Circuit Court, Broward County; C. E. Chillingworth, judge.

COUNSEL

Mitchell D. Price, Robert J. Boone, and Albert D. Hubbard, all of Miami, and W. C. Hodges and W. J. Oven, both of Tallahassee, for appellants.

James M. Carson, of Miami, for appellee.

OPINION

STRUM J.

The state of Florida, upon the relation of John M. Bryan, a citizen of Broward county, as complainant below, instituted a suit in equity against Pompano Horse Club, Inc., and others, as defendants below, seeking the abatement by injunction of certain acts alleged to constitute a nuisance.

The bill of complaint alleges in substance that the defendant Pompano Horse Club is in possession of, keeps and maintains in Broward county an inclosure upon certain described lands within which inclosure is embraced a race track or race course, a grand stand wherein those who attend said races sit for the purpose of viewing them, 'and a betting ring where wagers are openly made and accepted upon the outcome of said races'; that said defendant has conducted and caused to be run certain horse races on said race track situated on said premises, said races being run in the presence of...